Jon Austin v Information Commissioner & Anor

The parties and the Tribunal agreed that this matter was suitable for determination on the papers in accordance with rule 32 Chamber’s Procedure Rules.

The Tribunal considered an agreed open bundle of evidence of 417 pages and closed bundle.

The Appellant made the following information request to the Commissioner of the Metropolitan Police (CMP) on 8 April 2021:

“Please see this misconduct outcome - https://www.met.police.uk/foi-ai/metropolitan-police/misconductoutcomes/ 2021/march/PC-[name redacted]/ while hearings are being held in private during the coronavirus pandemic (with press unable to attend) such as this one, the MPS opted to publish summaries going into the reasoning behind the decisions. However none had been published for this case and I am told it is not going to be.

1.Please provide the summary under the FOIA. If it is not provided then at least outline which of the allegations the officer faced were found proven as misconduct and which were not with a brief explanation as to why.”

On 18 June 2021 the MPS responded and refused the request by virtue of section 40(2) FOIA (personal information). However, the CPM supplied the Appellant with a DOI Notice of Outcome and said that this was provided to him in good faith. On 12 August 2021 the Appellant asked the CPM for an internal review. On 24 August 2021 the CPM provided the Appellant with its internal review response. This said that it should have stated within the refusal notice that the Appellant was being provided with a partial disclosure.

The Appellant contacted the Information Commissioner on 24 August 2021 to complain about the way his request for information had been handled.

This is a case where some more background is required to understand the nature of the request and the refusal.

The Appellant’s request was in relation to information about the outcome of misconduct proceedings which were conducted under the Police (Conduct) Regulations 2012 (the 2012 Regs). The misconduct hearing in this case, which took place in February 2021, was chaired by a legally qualified chair (LQC), who exercised his discretion under reg 31 of the 2012 Regs to hold the hearing in private. The LQC drafted a Notice of Outcome under reg 36 of the 2012 Regs, which recorded the decisions of the hearing, notes on legal arguments, and findings of fact. A summary, which set out the decisions of the hearing, and named the officer, was published for 28 days on the MPS’s website in accordance with its policy. We understand that the LQC decided that only this summary and not the full Notice of Outcome would appear on the website.

The MPS also provided the summary which had previously appeared on the website, under cover of a letter to the Appellant on 14 June 2022 (this time the name of the officer was not included, but of course the Appellant had this information already). That letter is exhibited to this decision.

In summary the document disclosed sets out the ‘Decisions of the Hearing’ in a tabular form in relation to findings about allegations against an unnamed officer.

First of all it is said that there is a ‘factual matrix’ which is recorded to be ‘partially proven’ but no further details of the factual matrix or the decision-making process is provided.

There are then a list of allegations with redactions of names and places which are listed as ‘proven’ or ‘not proven’. These are as follows:-

Items (c), (e), (f), (g) and (h) were all found to be ‘Proven’ and a final written warning issued to the officer. The other items were found to be ‘Not Proven’.

Those matters said to be ‘proven’ appear to describe a situation where a police officer, in Hemel Hempstead, attempted to hide a backpack, lied about this to a police officer, failed to stop when asked, then absconded and failed to co-operate with a police investigation. Nevertheless the decisions end by saying it was decided that it was ‘Not Proven’ that ‘As a result of that stated herein, if proven, your conduct singularly or in its totality amounts to gross misconduct’.

As noted above, as we understand it, all of this information would have been published on the MPS website for 28 days after the decisions had been made, and that the officer to whom the decisions were made would have been named. The Appellant knows the name of the officer by way of that publication. We can see this from documents in the bundle: the email of 23 March 2021 at [164] for example, shortly before the request was made.

The Appellant says that the MPS opted to publish summaries going into the reasoning behind decisions such as this during the pandemic. He notes that none has been published for this case, and that is what his request relates to. The approach of the MPS is set out in an email dated 18 March 2021 [165] to the effect that:-

The MPS has filed a witness statement from Scott Didham who is an Inspector the Directorate of Professional Standards’ Misconduct Hearings Unit (MHU). Inspector Didham says that the views of the LQC were obtained in relation to further disclosure. That appears to have happened in March 2021, before the current request was made (see the email at [164]). Inspector Didham reports:-

This was further explained to the Appellant in a letter from a Ms Taylor on 24 August 2021 which states:-

As referred to above, the Police (Conduct) Regulations 2012 as they were amended at the time of the decisions made in this case (the 2012 Regulations), are relevant.

The outcome notice was in respect of a misconduct hearing governed by the 2012 Regulations. By reg 31 of the 2012 Regulations, misconduct hearings are by default in public, but the LQC has the power to exclude any (or all) people from the hearing under reg 31(6). This can, in effect, mean that hearings are conducted in private (as happened in this case).

By reg 36 of the 2012 Regulations:-

In its response to this appeal the MPS notes that:-

It is uncontroversial for us to say that within the withheld information is a sentence that states that the panel ordered publication pursuant to regulation 36, but nothing else is recorded in relation to that issue.

Thus, reg 36 gives the LQC two powers relevant to our consideration. The first is to exclude people from the hearing (which may have the effect that the hearing is in private). The second is to require the publication of a notice and to specify the matters that should be covered in the notice from the list in reg 36(9). Thus the default position is that the hearing should be in public. Interestingly, other than stating the matters which should be included in the notice, the LQC does not seem to have further powers to specify the format of the notice, although of course no doubt the MPS will follow any guidance provided by the LQC at the hearing.

As explained above, as we understand it, in this case the LQC directed that a short summary only be published even though this would cover all the matters in reg 36(9).

The Appellant is entitled (1) by s1(1)(a) FOIA to be informed in writing by the MPS whether it holds the requested information; and (2) by s.1(1)(b) to have the requested information communicated to him, subject to the exemptions in Part 2 of FOIA.

In particular, s 2(2) and (3) FOIA materially provide:-

The relevant FOIA exemption is s40(2) FOIA in relation to the first condition set out in s.40(3A) FOIA:-

Article 10 of the UK GDPR defines criminal offence data as being personal data relating to criminal convictions and offences. Under section 11(2) of the DPA personal data relating to criminal convictions and offences includes personal data relating to:-

The Commissioner’s Guidance says the following about what constitutes ‘criminal offence data:-

The restrictions on disclosing such information are rigorous. Both the MPS and the Commissioner agree, and as supported by the ICO Guidance on section 40 (at p17) that in the context of disclosure under FOIA, the only possible conditions that could be met are those in paragraphs 29 and 32 of Schedule 1:-

However, the Appellant has relied on paragraph 13 of Schedule 1, which reads:-

The decision notice is dated 19 August 2022. Having considered the withheld information, the Commissioner said that he was satisfied that the information both relates to and identifies the individual concerned and therefore the information therefore falls within the definition of ‘personal data’ in section 3(2) DPA. The Commissioner records that:-

The Commissioner then considered whether the information amounted to criminal offence data. The Commissioner says:-

The Commissioner goes on to consider the position if the withheld information is not criminal offence data:-

The Appellant’s appeal is dated 16 September 2022. He notes that outcome summaries have regularly been published in misconduct cases, especially during the pandemic when hearings took place in private. He notes that the Commissioner does not appear to have recognised that the officer’s name has been disclosed, with brief reference to the misconduct allegations and is in the public domain.

The Appellant raises public interest matters around:-

The Appellant points out that the default position for misconduct proceedings is that they should be in public. The Appellant states that the Commissioner placed too much emphasis on the LQC’s view. The Appellant suggests that the Notice of Outcome document can be disclosed with appropriate redactions of personal information ‘such as medical details etc’.

The MPS response points out that the Appellant has not contested that some of the withheld information is criminal offence data (although of course the Appellant has not seen the information). The MPS says that the information ‘contains substantial further personal data about alleged criminal offences’ but does not explain further.

The MPS accepts that the Appellant is pursuing a legitimate interest in the transparency of police misconduct outcomes. The MPS disagrees with the Commissioner that disclosure of the Notice of Outcome ‘is, to some degree, necessary to meet that legitimate interest’ in circumstances where the Alternative Requested Information has been disclosed. The test is whether the disclosure is reasonably necessary for those purposes. Although the hearing was held in private by virtue of a direction of the LQC, the Summary was published, and subsequently further information disclosed. The MPS says that met any legitimate interest in the transparency of police misconduct outcomes.

If that is wrong then the MPS says that ‘the officer would have a reasonable expectation that material above and beyond the Summary directed by the LQC would not be published into the public domain, and that the MPS as their (quasi-)employer would not disclose information about them into the public domain in perpetuity. That expectation is reinforced by the LQC’s own view that it would not be appropriate to disclose additional information’.

The MPS argues that ‘While the officer concerned may not have had a reasonable expectation of privacy in the immediate period after the misconduct hearing, when there was requirement to publish the Summary, they would not reasonably have expected that disclosure to be indefinite and enduring to the world at large’.

In relation to paragraph 13 of Schedule 1 of the DPA which authorises the processing of criminal offence data for journalistic purposes (relied upon by the Appellant) by the MPS. The MPS argue that this is not relevant for ‘motive-blind’ disclosure to the ‘world at large’ for the purposes of FOIA, and in any event, paragraph 13(1)(e) of Schedule 1 of the DPA refers to the reasonable belief of the data controller that publication would be in the public interest. That is part of the condition within paragraph 13(1) that must be met for the processing to be lawful. The MPS points out that the data controller in this case is the MPS and that the MPS does not believe that publication would be in the public interest. As such, the condition in paragraph 13(1) is not met.

The Commissioner’s response repeats in general the contents of the decision notice. Although the Commissioner repeats that the withheld information is said to contain criminal offence data but this is not explained. The Commissioner has chosen not to address at all the Appellant’s point that the decision notice does not appear to recognise that the officer’s name is already in the public domain. The Commissioner confirms that it was not decided necessary to view the Notice of Outcome before reaching conclusions in the decision notice.

In this case we start from the position that the Appellant knows the identity of the officer concerned because his name, together with the summary of information set out above (and in the appendix) was published on the MPS website for 28 days. The Appellant has seen this and is interested in obtaining more information about the case and the officer concerned (who he has referred to by name in correspondence). We bear in mind, therefore, that the Appellant (or anybody else) could publish and publicise the name of the officer and the summary outcome of the misconduct proceedings. Indeed, a simple Google search reveals that that has happened. Although the Commissioner does not explicitly refer to the Appellant having been named, he appears to accept that this is the case in para 34 of the decision notice where it is stated that ‘it is noted that details regarding some of the officers concerned are still in the public domain by way of the media’.

An important issue in this case is whether some or all of the personal information requested amounts to criminal offence data, as the restrictions on the disclosure of this information are onerous. However, this issue is not explored fully in the decision notice nor in the submissions from the parties. We remind ourselves that the decision notice says:-

We note a number of matters here:-

We remind ourselves that ICO guidance states that criminal offence data involves ‘offenders or suspected offenders in the context of criminal activity, allegations, investigations and proceedings’. As the misconduct panel was only concerned with misconduct matters it does not seem to us that this case comes within that criminal ‘context’ as described by the ICO, and the special protection given to criminal offence data does not apply in relation to this request.

For completeness, if we are wrong about this, for the reasons set out by the Commissioner and the MPS, paragraph 13 of Sch 1 to the DPA could not be applied to make the information disclosable to the Appellant.

Having concluded that the information is not criminal offence data, the Tribunal needs to consider the appeal on the basis that the information sought still consists of personal information. Applying the legal framework set out above, the Tribunal agrees with the Commissioner (see paragraph 37 of the decision notice) that the Appellant is pursuing a legitimate interest, and that disclosure of information relating to the allegations of an officer and misconduct outcomes, is necessary to meet that legitimate interest. The Appellant is seeking the reasoning behind the decisions made and not just the findings themselves, in the context of what he says are ongoing concerns about police misconduct. On that basis we disagree with the MPS argument that the summary is sufficient to meet the Appellant’s legitimate interests.

Having reached that conclusion, the question for the Tribunal to consider is whether the legitimate interests stated outweigh the fundamental rights and interests of the officer concerned.

On this issue, rather oddly (paragraph 38) the Commissioner couches his views in terms of considering that ‘the MPS has a strong and reasonable expectation that in its role as a data controller, it will not disclose information about the named police officer and it will respect their confidentiality’. We note that the reasonable expectations of the MPS are not at issue at this stage of the process. However, the Commissioner does go on to describe the MPS concern that the officer ‘would have no expectation of the information being placed again in the public domain’ and that this would be ‘an intrusion of privacy’ and could ‘potentially cause unnecessary and unjustified distress to the officer concerned.’ Without saying more, the Commissioner concludes ‘there is insufficient legitimate interest to outweigh the fundamental rights and freedoms of the MPS’. Other than the inclusion of the word ‘again’ there is no consideration as to the significance of the data subject’s identity and the summary of the information already being in the public domain.

Before the Tribunal considers this issue for itself, it is necessary to consider the relevance of the initial direction we are told (there is no documentary evidence) was made by the LQC to the effect that the Notice of Outcome should not be published and his later view prior to the formal request for information (again only described in an MPS statement) that disclosure of further detail of this case should not be disclosed at this time on the basis that it may adversely impact on the private life of the officer concerned and/or others in this case.

Inspector Didham’s statement describes the approach of the MPS in relation to the views put forward by the LQC as follows:-

In our view, Inspector Didham misdescribes the LQC’s powers. As described above the LQC has the power to exclude people from the misconduct hearing, and also to require certain matters to be published in relation to the misconduct proceedings.

As already said, if the LQC in fact expresses views as to the way in which the matters in reg 36(9) of the 2012 regulations should be disclosed, then the MPS is clearly sensible to comply with those views.

However, it seems to us that, given the limited powers in reg 36, any views expressed by the LQC do not exclude the possibility of the Commissioner or this Tribunal ordering disclosure if that is what FOIA, properly applied, requires. Ultimately, it is for the Commissioner and now the Tribunal to decide whether the legitimate interests of the Appellant outweigh the fundamental rights and freedoms of the data subject. That appears to be the approach that the Commissioner has taken in the decision notice.

We note, for example, that from the reports we have of the LQC’s views, that although he has expressed a view about the reasons for non-disclosure, he does not appear to have considered the strength of the legitimate interest in favour of disclosure, which is a matter which the Commissioner and the Tribunal must consider.

In reaching its decision it seems to us that the Tribunal should certainly give considerable weight to the LQC’s views about the possible effect on the officer’s private life, as the LQC has had close involvement in the case. We also think that Inspector Didham is correct that the officer would have at least some reasonable expectation that nothing further would be disclosed once the LQC had made his views known (although he could have been advised that the Commissioner and/or the Tribunal might reach a different conclusion). Certainly the disclosure of the Notice of Outcome has the real potential of drawing more unwelcome exposure to the officer, and we will consider that in our decision making process.

Finally, we should also consider the LQC’s view that the Notice of Outcome cannot be easily redacted. We are surprised that the Commissioner decided to agree with this conclusion without viewing the relevant document.

However, we note, having seen the withheld information, that it could be effectively redacted by removing a handful of names of officers and one member of the public (possibly the names of two legal representatives) and one place name. The officer’s name could also be redacted although of course the Appellant and others know who he is, and we must assume that he could be identified as the subject of the Notice of Outcome.

Having taken all these matters into account we are just persuaded that the withheld material should be disclosed. We recognise the very strong legitimate interest in understanding how decisions are made as to whether officers have committed gross misconduct, especially in a case which appears as unusual as this one from the facts and matters disclosed in the Summary. In our view the Notice of Outcome provides important illumination as to how the conclusions have been reached in this case that the conduct examined did not justify dismissal. We do give weight to what the LQC thought should be disclosed and it does seem to us that the officer had a reasonable expectation that with the disclosure of the summary and his name, and the views expressed by the LQC, that would be the end of the matter. However, the further interference with the officer’s right to respect to private life, must be limited because his name and the outline of the case against him are already in the public domain. In addition, the LQC does not appear to have considered the countervailing strength of the legitimate interest in disclosure. We do have to take that into consideration and reach the view that it outweighs the officer’s fundamental rights and freedoms on the particular facts of this case.

As referred to above, for the purposes of s40(2) FOIA the names of all police officers and the member of the public referred to in the withheld material should be redacted, along with specific street name referred to twice on page 3.

On the basis of the above, the Tribunal allows the appeal. Thus, the Tribunal by way of a substituted decision notice, requires the MPS to take the following steps to ensure compliance with the legislation:-