Noel Titheradge v The Information Commissioner

This appeal concerns the following request made on 6 July 2021 by Mr Titheradge:

On 29 July 2021 Merseyside Police responded to the request and withheld the information relying on section 40(2) and sections 30(1)(a) and (2)(a)(i) and (iii). The Merseyside Police upheld its position on internal review on 27 August 2021.

Mr. Titheradge referred the matter to the Information Commissioner on 17 September 2021.

The Commissioner decided that Merseyside Police should have directed Mr. Titheradge to the footage that had been released to the media by Merseyside Police and in failing to do so was in breach of section 21.

In relation to the remaining footage, the Commissioner concluded that footage used in court included criminal offence data and that none off the conditions required for processing criminal offence data were satisfied. He concluded that there was no legal basis for disclosure and the footage was exempt under section 40(2).

In relation to the remaining footage, which related to the property and events which occurred after the incident, the Commissioner concluded that disclosure was not reasonably necessary for the purposes of the legitimate interest identified by Mr. Titheradge because it did not relate to turning off the BWV cameras. The Commissioner identified a general public interest in seeing how the force dealt with the aftermath of the incident, but decided that disclosure was not reasonably necessary. Merseyside Police was accordingly entitled to withhold all of the information under section 40(2) FOIA.

The Commissioner did not consider the other exemptions cited.

The grounds of appeal are:

In relation to the criminal offence data within the footage, the Commissioner accepts that the conditions in paragraph 13(1)(a), (b) and (d) would be met. The Commissioner does not accept that disclosure would be ‘necessary for reasons of substantial public interest’ or that any reasonable controller (and/or Merseyside Police) would believe that publication of the footage would be in the public interest. The Commissioner submits that neither of the conditions in paragraph 13(1)(a) or (c) are met.

The Commissioner accepts that there is some limited legitimate interest in the disclosure of the footage which does not amount to criminal offence data on the grounds that the incident was of some significance and thus observing how Merseyside Police dealt with its aftermath may be of some general interest to the public.

The Commissioner does not consider, subject to viewing the footage, that the disclosure of the footage is likely to serve the distinct aim of scrutinising police use of BWV.

The Commissioner accepts that disclosure would be reasonably necessary to serve the limited interest in relation to observing how Merseyside Police dealt with the aftermath of the relevant incident. To the extent that the footage relates to the incident itself or the relevant legitimate interest is the public scrutiny of the police use of BWV, the Commissioner does not consider that disclosure of this footage will be reasonably necessary to serve those interests.

The Commissioner further submits that disclosure would not be fair and that the interests and fundamental rights of those featured in the footage outweigh the legitimate interests pursued by the appellant.

We read an open and a closed bundle and viewed closed BWV footage.

It is necessary to withhold the above closed information from Mr. Titheradge because it refers to the content of the withheld information, and to do otherwise would defeat the purpose of the proceedings. An extract from a document in the closed bundle was moved to the open bundle during the proceedings, as referred to in the gist below.

We held a short closed session in which we heard closed submissions from Mr. Davidson. The following is a gist of the closed session. A copy was provided to Mr Titheradge during the hearing.

“Mr Davidson made four points about the personal and private information which is caught in the footage, and the reasonable expectations of the various individuals involved in relation to that information.

In response to a question from the Tribunal, Mr Davidson clarified the way in which, and extent to which, individuals may be identifiable from the footage in conjunction with material in the public domain.

Ms Cosgrave queried whether part of the CLOSED bundle which appears to relate to OPEN material (namely, a statement on the Merseyside Police website) ought not to be shared with the Appellant.  Mr Davidson agreed to take instructions.”

The relevant parts of s 40 of FOIA provide:

Personal data is defined in s 3 of the Data Protection Act 2018 (DPA):

This is in line with the definitions in the UK General Data Protection Regulation (UK GDPR). The tribunal takes the view that the recitals to the GDPR 2016/679 are a useful guide to the interpretation of the UK GDPR. Recital 26 to the GDPR is relevant, because it refers to identifiability and to the means to be taken into account:

The definition of "personal data" consists of two limbs:

Whether the data in question "relate to" a living individual and

Whether the individual is identified or identifiable, directly or indirectly, from those data.

The tribunal is assisted in identifying ‘personal data’ by the cases of Ittadieh v Cheyne Gardens Ltd [2017] EWCA Civ 121; Durant v FSA [2003] EWCA Civ 1746 and Edem v Information Commissioner [2014] EWCA Civ 92. Although these relate to the previous iteration of the DPA, we conclude the following principles are still of assistance.

In Durant, Auld LJ, giving the leading judgment said at [28]:

In Edem, Moses LJ held that it was not necessary to apply the notions of biographical significance where the information was plainly concerned with or obviously about the individual, approving the following statement in the Information Commissioner's Guidance:

The High Court in R (Kelway) v The Upper Tribunal (Administrative Appeals Chamber) & Northumbria Police [2013] EWHC 2575 held, whilst acknowledging the Durant test, that a Court should also consider:

The data protection principles are set out Article 5(1) of the UK GDPR. Article 5(1)(a) UK GDPR provides: that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject. Article 6(1) UK 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.

The only potentially relevant basis here is article 6(1)(f):

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:

Lady Hale said the following in South Lanarkshire Council v Scottish Information Commissioner [2013] 1 WLR 2421 about article 6(f)’s slightly differently worded predecessor:

Article 10 UK GDPR provides:

Section 11(2) DPA provides:

Section 10 DPA provides:

Schedule 1, Part 3, Paragraph 36 DPA provides:

Schedule 1, Part 2, Paragraph 13 DPA provides:

S 40(2) is an absolute exemption and therefore the separate public interest balancing test under FOIA does not apply.

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 he 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.

The issues for the tribunal to determine are:

What is the scope of the request?

Does the information relate to an identified or identifiable living individual?

Is any or all of the requested information criminal offence data in that it relates to criminal offences or alleged criminal offences by the data subject(s)?

In relation to any criminal offence data:

The request asks for ‘all body worn video recorded by an officer on June 19, 2019 at Mark Bamber’s home on Cherry Road, Ainsdale. The incident is detailed here [link provided]’.

Although that link no longer functions, it was established in the course of the hearing that the article is still available online at:

The article makes clear that the ‘incident’ referred to in the request is the assault on Mr. Bamber by Police Constable McIntyre and the switching off of the BWV cameras by the other officers.

We do not accept that the scope of the request is limited to that indicated in paragraph 24 of the witness statement of the appellant i.e. “the footage of the moment of deactivation with contextual surrounding BWV footage relevant to that deactivation”. It is not possible to read the request in that way. It is not possible to remedy any lack of clarity in the request by means of the witness statement in subsequent tribunal proceedings, as submitted at paragraph 17 of the appellant’s skeleton argument. Although the tribunal takes a fairly liberal approach to interpretation and focusses on the substance of what is being requested, the scope of a request is construed objectively in the light of the surrounding circumstances at the time.

Objectively construed and looked at in the light of the article, we find that this was a widely drawn request for all the BWV footage taken in relation to the incident featured in the article. We accept that this includes all the footage in the closed bundle.

Although that is the scope of the request made at the time, we take account of Mr. Titheradge’s indication that he is now seeking only the footage of the moment of deactivation with contextual surrounding BWV footage relevant to that deactivation.

A section of the BWV footage has already been released into the public domain. That information has already been provided to Mr. Titheradge.

The question for us to determine is whether the withheld information is the personal data of an identifiable living individual or individuals.

Having viewed the BWV footage it includes the following individuals:

The police officers and Mr. Bamber are identifiable and remain identifiable even when their faces are obscured. This is because their names and role in the incident are, and were at the time of the request, widely available in the public domain.

Mr. Bamber’s partner is also identifiable by at least a section of the public due to her association with Mr. Bamber and/or the property.

Where the faces of paramedics are visible, we find that they would be identifiable to at least a section of the public using contextual data in the video, i.e. their faces, their job, their employer and area.

The BWV also contains personal data of Mr. Bamber and his partner in the form of detailed footage of the inside of their house.

We find that the data in the video relates to those individuals. It is biographical in a significant sense to all those individuals, in that it goes beyond the recording of the individuals’ involvement in a matter that has no personal connotations for them, particularly because the data records their involvement in the incident, its build up or aftermath.

We find that the footage of the immediate build up to the assault, the assault itself and the immediate aftermath, including any footage of BWV cameras being switched off is the personal data of the four police constables that were convicted of the offences of assault and perverting the course of justice. We find that this personal data relates to the commission or alleged commission of criminal offences by those four constables. It shows those offences being committed and was relied on as evidence in court in the proceedings in which the police officers were convicted.

It is unclear exactly how much of the BWV in scope of the request was played in court. On the basis of an email from Merseyside Police at page A9CB of the closed bundle, it appears that all the BWV footage provided to the tribunal may have been shown in court, although this is not consistent with what is said in the response to the request which states that most of the BWV was not considered necessary to be played to the court. In any event, in our view, only the section of footage described in the previous paragraph consists of personal data of the police constables that relates to the commission or alleged commission of a criminal offence or offences by the data subjects.

On this basis we find that the section of the BWV described above is criminal offence data within the meaning of Article 10 UK GDPR.

Although the Commissioner argues that the requirement of substantial public interest is not met, this criteria is disapplied where the data is criminal offence data, as a result of paragraph 36 of Schedule 1 DPA.

The Commissioner agrees, and we accept, that disclosure would be for the purposes of journalism and would be carried out in connection with the alleged or established commission of an unlawful act by a person and with a view to the publication of the personal data by a person.

The final condition is that the controller reasonably believes that publication of the personal data would be in the public interest. The controller in this case is Merseyside Police. There are two elements to this condition: First, Merseyside Police must subjectively hold the relevant belief; Second, that belief must be objectively reasonable (see NT1 & NT2 v Google LLC [208] EWHC 799 (QB) at paragraph 102).

There is no evidence before us on which we could properly make a finding that Merseyside Police believed that publication of this personal data, beyond that which they have already place in the public domain, would be in the public interest. There is positive evidence before us in the response to the request and in the internal review that Merseyside Police believed that disclosure of further footage of the incident, beyond that which they have already released into the public domain, would not be in the public interest.

Ms Wisson, on behalf of the appellant, accepted that the appellant could not submit that Merseyside Police subjectively believed that disclosure would be in the public interest. However she argued that where the provision was being considered under FOIA the burden was on the appellant to show that the condition in paragraph 13 was satisfied. In those circumstances it was appropriate for the tribunal to ask whether a reasonable controller would hold a reasonable belief that it would be in the public interest to disclose the information.

The tribunal does not accept that it is possible to read the clear words of paragraph 13 in that way. Nor is it appropriate for the same paragraph to be interpreted differently depending on whether or not the claim is brought under FOIA. This is supported by the fact that section 40 FOIA requires the tribunal to assess UK GDPR compliance ‘otherwise than under this Act’. The tribunal is required to put FOIA from its mind and consider disclosure under the UK GDPR regime.

For those reasons we find that the portion of BWV containing the footage of the immediate build up to the assault, the assault itself and the immediate aftermath, including the footage of BWV cameras being switched off is exempt under section 40(2).

Although it appears unsatisfactory that a public body has the right to determine for itself, by reference to its own reasonable belief, that the publication of personal data would or would not be in the public interest, we find that this arises from the particular treatment of criminal offence data in the statutory data protection regime. Further, a body deliberately covering up wrongdoing is not left immune to challenge. The data protection regime would not prevent or hinder the investigative functions of external supervisory bodies, giving other avenues for people who wish to challenge a body’s refusal to disclose.

Although this information falls within the scope of the request, Mr. Titheradge has made clear that he is not interested in this part of the video footage. He is now seeking only the footage of the moment of deactivation with contextual surrounding BWV footage relevant to that deactivation. None of the remaining footage could be classed as contextual footage relevant to the deactivation of the BWV cameras.

As Mr. Titheradge no longer wants this footage, it is not necessary for us to reach any conclusions on this section of the footage, but we have indicated in summary what our conclusions would have been for completeness.

We would have accepted that Mr. Titheradge was pursuing a legitimate interest as follows. He states that footage revealing the BWV being switched off was not released to the public and as such its disclosure under freedom of information legislation is the only route to provide scrutiny of how Merseyside Police handled that misconduct. He asserts that the video of the two officers turning off their cameras will reveal the extent to which the misconduct was orchestrated and could potentially provide a valuable insight into whether this behaviour appears spontaneous in nature or well-rehearsed and indicative of a ‘cover-up’.

Mr. Titheradge is interested in the multiple perspectives recorded by different officers and the context of any misconduct prior to and (when available) following the BWV camera(s) being switched off. He states that the BWV footage is being sought to assist his investigation into BWV misconduct and, ultimately, with a view to publication. He submits that the footage is important to his investigation and is essential in providing the public with an insight into officer misconduct, and to exploring the extent to which the issue (turning off BWV cameras) is systemic across policing in England and Wales.

Mr Titheradge submits that each “incident” involves BWV deactivation, in which the public have an interest in understanding the circumstances of and the nature of the decision to misuse police powers by turning off BWV. In addition, he submits that the public have a separate interest in knowing to what extent each “incident” also involved other misuses of police power either preceding and/or following the BWV deactivation – e.g. verbal abuse of a suspect, physical assault of a suspect, destruction of the suspect’s property and/or inappropriate questioning of a suspect.

The remaining footage contains nothing that might conceivably serve these legitimate interests. For those reasons we would have concluded that disclosure of the remaining footage was not reasonably necessary for the purposes of those interests.

Given the nature of the incident, we agree with the Commissioner that there is some general legitimate interest in transparency in relation to how the police acted after this incident and its immediate aftermath. As none of this footage, or any other information on how this was handled by the police is in the public domain, we would have accepted that disclosure would be reasonably necessary for the purposes of that legitimate interest.

We would then have considered if the above interests were overridden by the interests or fundamental rights and freedoms of the data subjects.

The remaining footage contains, as well as the personal data of the police constables, the personal information of paramedics, Mr. Bamber and his partner, including detailed footage of the inside of their home. Mr. Bamber is present throughout. In relation to Mr. Bamber and his partner, we have found that they remain identifiable even if where their faces are not visible.

We accept that the paramedics are acting in a professional rather than a public capacity, and that they are in a public facing role. However, given that they had not committed any wrongdoing, we find that disclosure would not have been within their reasonable expectations. We accept for the reasons given in closed that they are likely to be caused distress by disclosure.

In relation to Mr. Bamber we accept Mr. Davidson’s submissions that an individual engaged with the coercive power of the state is particularly vulnerable, and has a particular expectation that that interaction with the state will not be disclosed to the world at large. The footage contains intimate details of Mr. Bamber’s home and shows his injuries. Even after the immediate aftermath of the incident the footage of Mr. Bamber, if released to the world, would be likely to cause him distress.

Taking all the above into account, we would have concluded in any event that the general legitimate interest in transparency was overridden by the interests or fundamental rights and freedoms of the individuals other than police officers present in the BWV.

As Mr. Bamber is present throughout this part of the recording and there is no way to render Mr. Bamber anonymous given the material already in the public domain:

For the above reasons we conclude that Merseyside Police were entitled under section 40(2) to withhold the section of BWV, in so far as it is not already in the public domain, which includes the immediate build up to the assault, the assault itself and the immediate aftermath, including any footage of BWV cameras being switched off, because it is criminal offence data and there is no evidence before us on which we could base a finding that Merseyside Police believed that disclosure of that part of the recording was in the public interest.

Although the remainder of the video is within the scope of the request it is no longer sought by Mr. Titheradge. For completeness we have set out what our conclusions would have been on this part of the video. We would have concluded that there was a legitimate interest in disclosure and that disclosure was reasonably necessary, but that the general legitimate interest in transparency was overridden by the interests or fundamental rights and freedoms of the individuals other than police officers present in the BWV.

We do not need to go on to consider any other exemptions. The appeal is dismissed.