First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Appeal Reference: EA/2020/0051
Decided without a hearing
On 30 June 2021
Before
JUDGE SOPHIE BUCKLEY
AIMÉE GASSTON
KATE GRIMLEY EVANS
Between
EDWARD WILLIAMS
Appellant
and
THE INFORMATION COMMISSIONER
First Respondent
DECISION
1. For the reasons set out below the appeal is dismissed.
REASONS
Introduction
1. This is an appeal against the Commissioner’s decision notice FS50867142 of 3
February 2020 which held that the Chief Constable of Devon and Cornwall Police
(‘the Police’) was entitled to rely on s 31, 38 and 40 of the Freedom of Information
Act (FOIA) to withhold the remaining information. The Commissioner required no
steps.
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Factual background to the appeal
2. In 2012 an individual died in police custody after being restrained with an
emergency response belt (ERB). A number of Police staff members were charged
with and acquitted of manslaughter by gross negligence. The Police with
prosecuted by the Health and Safety executive for safety breaches. They pleaded
guilty and were fined in excess of £230,000. It is possible that there will be further
proceedings and an inquest arising out of the death. The request is for information
relating to that event.
Request and Decision Notice
3. The Appellant made the request which is the subject of this appeal on 3 May 2019
to the Police in the following terms:
Background:
[link to newspaper report on the incident, redacted]
1. Disclose all images held of your victim on the day he was killed.
2. Disclose the custody record.
3. Disclose your guidance, rules etc. for use of ERB.
4. Disclose all data relating to the training, education etc. that those who
applied the ERB had undertaken at time of the victim’s death.
5. Disclose how much you have paid in legal fees for this killing.
4. The Police replied to the request on 5 June 2019, confirming that it held information
falling within the terms of the request, that it considered that s 30 (investigations
and proceedings), s 38 (health and safety) and s 40 (personal information) applied
and that it would take a further 20 working days to make a decision as to where the
public interest lay under s1(1)(b).
5. The Police provided a substantive response on 5 July 2019. It withheld the
information under s 30(1), 38(1) and 40(2).
6. The Appellant requested a review on 5 July 2019 and the decision was upheld on
review on 14 August 2019, with the exception of parts (3) and (5) of the request. In
relation to parts (3) and (5) the review concluded that no exemption applied and
provided certain information in response to those parts of the request.
7. The Appellant complained to the Commissioner on 17 August 2019. During the
course of the Commissioner’s investigation the Police withdrew their reliance on s
30(1) and relied on s 31(a), (b) and (g) instead.
8. In a decision notice dated 3 February 2020 the Commissioner concluded that the
Police were entitled to rely on s 31, 38 and 40 of the Freedom of Information Act
(FOIA) to withhold the remaining information. The Commissioner required no
steps. Her investigation was limited to parts 1, 2 and 4 of the request.
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9. In relation to s 30(1) she held that the arguments provided by the Police related to
the relevant applicable interests, namely the prevention or detection of crime, the
apprehension or prosecution of offenders and the ascertaining of whether any
person is responsible for improper conduct. She was satisfied that the prejudice
envisaged was real and of substance and that there was a causal relationship
between the disclosure of the requested information and the prejudice which the
exemption was designed to protect. She considered that the disclosure of evidence
being considered in an ongoing misconduct investigation clearly had the potential
to affect the investigation’s outcome and would almost certainly negatively affect
public perceptions of its integrity. She was satisfied that section 31(1)(g) by way of
s 31(2)(b) was engaged.
10. The Commissioner also considered that 31(1)(a), (b) and (c) were engaged. She
considered that with a coroner’s inquest and possible proceedings against the Police
outstanding, disclosure into the public domain of evidence that would form a key
part of any such proceedings was likely to prejudice their integrity and fairness.
Premature disclosure of key evidence risks undermining public confidence in the
integrity and fairness police investigations which could jeopardise the Police’s
ability to conduct further investigations. If the credibility of guarantees of
confidentiality where enquiries are ongoing is undermined, this may deter people
from cooperating with enquiries or volunteering information which would impact
on the Police’s ability to conduct efficient and well evidenced investigations.
11. In relation to the public interest test, the Commissioner accepted that openness itself
is in the public interest and that public confidence will be increased by openness
and transparency with regard to actions taken by the police. She considered that in
this case there was a clear public interest in the independent scrutiny of the events
which led up to the death. The Commissioner noted that a significant amount of
relevant information was already in the public domain. She held that this went
some considerable way towards satisfying the public interest in scrutinising the
Police’s handling of these events.
12. Disclosure of the custody record, prior to proceedings being concluded could
prejudice the outcome and would be counter to the public interest in justice and
could undermine public confidence in their eventual findings. The Commissioner
also considered that the likely adverse impact on the Police’s investigations and
efficient law enforcement was not in the public interest.
13. The Commissioner concluded that the public interest in maintaining the exemption
outweighed the public interest in disclosure.
14. In relation to s 38(1)(a) the Commissioner accepted that it was engaged. She
concluded that an individual’s mental wellbeing fell within the scope of the
exemption and that she was satisfied that the harm the Police envisaged related to
the applicable interest. She considered it self-evident that the consequences of
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disclosure of unreleased footage of the deceased would cause significant distress
and upset to the deceased’s family members and friends.
15. In relation to the public interest under s 38 the Commissioner held that there was a
clear public interest in the police being open and transparent with regard to
information about individuals who have died in or shortly after being held in police
custody. She notes that the incident remained a live matter and it is not the case that
disclosure would lead to a fresh look at a matter which had otherwise been
forgotten. Some images have already been released to the public which goes a
considerable way to meeting the public interest in the matter.
16. The Commissioner concluded that the public interest in disclosure was heavily
outweighed by the public interest in maintaining the exemption in order to
safeguard the mental health of the deceased’s family.
17. In relation to s 40 the Commissioner concluded that details of the training and
education of those who used the ERB was information relating to individuals who
were identifiable from information available in the public domain. She held that
disclosure would contravene principle (a). The Commissioner held that disclosure
would inform public debate and therefore there is a legitimate interest which would
be furthered by the request and that disclosure was necessary to meet those
legitimate interests.
18. The Commissioner determined that the data subjects would have a reasonably held
expectation that the withheld information would not be disclosed more widely and
for purposes not directly to do with any further, formal investigation into the
incident. Disclosure would effectively re-open for public debate matters which have
been concluded, given that the data subjects have been acquitted of all criminal
charges and misconduct charges against them withdrawn. The Commissioner
considered that disclosure would be unfair, in that the individuals would have a
reasonable expectation of being able to move on with their lives once acquitted. She
accepted that the data subjects would find it highly distressing to have the
information disclosure to the world at large and that it might leave them open to
personal attacks from members of the public who disagreed with the verdicts.
19. The Commissioner considered that the level and adequacy of officer training with
regard to ERB use is something which a formal investigation with full access to the
full facts of the matter and an in-depth knowledge of processes is the appropriate
forum for such a determination as opposed to a less informed evaluation by the
general public. She concluded that disclosure would not be lawful and there was
insufficient legitimate interest to outweigh the data subject’s fundamental rights
and freedoms.
Grounds of Appeal
20. The Grounds of Appeal in summary are:
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20.1. The Commissioner did not ask Mr Williams for his views when the Police
relied on different exemptions;
20.2. When the internal review/final response was served on 14 August 2019
the only open matter was the misconduct proceedings against the two
detention officers;
20.3. The Commissioner erred in its application of s 31. Mr Williams believes
that the custody record was referred to in open court at the criminal
proceedings and later health and safety proceedings. The Commissioner
did not explain why releasing the custody record would prejudice the
misconduct proceedings. The custody record is a police document not
information volunteered by the public. It can be inspected by the detainee,
a legal representative or an appropriate adult.
20.4. Given that some images had been released it was unreasonable for the
Commissioner to conclude that Mr Williams was not entitled to any of
the images. Some of the video was shown to the jury in the trial and
therefore shown to the world.
20.5. The Commissioner was wrong to conclude that releasing images would
affect the family. They have called upon the coroner to examine the
circumstances publicly, openly, in honestly and constructively.
20.6. The Commissioner was wrong to conclude that the public interest
balance favoured withholding the images.
20.7. The personal data is professional data.
20.8. It is for the Commissioner to prove that the personal data was not
released in open court.
20.9. The Commissioner was wrong to take account of the fact that release
would reopen public debate.
The Commissioner’s response
21. The Commissioner’s response states as follows.
Tribunal’s jurisdiction
22. The jurisdiction of the Tribunal is not supervisory – the appeal is not a judicial
review of the Commissioner’s processes. The Tribunal has no power to quash the
Decision Notice on the basis of a procedural flaw in the Commissioner’s processes.
The Commissioner operated within the lawful limit of her power. There is no
requirement as to the number of times she must seek representations. Consulting
Mr Williams a second time would not have changed the decision and would have
caused delay.
Section 31
23. The custody record is not a public document.
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24. The Commissioner upheld s 31(1)(g) by way of s 31(2)(b) because
24.1. there was a live Independent Office for Police Conduct (IOPC)
misconduct investigation and disclosure to the world at large had the
clear potential to prejudice the investigation and negatively affect public
confidence in the investigation;
24.2. further proceedings were reasonably in prospect and the custody record
would be central evidence in those proceedings. The IOPC delay
publication of their conclusions until after an inquest for the same reason;
24.3. Mr Williams has not explained the basis of his belief that the custody
record was referred to in open court or exactly what he alleges has been
read from the custody record. The fact that Mr Williams seeks to access it
under the FOIA, rather than the Civil Procedure Rules (CPR) suggests
that it has not been referred to in open court.
25. In relation to s 31(1)(b) and (c) the police submitted that to release the information
would indicate to those providing information that it was likely to become public
and this would deter information sharing in other cases. In any event any inquest
is likely to be a jury inquest. The relevant interests are likely to be prejudiced if the
custody record is prematurely made public to the world at large prior to the
relevant inquest proceedings.
26. There is a clear causal relationship between the disclosure of the custody record and
the prejudice to those interests.
27. The public interest in maintaining the s 31 exemptions outweighs the public interest
in disclosing the custody record.
28. The Commissioner no longer pursues s 31(1)(a)
Section 38(1) Health and safety
29. This exemption relates to photographic and video images of the deceased while in
police custody, up to the point he was transported to hospital. Some images have
already been released in to the public domain as a result of the criminal trials and
investigations. Disclosure of further images would undoubtedly cause significant
upset and distress to the deceased’s family and friends.
30. Mental wellbeing is within the scope of s 38. The mental wellbeing of the deceased’s
family and friends would be caused by disclosure. There is no control over the
information once released to the world at large. Family and friends are likely to feel
that it is undignified and violating to broadcast the deceased’s final moments to the
world. The exemption applies.
31. The public interest in maintaining the exemption outweighs the public interest in
disclosing the information. There is a public interest in transparency and in relation
to understanding what happens to individuals in police control. This information
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helps the public to understand the actions of the police and take action to hold them
to account.
32. In favour of maintaining the exemption:
32.1. The likely level of distress to family and friends is high;
32.2. The fact that some highly distressing images have already been published
is not a reason to enable those media outlets to perpetrate the same harm
again with new images;
32.3. Even if video was shown to the jury, there is a difference between
showing a video in controlled, albeit public, conditions in Court. The
request is not confined to the CCTV shown in court;
32.4. Other individuals who did not know the deceased may be distressed by
the images;
32.5. It is not necessary to see the images in order to understand the content of
the acts leading to the death;
32.6. The issue of transparency is already addressed through two concluded
judicial processes and an IOPC investigation and is likely to be addressed
in further judicial processes, processes which are better placed to weigh
and contextualise the information in the images versus disclosure to the
world at large.
Section 40(2) Personal information
33. This exemption relates to details of the training and education of those who used
the ERB.
34. The information is personal data. It would include the content of the training
materials but would be connected to a confirmation that it is training material
delivered to particular living individuals because that is the scope of the request.
The individuals are identifiable from information in the public domain. There is no
distinct category of ‘professional data’.
35. It is not in dispute that there is a legitimate interest in being able to understand how
the Police operated in this case and used the ERB. The Commissioner has accepted
that disclosure would inform public debate and that serious matter and is necessary
to meet the legitimate interest.
36. The data subjects did not consent to disclosure. A reasonable expectation that the
public could know the content of training programmes generally is different from
an expectation by an individual police officer that all information relating to their
training would be disclosed. Staff members would not have expected tailored
information as to their training to be later released.
37. This is heightened where:
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37.1. The data subjects have already faced the highest level of scrutiny and
been acquitted;
37.2. Those accused of crimes must be allowed to move on with their lives;
37.3. They faced IOPC investigation in 2019 with no action taken;
37.4. Release of the data would cause the matter to resurface with an intense
focus on the individuals and their training rather than processes in
general at the Police.
38. There is significant information about the relevant matters already in the public
domain and the benefit added would be marginal. Weighed against that is the
significant further incursion into the lives of the data subjects who have been
criminally acquitted. The Police have accepted culpability in civil proceedings and
paid a significant fine. The correct balance was struck by the Commissioner in
determining that public interest favoured maintaining the exemption.
Legal framework
Law enforcement
39. S 31 FOIA provides a qualified exemption subject to the public interest test in
respect of information relevant to specific areas of law enforcement:
S 31 Law enforcement
(1) Information which is not exempt information by virtue of section 30 [investigations
and proceedings conducted by public authorities] is exempt information if its disclosure
under this Act would, or would be likely to, prejudice-
(a) the prevention and detection of crime,
(b) the apprehension or prosecution of offenders,
(c) the administration of justice,
…
(g) the exercise by any public authority of its functions for any of the purposes specified
in subsection (2),
…
(2) The purposes referred to in subsection (1)(g) … are –
…
(b) the purpose of ascertaining whether any person is responsible for any conduct
which is improper.
40. The exemption is prejudice based. ‘Would or would be likely to’ means that the
prejudice is more probable than not or that there is a real and significant risk of
prejudice.
41. S 31 is a qualified exemption, and so the tribunal must go on to consider if the public
interest in maintaining the exemption outweighs the public interest in disclosure.
S 40 - personal data
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42. The relevant parts of s 40 of FOIA provide:
(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 does not fall within subsection (1), and
(b) either the first, second or the third condition below is satisfied.
(3A) The first condition is that the disclosure of the information to a member of the public
otherwise than under this Act -
(a) would contravene any of the data protection principles, or..
43. Personal data is defined in s 3(2) of the Data Protection Act 2018 (DPA) as:
Any information relating to an identified or identifiable living individual
44. The data protection principles are set out Article 5(1) of the GDPR and s 34(1) DPA.
Article 5(1)(a) GDPR provides: that personal data shall be processed lawfully, fairly
and in a transparent manner in relation to the data subject. Article 6(1) GDPR
provides that processing shall be lawful only if and to the extent that at least one of
the lawful bases for processing listed in the Article applies.
45. The only potentially relevant basis here is article 6(1)(f):
Processing is necessary for the purposes of the legitimate interests pursued by the controller or by a
third party, except where such interests are overridden by the interests or fundamental rights and
freedoms of the data subject which requires protection of personal data, in particular where the data
subject is a child.
46. The case law on article 6(1)(f)’s predecessor established that it required three
questions to be answered, which we consider are still appropriate if reworded as
follows
1. Is the data controller or a third party pursuing a legitimate interest or interests?
2. Is the processing involved necessary for the purposes of those interests?
3. Are the above interests overridden by the interests or fundamental rights and
freedoms of the data subject?
47. S 40(3A) is an absolute exemption and therefore the separate public interest
balancing test under FOIA does not apply.
S 38 – health and safety
48. S 38 FOIA provides that information is exempt information if its disclosure would
or would be likely to:
(a) Endanger the physical or mental health of any individual, or
(b) Endanger the safety of any individual.
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49. S 38 is a qualified exemption and so the tribunal must go on to consider if the public
interest in maintaining the exemption outweighs the public interest in disclosure.
The Task of the Tribunal
50. The tribunal’s remit is governed by s 58 FOIA. This requires the tribunal to consider
whether the decision made by the Commissioner is in accordance with the law or,
where the Commissioner’s decision involved exercising discretion, whether she
should have exercised it differently. The tribunal may receive evidence that was not
before the Commissioner and may make different findings of fact from the
Commissioner.
Issues
51. The issues we have to determine are:
Section 31 – law enforcement
51.1. Whether disclosure would or would be likely to prejudice the
apprehension or prosecution of offenders, the administration of justice,
or the exercise by any public authority of its functions for the purpose of
ascertaining whether any person is responsible for any conduct which is
improper. This entails:
51.1.1. Identifying the applicable interest within the exemption.
51.1.2. Considering the nature of the prejudice (identifying a causal
relationship and that it passes a de minimis threshold)
51.1.3. Determining the likelihood of prejudice (more probable than
not or a real and significant risk of prejudice)
51.2. In all the circumstances of the case, whether the public interest in
maintaining the exemption outweighs the public interest in disclosing the
information. This includes:
51.2.1. Identifying what actual harm or prejudice the proposed
disclosure would or would be likely to cause, focussing on the
public interests expressed in the particular exemption in issue.
51.2.2. Identifying what actual benefits the proposed disclosure
would or would be likely to cause.
Personal data
51.3. Does the information relate to an identified or identifiable living
individual?
51.4. Is the data controller or a third party pursuing a legitimate interest or
interests?
51.5. Is the processing involved necessary for the purposes of those interests?
51.6. Are the above interests overridden by the interests or fundamental rights
and freedoms of the data subject?
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S 38 – health and safety
51.7. Whether disclosure would be likely to endanger the physical or mental
health of any individual. This entails:
51.7.1. Identifying the applicable interest within the exemption.
51.7.2. Considering the nature of the danger (identifying a causal
relationship and that it passes a de minimis threshold)
51.7.3. Determining the likelihood of danger (more probable than not or
a real and significant risk of endangerment)
51.8. In all the circumstances of the case, whether the public interest in
maintaining the exemption outweighs the public interest in disclosing the
information. This includes:
51.8.1. Identifying what actual harm or prejudice the proposed
disclosure would or would be likely to cause, focussing on the
public interests expressed in the particular exemption in issue.
51.8.2. Identifying what actual benefits the proposed disclosure would
or would be likely to cause.
Evidence
52. We have read a bundle of documents, which we have taken account of where
relevant. Although the bundle is labelled ‘closed’, the tribunal notes that this is
shorthand for the fact that it is subject to a rule 14 order dated 12 February 2021
which provides, in essence, that the bundle is not to be disclosed by Mr. Williams
to a third party.
Discussion and conclusions
Lack of consultation
53. The tribunal reaches a decision de novo and the claimant has had the opportunity
to make submissions on all exemptions now relied upon, which we will take into
account. Even if a procedural error has been made, errors such as a failure to invite
submissions on a particular point can be cured by the tribunal exercising its full
merits jurisdiction.
Section 31 – law enforcement
54. This section is said to apply to the custody record.
55. We consider firstly s 31(1)(g) taken with 31(2)(b).
Is the exemption engaged?
56. The question for the tribunal is whether disclosure would or would be likely to
prejudice the exercise by any public authority of its functions for the purpose of
ascertaining whether any person is responsible for any conduct which is improper.
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57. The applicable interest is clear on the face of the sections: it is to protect a public
authority’s ability to exercise its functions for the purpose of ascertaining whether
any person is responsible for any conduct which is improper.
58. The outcome of the internal review was communicated to Mr. Williams on 14
August 2019. At that date the IOPC investigation was ongoing. It concluded in
October 2019. Although IOPC directed disciplinary proceedings in relation to the
police officers concluded in July 2019, disciplinary proceedings against two
detention officers remained live and the IOPC did not withdraw its decision to
direct misconduct proceedings until October 2019. A decision on publishing the
IOPC reports was to be made once all proceedings had concluded, including a
potential inquest. We accept the evidence by that Police that an inquest was ‘likely’
to be held in 2021, particularly in the light of that fact that the Police state that the
2021 date had been confirmed with the local coroner with the officer in charge.
59. None of the parties have raised the issue of whether an inquest or IOPC directed
disciplinary proceedings involve the exercise by a public authority of its functions
for the purpose of ascertaining whether any person is responsible for any conduct
which is improper. Taking into account the potential outcomes of those proceedings,
we accept that all those proceedings involve a public authority exercising its
functions for the purpose of ascertaining whether any person is responsible for any
conduct which is improper.
60. The nature of the prejudice identified by the Police is that disclosure of the custody
record had the potential to undermine and prejudice the outcome of the misconduct
proceedings and the inquest. We accept that this prejudice is relates to the
applicable interest, and that there is a causal relationship between the release of the
custody record, a document likely to be central evidence in those proceedings, and
the identified prejudice.
61. We have considered whether there is a real and significant risk of that prejudice.
Although the custody record is open to inspection by certain individuals it is not a
public document. We note that Mr. Williams believes that the custody record has
been referred to in open court, although we do not know what this belief is based
on and there is no evidence before us to support a finding that the custody record,
whether all or in part, has been already made public in the criminal proceedings.
62. We accept that there is a real and significant risk that the release of a central part of
evidence out of context and not as part of a reasoned judgment while misconduct
proceedings are ongoing and before an inquest has started is likely to undermine
confidence in those proceedings. There is a real and significant risk of the public
forming a view on the basis of the partial release of evidence out of context,
undermining the public’s confidence in any process which reaches a different
conclusion.
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63. Further, any inquest would be likely to be a jury inquest. We note that the IOPC
decided to delay the publishing of their reports until after the inquest was
concluded. We conclude that releasing a central piece of evidence which risks the
public reaching a premature view on partial evidence taken out of context, carries
the same risks in relation to the members of the jury. We accept therefore that there
is also a real and significant risk of undermining the proper operation of the inquest.
64. On this basis we conclude that the exemption is engaged.
Does the public interest in maintaining the exemption outweigh the public interest in disclosing
the information?
65. We accept that there is an extremely strong public interest in public scrutiny of the
actions of the Police where a vulnerable individual has died in police custody in the
particular circumstances of this case. However we find that there is limited public
interest in disclosure for this purpose while disciplinary proceedings are in
progress and before an inquest has taken place. We place significant weight on the
risk of undermining public confidence in IOPC directed misconduct proceedings
and in the inquest proceedings. Further, we place very significant weight on the
risk that the inquest proceedings could be undermined in the manner set out above.
There is a clear public interest on the facts of this case in ensuring that the inquest
can operate properly.
66. We conclude that at a point in time where IOPC directed misconduct proceedings
and an inquest are not yet concluded, the public interest strongly favours
withholding the custody record and maintaining the exemption.
67. We conclude that the Police were entitled to withhold the custody record under s
31(1)(g) taken together with s 31(2)(b).
68. Having reached that conclusion we do not need to consider the other subsections
of s 31.
Personal data
Does the information relate to an identified or identifiable living individual?
69. The relevant part of the request asks for ‘all data relating to the training, education
etc. that those who applied the ERB had undertaken at time of the victim’s death.’
70. The individuals involved are identifiable via a basic internet search. Even if the
information does not contain their names, the request itself links those individuals
to that information. On that basis we find that the scope of the request will only
catch information which relates to those individuals, and that they are identifiable
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when the information is combined with other information readily available to and
reasonably likely to be used by the ‘motivated intruder’.
71. There is no separate category of ‘professional data’ although the specific nature of
the personal data may be a relevant factor at other stages in the consideration of s
40(2).
Is the data controller or a third party pursuing a legitimate interest or interests?
72. We accept that Mr. Williams is pursuing a legitimate interest of scrutiny of the
actions of the police in relation to this incident and in particular in relation to
scrutinising the use of the ERB.
Is the processing involved necessary for the purposes of those interests?
73. “Necessary’ should be given its ordinary meaning: more than desirable but less
than indispensable or absolute necessity. Accordingly the test is one of “reasonable
necessity”, reflecting the European jurisprudence on proportionality, although this
may not add much to the ordinary English meaning of the term. The test of
reasonable necessity itself involves the consideration of alternative measures, and
so “a measure would not be necessary if the legitimate aim could be achieved by
something less”; accordingly, the measure must be the “least restrictive” means of
achieving the legitimate aim in question (Goldsmith International Business School
v Information Commissioner and the Home Office [2014] UKUT 563).
74. We do not agree with the Commissioner that disclosure of this personal data is
reasonably necessary for the purposes of those legitimate interests. There are other
measures which can achieve those aims. The actions of the individuals on the day
in question have been or will be subject to scrutiny by the criminal courts, by the
IOPC, in misconduct proceedings and in the proposed inquest. The training
programmes or education or relevant processes and procedures on ERB operated
by the Police could be effectively scrutinised without the release of personal data
relating to these particular individuals. It is unclear to the tribunal how it is
reasonably necessary for the purposes of the legitimate aim pursued by Mr.
Williams for the public to see the training data related to those individuals, given the
past and future scrutiny already applied to the actions of those individuals through
other processes.
Are the above interests overridden by the interests or fundamental rights and freedoms of the
data subject?
75. We have gone on, in any event, to consider what our conclusion would have been
if we had concluded that disclosure was reasonably necessary for the purposes of
that legitimate interest.
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76. Mr. Williams states that this information ‘may well’ have been released in open
court and that it is for the Commissioner to prove that this information has not been
released in open court. The tribunal disagrees. There is no evidence before us to
support a finding that this information is already in the public domain, and there is
no presumption that operates to place a burden on the Commissioner to disprove
this.
77. There has been no consent to disclosure by the individuals. We find that there
would not be a reasonable expectation that an individual’s training records, as
opposed to the general content of police training programmes, would be made
public. We take account of the fact that this personal data relates to work rather
than home life, but in this particular case the data relates to matters which had and
will have a particular impact on these individuals’ lives. They had faced criminal
proceedings and had been acquitted. Some of them were subject at the relevant
time to ongoing disciplinary proceedings. The context of the data would therefore
make release highly distressing to the data subjects.
78. Even if we had concluded that disclosure was reasonably necessary, the factors that
we refer to above would have been highly relevant to whether or not the
fundamental rights and freedoms of the data subject override the legitimate
interests relied on. Only very marginal, if any, benefit would be added by the
release of this particular information, given the other processes that had already
been completed, were in process, or were still to come and the limited additional
value of information about the particular training of these individuals compared
to information on general police training on the use of ERB.
79. Taking into account all the above we would have concluded that the legitimate
interests were overridden by the interests or fundamental rights and freedoms of
the data subjects.
S 38 – Health and safety
80. This exemption relates to part 1 of the request i.e. images held of the deceased on
the day he died. The applicable interest in the exemption is the protection of
physical or mental health.
81. The Police relies on the distressing impact that these images would have on the
friends and family of the deceased. We accept, as a matter of common sense, that
viewing images of a friend or family member on the day that he died in these
particular circumstances has a causal relationship with endangering that family
member or friend’s mental health through distress.
82. When considering whether there is a real and significant risk of danger to mental
health we have taken account of the fact that we do not have any evidence from the
deceased’s family and friends on the impact of the release of these images. Mr.
Williams has drawn the tribunal’s attention to an article in the Guardian on 24
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October 2019 in which there was a quote from the deceased’s family in relation to
the decision by the IPOC to withdraw its decision to direct misconduct proceedings
in October 2019:
[redacted]’s family said: “We are completely unable to comprehend how
people who were charged with manslaughter can now be allowed to face
absolutely no scrutiny for their work practices in relation to [redacted]’s
death.
This decision feels outrageously and ethically wrong to our family; we have
been let down by the IOPC.” The family have long said achieving justice for
[redacted] may take many years and will now work towards an inquest. “ We
call upon the coroner to examine the circumstances surrounding [redacted]’s
death publicly, openly, honestly and constructively, ” they said.
83. We do not accept that this article is evidence that the mental health of the deceased’s
family and friends would not be endangered by the release of the images in
question. The fact that his family have called for an inquest to examine the
circumstances ‘publicly openly, honestly and constructively’ does not mean that
they would not be distressed by the release of the requested images.
84. In the absence of any direct evidence of the effect of the release of the requested
images on friends and family, we have taken a common sense approach to the likely
impact. We take account of the fact that the images would be placed in the public
domain and their use would be outside the control of the family, friends or any
other body (such as the court, the coroner or the IOPC in other proceedings). The
release of the images would be outside the ongoing processes and not at a time
when the family and friends are expecting the images to be released, or at a time
that they can control. Taking all this into account we conclude that there is a real
and significant risk of danger to mental health by releasing the images. We conclude
that s 38 is therefore engaged.
85. Mr. Williams asserts in his grounds of appeal that the Commissioner was wrong to
conclude that he was not entitled to any of the requested image information,
because some of it was already in the public domain at the time of the request. In
the tribunal’s view, there is a real and significant risk that releasing these images to
the public in response to a freedom of information request would still lead to those
images coming to the attention of friends or family members in an uncontrolled and
unexpected manner, which carries the same risk of distress, even if they had seen
those images before. The tribunal concludes that the exemption is engaged in
relation to all images held by the police within the scope of the request, even those
that have already been released.
86. Mr. Williams is correct to assert that there are times when the public interest
demands that difficult or distressing images should be released. Section 38 is not an
absolute exemption, and we must consider if the public interest in maintaining the
exemption outweighs the public interest in disclosing the information.
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87. In relation to images that are already in the public domain, we find that there is
very limited public interest in releasing them again in response to this request, and
this is clearly outweighed by the public interest in maintaining the exemption.
88. In relation to additional images held by the police, we consider that there is some
public interest in disclosure. There is a general public interest in disclosure of
information held by public authorities. Further, it is possible that seeing the images
might encourage the public to engage in public debate on this issue. However we
conclude that the release of new images in an uncontrolled manner to the public,
while proceedings were still ongoing and further proceedings were likely to take
place, is unlikely to significantly add to public debate or assist in effective scrutiny
of the police’s actions. We agree with the Commissioner’s observation in paragraph
53 (f) of their response to the Grounds of Appeal that it is not necessary to see the
images to understand the actions that lead to the death of the individual involved.
Further the public interest in scrutiny and transparency in relation to the police’s
actions is served to a large extent by those ongoing or future processes.
89. The public interest in maintaining the exemption is largely already reflected in our
discussions as to why the exemption is engaged. We agree with the Commissioner
that the level of distress of seeing the images is likely to be high partly because of
the nature of the images and partly because of the lack of control over the
dissemination of images.
90. Taking into account all the above, we conclude that the public interest favours
maintaining the exemption.
91. For the reasons set out above this appeal is dismissed.
Signed Sophie Buckley
Judge of the First-tier Tribunal
Date: 23 July 2021
Promulgated: 23 July 2021
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