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United Kingdom Information Tribunal including the National Security Appeals Panel |
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You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> McCluskey v Information Commissioner and The Public Prosecution Service for Northern Ireland [2007] UKIT EA_2007_0056 (21 December 2007) URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2007_0056.html Cite as: [2007] UKIT EA_2007_0056, [2007] UKIT EA_2007_56 |
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Appeal Number: EA/2007/0056
Information Tribunal
Appeal Number:
EA/2007/0056
Freedom of Information Act
2000
Decision promulgated 21st
December, 2007
BEFORE
INFORMATION TRIBUNAL DEPUTY
CHAIRMAN
David Farrer
Q.C.
LAY MEMBERS
Ivan Wilson
and
David Wilkinson
Between
KENNETH FRASER
McCLUSKEY
Appellant
and
INFORMATION COMMISSIONER
Respondent
and
THE PUBLIC PROSECUTION SERVICE
FOR NORTHERN IRELAND
Additional
Party
By agreement of the parties
and with the approval of the Tribunal. This appeal was determined on written submissions without an oral hearing, pursuant to Rule 16 of the Information Tribunal (Enforcement Appeals) Rules, 2005 |
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Appeal Number: EA/2007/0056
All references to statutory
provisions are to the provisions of the
Freedom of Information Act, 2000 (“FOIA”) References to “DPA” are to the Data Protection Act,
1998.
Decision
The Tribunal upholds the decision
notice dated 31st. May, 2007 and dismisses
the appeal. Reasons
The Request
1 On 23rd.
November, 2005, the Appellant requested from the Additional
Party (“PPSNI”) a copy of a report with the supporting documentation submitted by Chief Inspector Waterworth on behalf of the Police Service for Northern Ireland to PPSNI, relating to a complaint made by the Appellant against several police officers arising out of an investigation which had ended with the Appellant `s acquittal by direction of the judge of a charge of receiving stolen goods at Craigavon Crown Court on 4th. December, 1998. 2 PPSNI refused such
information by letter of 5th. January, 2006.
Following a request for a review, it maintained that decision, invoking s. 30(1)(a)(b) and (c), 30 (2)(a)(i) and (a)(ii) and s. 40(2) and (3) 3 On 22nd.
May, 2006, the Appellant complained to the Information Commissioner (“the I.C.”). The I.C. commenced his investigation, pursuing at the same time proposals for an informal resolution of the complaint. The result was that, by the time of the Decision Notice, an agreement had been reached whereby the Appellant was allowed to inspect the file, presumably on certain undertakings. |
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Appeal Number: EA/2007/0056
4 The Decision Notice
The I.C. upheld the PPS(NI) `s
refusal and ruled that it had correctly
applied both the s.30 and s. 40 exemptions and that, as to the former group of exemptions, the public interest in withholding the requested information outweighed the public interest in its disclosure. He further found that the PPS(NI) was in breach of s.17(1)(c) and 17(3)(b). There is no appeal against that finding. The points made in the Decision Notice are generally similar to those developed in the I.C. `s Reply, Amended Reply and written submission dated 25th. November, 2007. 5 The Notice of Appeal
The Appellant issued a Notice of
Appeal, pointing out that he had
already been granted access to the whole file at the Belfast offices of PPS (N I). Following directions dated 24th. August, 2007, he submitted additional grounds relating exclusively to the s.30 exemptions. He criticised the I.C `s reliance on Guardian Newspapers Ltd. v Information Commissioner and Chief Constable for Avon and Somerset [2006] /EA / 0017 , arguing that it was distinguishable from this appeal. He further contended that s.30 was not engaged because the Director of Public Prosecutions for Northern Ireland had decided that the evidence obtained following his original complaint did not reveal any offence. Furthermore, there was a clear public interest in disclosing information relating to such a finding in the case of a police officer. In determining this appeal, we have considered as forming the Appellant `s case, his complaint, his correspondence with PPS(NI), the Notice of Appeal and the additional grounds. 7 The PPS(NI)
indicated that it did not wish to add to the submissions of
the I.C. 8 The Facts
They were simple and undisputed. In 1995 the Appellant ran a
plant
sale and hire business in Lisburn, Northern Ireland. On
11th March,
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Appeal Number: EA/2007/0056
1995, police of the R.U.C (as it
then was) Stolen Vehicle Squad
searched his property and seized a number of items of equipment, which they suspected to be stolen goods. Some were returned after examination but the Appellant was tried on a charge of receiving at Craigavon Crown Court in 1998. The Judge withdrew the case from the jury and the Appellant was acquitted by direction. It is plain that the prosecution case finished up in considerable disarray due to incorrect identification or misdescription of many items. Whatever the reason, the Appellant was plainly entitled to feel seriously aggrieved. 9 The Appellant
believed the reason to be a plot to incriminate him
falsely, involving several officers. Through solicitors and later in documents which he submitted personally, he made a number of complaints against officers involved in the investigation, which amounted to accusations of attempting to pervert the course of justice. 10 Chief Inspector
Waterworth was charged with investigating the
complaint. He interviewed the Appellant and all the officers and reviewed the relevant material. He concluded that there was no evidence of criminal conduct. His report was forwarded to the Director of Public Prosecutions for Northern Ireland and was considered by a member of the Independent Commission for Police Complaints. We have seen it or, at least, the material parts of it. 11 The Appellant `s Case
This was an unusual appeal, in
that the Appellant had seen everything that he requested before the appeal by virtue of the agreement to which we shall refer again later. He regarded the adverse decision of the I.C. as inconsistent with the agreement by which he was given access to the information. He questioned whether s.30 was engaged at all and argued that, if it was, the public interest here, especially after eight years, favoured disclosure. He made no submissions at any stage as to the s.40 data protection issues. Since the Decision Notice dealt with them, we have nevertheless considered them. |
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Appeal Number: EA/2007/0056 |
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12 The Commissioner `s Case
Put in very summary form it was this:
• As to s.40(2) and
(3), disclosure of the identities of the officers
and the detailed allegations against them would breach the first data protection principle. • As to the
exemptions claimed under s. 30(1)(a)(b) and (c), 30 (2)(a)(i) and (a)(ii), those provisions were engaged and the public interest favoured withholding the information, given particularly the danger of discouraging witnesses from co – operating with criminal investigations by fears that sensitive information or the fact of their assistance might be publicised to the world at large, including undesirables. Citing the Guardian Case, he argued that the passage of time was of little consequence in this context and that, by analogy with disclosure of information concerning an investigation which ended in an acquittal (see once again the Guardian Case), there was little public interest in access to the facts of a case where the decision was not to prosecute in the first place. |
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13 The relevant law
So far as relevant FOIA s.40 reads:
40. - (1) Any information
to which a request for information relates
is exempt information if it constitutes personal data of which the applicant is the data subject (2) Any information to
which a request for information relates is
also exempt information if- (a) It constitutes personal data which do not fall within subsection (1), and 5 |
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Appeal Number: EA/2007/0056
b) Either the first or the second condition below is
satisfied.
(3) The first condition
is- (a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of "data" in section 1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of the public otherwise than under this Act would contravene- (i) Any of the data protection principles or |
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DPA variously
provides:
1 Basic interpretative provisions. (1) In this Act, unless the
context otherwise requires--
"data" means information which-- (a) Is being processed
by means of equipment operating
automatically in response to instructions given for that purpose, (b) Is recorded with
the intention that it should be processed
by means of such equipment, (c) Is recorded as
part of a relevant filing system or with the
intention that it should form part of a relevant filing system, (d) does not fall
within paragraph (a), (b) or (c) but forms part
of an accessible record as defined by section 68; or (e) is recorded
information held by a public authority and
does not fall within any of paragraphs (a) to (d); “personal data” means data
which relate to a living individual who can be identified – |
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(a) from those data . . . |
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Appeal Number: EA/2007/0056 |
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2 In this Act “sensitive
personal data” means personal data consisting of information as to – |
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(g) the commission or
alleged commission by him of any offence |
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THE DATA PROTECTION
PRINCIPLES Part 1 |
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THE PRINCIPLES
SCHEDULE 1
1 Personal data shall be
processed fairly and lawfully and, in
particular, shall not be processed unless-- (a) at least one of
the conditions in Schedule 2 is met, and
(b) in the case of
sensitive personal data, at least one of the conditions in Schedule 3 is also met. |
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SCHEDULE
2
Conditions relevant for
Purposes of the First Principle
Processing of any Personal
Data |
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Appeal Number: EA/2007/0056
6.
(1) The processing is
necessary for the purposes of legitimate
interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject. SCHEDULE
3
Conditions relevant for
Purposes of the First Principle
Processing of any Sensitive
Personal Data
(The ten conditions, of
which at least one must be fulfilled. It is
unnecessary to list them here, since their details are immaterial. ) FOIA s.30, so far as material, provides:
30. - (1) Information held
by a public authority is exempt
information if it has at any time been held
by the authority for the
purposes of- (a) any investigation which the public authority has a duty to conduct with a view to it being ascertained- (i) whether a person should be charged with an offence, or (ii) whether a person
charged with an offence is guilty of
it, (b) any investigation which is conducted by the
authority |
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Appeal Number: EA/2007/0056
and in the circumstances
may lead to a decision by the
authority to institute criminal proceedings which the authority has power to conduct, or (2) Information held by a
public authority is exempt
information if- (a) it was obtained or recorded by the authority for the purposes of its functions relating to- (i) investigations falling within subsection (1)(a) or (b), (ii) criminal proceedings
which the authority has power
to conduct, 14 Our Findings
There is a fundamental difference
between a right to information, as
provided for by FOIA, and the voluntary disclosure of information by a public authority, pursuant to agreement, such as took place here. Subject to the constraints of DPA or other statutory prohibitions on disclosure, a public authority may, of course, provide information where it could sustain an exemption for which FOIA provides. That is a point which, quite understandably, the Appellant does not seem to have appreciated, when he appealed. It is fair to add that, where such an agreement has been reached, a Decision Notice will not generally be expected to follow. 15 We have no doubt
that the absolute exemption provided for by s.40(2)
was correctly applied by the I.C. and that, for that reason alone, the Decision Notice should be upheld. 16 The data subjects
were the police officers, not the Appellant.. The data
sought were plainly personal
data, as provided for by the definitions in
s.1 of DPA. Indeed they were
“sensitive personal data” within the
definition in s.2 of
DPA.
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Appeal Number: EA/2007/0056
17 We consider that
general disclosure of the file, which would result from
upholding this complaint, would breach the first data protection principle. 18 It would, in a
general sense, be unfair to the officers, given the decision
that no offence was disclosed, evidently approved by Director of Public Prosecutions for Northern Ireland and accepted by the independent monitor. 19 None of the
conditions in Schedule 2 was met, as required by
Paragraph 1(a) of Schedule 1. There was no evidence that disclosure was necessary for the Appellant `s purposes, as required by condition 6 and none of the other conditions could possibly be fulfilled. 20 These being
sensitive personal data, none of the Schedule 3
conditions could be met for the purposes of paragraph 1(b). 21 We do not
consider that this state of affairs could be remedied by
redaction of names or other identifying features, which were central to the investigation. 22 Accordingly, the s. 40(2) exemption
applies.
23 We turn briefly to the application of the s.30
exemptions.
24 The various
provisions referred to by the I.C., s.30(1)(a)(i) and (ii),
30(1)(b) and 30(2)(a)(i) are all engaged because the test is satisfied where the information “has at any time been held “ ( s.30(1) ) or “was obtained or recorded” (s.30(2)(a)) for the prescribed purposes, even though such purposes have been abandoned. 25 However, the
weighing of the public interest does not, in our opinion,
produce a clear – cut result in this case and we have decided to offer no concluded opinion on it, given that this appeal is decided by the application of s.40 anyway. 26 In many cases,
the risk of discouraging witnesses from assisting in
future cases would be a powerful argument for applying the exemption. 10 |
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Appeal Number: EA/2007/0056
Here however, the persons whose
identities and (exculpatory)
accounts would be disclosed were police officers. Without further argument, we are not disposed to rule that the same considerations apply as with ordinary members of the public. A potential witness might well not compare his position with that of a serving police officer 27 The I.C. invited
us to treat an investigation which led to no prosecution
as analogous to an acquittal; as in the Guardian Case. Again, we are far from sure that the two cases are to be equated; indeed there could be a case (though certainly not this one) where the decision not to prosecute, of itself, provided a strong interest in public scrutiny of the evidence. There is a difference, in principle, between a decision taken by a jury in a public court after a contested trial and an executive decision taken, perfectly properly, without any public examination of the evidence. 28 For these reasons
we make no ruling on the public interest issues
which would arise in any decision on s.30. 29 We therefore
uphold the I.C. `s decision as being in accordance with
law and require no further action from the PPS (NI). 30 A Postscript
It is easy to see why an
agreement was reached in this instance, where
the identities of the officers were known to the Appellant and no harm could be done by giving him access to the file. Moreover, the case against disclosure to the world at large, based on s.40(2) was unanswerable. Nothing that follows is intended as a criticism of the solution adopted here. 31 However, where, on a
provisional view of the law and the evidence, information ought probably to be disclosed, then such an agreement may be contrary to the public interest since the agreement will limit access and any other interested party will have to issue a further request. A sequence of agreements designed to buy off unwelcome |
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Appeal Number: EA/2007/0056
publicity would clearly be
contrary to the policy of FOIA. A successful
request opens the doors to everyone. 32 We reiterate that that is not
the case here and that the members of this
Tribunal have not encountered such practices. Nevertheless, it is wise to anticipate and reflect on the consequences of a policy of compromising legitimate requests for information. D.J. Farrer Q.C.
Deputy
Chairman 18th December, 2007 |
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