A solicitor-judge who requested data from the Judicial Appointments Commission under the Freedom of Information Act has accused the body of seeking to avoid public scrutiny.

The accusation was made in opening submissions by His Honour Judge Abbas Mithani in a two-day hearing in the general regulatory chamber of the first-tier tribunal.

The tribunal heard that the Judicial Appointments Commission relied on exemptions not to answer some of Mithani's requests, which were made in March 2021. He told the tribunal that the use of the exemptions was incorrect. 'A central part of my case is that the reason the JAC is refusing to provide answers to the remaining questions is because they wish to avoid public scrutiny of their affairs,’ Mithani said.

The tribunal heard that the JAC refused to answer a question about the scoring framework of selection exercises because it would impede the proper conduct of public affairs.

To rely on that exemption, Mithani said the JAC needed to demonstrate that there was a person at the JAC qualified to give an opinion, that the qualified person confirmed the information requested would likely prejudice the conduct of public affairs and that the opinion was reasonable.

‘Essentially, there must have been in place at the time when the response or FOI request was made a person at the JAC being qualified by being properly authorised by a minister of state. There was no such authorisation. There has never been any such authorisation at any time in the history of the JAC until 10 October 2022,’ he told the tribunal.

Mithani said it was for the JAC to demonstrate that the exemptions could be relied upon. ‘In a situation like this, where the citizen has no information about the information that the JAC holds and in relation to the appropriateness of how a public body acts, then it has to be cogent evidence.’

Barrister Natasha Simonsen, for the JAC, said the issues before the tribunal were narrow and discrete, and not about the overall operation of the JAC, its statutory framework, diversity of the judiciary, promotion or selection of judges, or merits test.

On the allegation that the JAC sought to avoid public scrutiny, Simonsen said the commission had to ensure any disclosure was properly and lawfully made, that information provided in confidence by candidates and as part of the appointments process was protected, and that the statutory regime was upheld.

The tribunal heard Mithani made eight specific requests under the Freedom of Information Act. Simonsen said an error was made ‘honestly and in good faith’ in a response to Mithani. ‘However, even if that exemption was not correctly invoked at the time, the exemption is now properly engaged.’

Simonsen said requests were made about candidate diversity data, which fell away because the JAC did not hold the information requested.

On a request for complaints data, the JAC provided much of the information at an earlier stage in annual reports, Simonsen said. While there was a gap in information between March 2020 and March 2021 because of changes in practice due to Covid, that information has since been provided, Simonsen said.

The hearing continues.