The body responsible for recruiting judges has admitted to a ‘technical breach’ of the Freedom of Information Act when it refused to disclose certain data requested by a solicitor-judge.

The ‘technical breach’ was admitted in the skeleton argument for the Judicial Appointments Commission, whose refusal to disclose certain data to solicitor-judge Abbas Mithani in 2021 was the subject of a two-day tribunal hearing last week.

The JAC relied on section 36 of the act - prejudice to the effective conduct of public affairs - to refuse disclosure of the scoring framework for a circuit judge competition. According to Information Commissioner’s Office guidance, section 36 requires a ‘reasonable opinion’ from the public authority’s ‘authorised person’ that the exemption is engaged.

Questioned by Mithani on authorisation, Ian Thomson, the JAC’s head of corporate services, told the tribunal that he understood the chief executive to be the ‘authorised person’ until a situation arose ‘when in dealing with another FOI request we received legal advice we should check to see whether we had that authorisation’.

Neither the commission nor the Ministry of Justice could locate the ministerial authorisation on their records. The commission obtained a new ministerial authorisation, which was granted in October 2022. Barrister Natasha Simonsen, for the JAC, told the tribunal that even though the section 36 exemption was not correctly invoked at the time of responding to Mithani, ‘the exemption is now properly engaged’.

Mithani questioned the commission’s refusal to disclose candidate information for certain competitions on the grounds that it was personal data given the commission shared anonymised candidate information in targeted outreach programmes.

Thomson said the commission receives 10,000 applications every year and the information used in support programmes would have been drawn from a wide range of candidates. Mithani requested information for a particular exercise where the number of applicants was small and they could potentially be identified.

The tribunal heard that the commission has a ‘bank of situational questions’ used for recruitment exercises. The commission avoids re-using questions in exercises ‘where the same candidate is applying’, Thomson said. ‘Dry runners’ test situational exercise material to ensure the material is appropriate. ‘If we use selection material again, we try to ensure anyone who participated as a dry runner where the selection material was tested, we will not use that particular material for that exercise.’

Thomson told the tribunal he was aware of consultants who offer to assist candidates applying for judicial appointment, but said the commission never shared situational questions with them.

Closing submissions will be heard in June.