First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Decision notice FS50867605
Appeal Reference: EA/2020/0181
Considered on the papers
Before
JUDGE CHRIS HUGHES
TRIBUNAL MEMBERS
SUZANNE COSGRAVE & JOHN RANDALL
Between
CENTRE FOR CRIMINAL APPEALS
Appellant
and
INFORMATION COMMISSIONER
First Respondent
Cases
Hazell v Hammersmith and Fulham LBC [1991] 1 All ER 545 (House of Lords),
DECISION
The appeal is dismissed.
REASONS
1. The Appellant is a law firm/charity representing individuals who claim to be
the victims of a miscarriage of justice. The Criminal Cases Review
Commission (CCRC) is the public body responsible for independently
investigating alleged miscarriages of justice. On 26 March 2019 an officer of
the Appellant made an information request under FOIA to CCRC seeking:-
1. The CCRC's list of "criticised experts", which I believe was previously kept in the
Case Guidance Note on Expert Evidence, but which may now be on the CCRC's
SharePoint intranet.
2. Any equivalent lists held by the CCRC regarding criticised law enforcement
personnel or units, criticised lawyers (including solicitors and barristers, defence and
prosecution) and criticised judges;
3. The CCRC's internal guidance on obtaining material from the Forensic Archive (I
understand that the CCRC previously had a Case Guidance Note on this, but again it
may now be on the CCRC's SharePoint intranet.)
4. The CCRC's internal guidance on informants/Covert Human Intelligence
Sources/informant-related material (again, the CCRC seems to previously have had a
Casework Guidance Note on informant-related material);
5. The CCRC's internal guidance on intercepted communications (which, again, the
CCRC seems to have at one point had a Casework Guidance Note on).
2. CCRC provided information in response to requests 3-5 (with minimal
redactions identifying applicants to CCRC) and refused to provide information
in response to 1-2 relying on s40(2) FOIA (personal data). It upheld that
position on internal review setting out in detail its reasoning:-
The review is in relation to the decision not to disclose the internal list of criticised
experts. This list is compiled to assist case-working staff to keep track of experts who
may currently be under investigation, or have been discredited or criticised in some
way that may impact upon a case under review. It is a working list subject to constant
change and contains details and opinions that directly constitute personal data, and
therefore requires consideration under section of (2) and (3) of the Freedom of
Information Act (FoIA).
It is noted that the requester acts in the capacity of a legal representative assisting
those who believe that they have been wrongfully convicted. However, the information
requested is not in relation to any specific investigation or proceedings, nor is it
necessary for providing legal advice to any existing client. The criterion that allows
disclosure under the exemption of the Data Protection Act 2018 is therefore not met in
this instance and does not allow for blanket disclosure. Being in a position to
potentially provide legal assistance does not automatically allow unrestricted access to
this information. It is the CCRC‘s view that it cannot be argued that there is a valid
legitimate interest in the absence of a case that requires the specific disclosure of an
identified individual’s personal data. To provide the data in the circumstances
requested would be in breach of principles 2 and 3 of the Act, purpose limitation (only
for specific and predefined purpose) and data minimisation (the maximum amount of
data essential for defined purpose). Any information provided but also risk quickly
becoming obsolete and unreliable unless constantly updated. It could not, therefore, be
used by you for the purpose that you describe as this would also breach principle 4:
Accuracy
3. The Appellant complained to the Information Commissioner (IC) who
investigated. The CCRC in its submissions to the Commissioner suggested
that the Appellant (if it chose) was able to produce a list of this type itself since
much of it was gathered from public sources. In her decision notice she
identified three provisions upon which CCRC could rely to withhold the
information:-
• section 40 FOIA. She concluded that the information in question was
clearly the personal data of those named in the database. Moreover, it
was often highly sensitive data, and was in some cases criminal offence
data. There was no legal basis for disclosing either type of data under
Articles 6 and 10 GDPR, respectively (DN, §§10-60);
• section 44 FOIA. Section 23 Criminal Appeal Act 1995 (CAA) prevented
the disclosure of the data in question, since none of the exceptions in
section 24 applied (DN, §§61-68);
• section 14 FOIA. The CCRC had real concerns about the volume of
information sought and the difficulties that it would have in isolating
potentially exempt information from the rest of the material, since the
two were intertwined. The time taken to review and isolate disclosable
data would be such that the request would impose a grossly oppressive
burden on the CCRC (DN, §§79-83).
4. The Appellant challenged the use of all these provisions. With respect to
section 44 it argued that the CCRC was not acting in the exercise of its
functions when it drew up the list of criticised or discredited individuals:-
43. The Appellant does not accept that the requested information – that is, the list of
criticised experts and the equivalent lists for criticised law enforcement personnel and
units, lawyers and judges – can be accurately described as having been obtained by the
CCRC in the exercise of any of its statutory functions. Instead, the information is more
accurately characterised as information created by the CCRC to assist with the exercise
of its statutory functions of reviewing and referring cases. This is not the same as it
having been obtained in the actual exercise of its functions.
5. It also argued that an exception to the prohibition on disclosure was provided
by s24(1)(a) of the CAA.
Consideration
6. FOIA while providing a general right of access to information held by public
bodies also exempts much information from that right. Including where there
is a statutory prohibition on disclosure:-
44 Prohibitions on disclosure.
(1) Information is exempt information if its disclosure (otherwise than under
this Act) by the public authority holding it—
(a) is prohibited by or under any enactment,
(b) is incompatible with any retained EU obligation, or
(c) would constitute or be punishable as a contempt of court.
7. CAA makes detailed provisions on the communication of information by
CCRC under the heading Disclosure of Information. These are (so far as is
relevant):-
“23 Offence of disclosure.
(1) A person who is or has been a member or employee of the Commission
shall not disclose any information obtained by the Commission in the exercise
of any of their functions unless the disclosure of the information is excepted
from this section by section 24.
…
24 Exceptions from obligations of non-disclosure.
(1) The disclosure of information, or the authorisation of the disclosure of
information, is excepted from section 23 by this section if the information is
disclosed, or is authorised to be disclosed—
(a) for the purposes of any criminal, disciplinary or civil proceedings,
(b) in order to assist in dealing with an application made to the Secretary of
State or the Department of Justice in Northern Ireland for compensation for a
miscarriage of justice,
(c) by a person who is a member or an employee of the Commission either to
another person who is a member or an employee of the Commission or to an
investigating officer,
(d) by an investigating officer to a member or an employee of the Commission,
(e) in any statement or report required by this Act,
(f) in or in connection with the exercise of any function under this Act, or
(g) in any circumstances in which the disclosure of information is permitted by
an order made by the Secretary of State.
(2) The disclosure of information is also excepted from section 23 by this
section if the information is disclosed by an employee of the Commission, or
an investigating officer, who is authorised to disclose the information by a
member of the Commission.
(3) The disclosure of information, or the authorisation of the disclosure of
information, is also excepted from section 23 by this section if the information
is disclosed, or is authorised to be disclosed, for the purposes of—
(a) the investigation of an offence, or
(b) deciding whether to prosecute a person for an offence, unless the disclosure
is or would be prevented by an obligation of secrecy or other limitation on
disclosure (including any such obligation or limitation imposed by or by virtue
of an enactment) arising otherwise than under that section.
(4) Where the disclosure of information is excepted from section 23 by
subsection (1) or (2), the disclosure of the information is not prevented by any
obligation of secrecy or other limitation on disclosure (including any such
obligation or limitation imposed by or by virtue of an enactment) arising
otherwise than under that section.
(5) The power to make an order under subsection (1)(g) is exercisable by
statutory instrument which shall be subject to annulment in pursuance of a
resolution of either House of Parliament.
….”
8. The prohibition in s23 is broadly drafted prohibiting disclosure of “any
information obtained by the Commission in the exercise of any of their functions” S24
provides exhaustive lists of circumstances in which disclosure is possible:-
• s24(1) provides a list of seven circumstances in which information may
be disclosed, These are highly specific and include two explicit
exemptions from the duty not to disclose to enable the staff and
members of the Commission to discuss cases.
• s24(2) allows members of the Commission to authorise disclosure, and
• s24(3) allows disclosure for the purposes of investigating and
prosecuting offences
9. The functions of CCRC are set out in the CAA to enable it to consider and refer
cases to the Court of Appeal and at s21 a general power is given to the CCRC:-
21 Other powers.
Sections 17 to 20 are without prejudice to the taking by the Commission of any steps
which they consider appropriate for assisting them in the exercise of any of their
functions including, in particular—
(a) undertaking, or arranging for others to undertake, inquiries, and
(b)obtaining, or arranging for others to obtain, statements, opinions and reports.
10. It is clear that in gathering this information they were taking necessary steps
preparatory to carrying out inquiries and obtaining reports relevant to such
potential inquiries. The Appellant argues that the information was not
obtained in the exercise of their functions, but rather was gathered to assist in
the exercise of those functions and should therefore fall out with the s23 (and
consequently the s44 FOIA) prohibition.
11. The Information Commissioner relied on the decision in Hazell, which
concerned the interpretation of s111 of the Local Government Act 1972:-
111Subsidiary powers of local authorities.
(1)Without prejudice to any powers exercisable apart from this section but subject to
the provisions of this Act and any other enactment passed before or after this Act, a
local authority shall have power to do any thing (whether or not involving the
expenditure, borrowing or lending of money or the acquisition or disposal of any
property or rights) which is calculated to facilitate, or is conducive or incidental to, the
discharge of any of their functions.
12. The Information Commissioner argued that in Hazell a function was anything
that a local authority had power to do and the term function should be
understood as broadly in the context of the CCRC, under section 23 CAA, the
compiling of the lists was intimately connected with its core function of
screening cases for potential grounds for appeal.
13. The CAA sets out various specific powers of the CCRC to do its work in
sections 17-22 under the heading “supplementary powers”. These include the
power to obtain documents (s17-18), and the work of investigating officers
(s19-20). These specialist powers are necessary for this public body as are the
more general powers in s21. The tribunal is satisfied that all these powers are
integral to its work, they are functions of the CCRC. S24 CAA provides an
exhaustive code of the circumstances in which it is lawful for the CAA to
disclose information. Disclosure of the information within the lists is therefore
prohibited by s23.
14. The Appellant’s argument on section 24(1)(a) lacks substance. The CCRC
would not be disclosing the data for the purposes of legal proceedings but in
response to a request under FOIA. CCRC does not have an obligation under
FOIA to disclose this information. It has decided not to do so.
15. Since the statutory prohibition applies, there was no need to consider the
application of s40 and s14.
16. The Information Commissioner’s decision is correct in law and the appeal fails.
Signed Hughes
Judge of the First-tier Tribunal
Date: 2 June 2021
Promulgated: 4 June 2021