Keith Vernon Gell v Information Commissioner & Anor

The proceedings were held via the Cloud Video Platform. All parties joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

The Tribunal considered an agreed open bundle of evidence comprising 207 pages, a closed bundle, written submissions from both parties, and additional documents.

On 11 November 2022, the Appellant wrote to City of London Police (COLP) and requested the following information:-

On 18 November 2022, COLP responded. In relation to the first part of the request it advised that reports: “...can be submitted via a business or by individuals who can report as a victim, as a witness or on behalf of a witness.” In relation to the second part, it advised that no information was held.

On 13 December 2022 the Appellant requested an internal review and noted that:-.

COLP provided an internal review on 23 January 2023 in which it revised its position. It explained:-

COLP advised that the information was exempt from disclosure under sections 31(1)(a) and (b) of FOIA. It provided details of a previous decision notice dealing with a similar request under case reference FS50879757 (Footnote: ¹), and also advised the Appellant how he could raise a complaint against Action Fraud if he wished to do so. The Appellant contacted the Commissioner on 11 April 2023 to complain about the way his request for information had been handled.

In the decision notice of 31 May 2023 the Commissioner noted that the Appellant had not specified which parts of his request he wished to complain about. The Commissioner therefore asked for further information from the Appellant in order to understand what he wanted. The Appellant responded to say that:-

The Commissioner then noted that he:-

The Commissioner concluded that:-

Given the reference to the previous decision notice we should note that Commission concluded therein that:-

The Commissioner, while acknowledging the importance of increasing transparency, noted that ‘a significant amount of information about AF is already in the public domain, including concerns about shortfalls, resources and system issues. Such publications indicate that some of the complainant’s concerns are already noted and the appropriate authorities are therefore currently aware’. The Commissioner recognised the importance of not providing fraudsters with useful information, the potential loss of intelligence to the police if people stopped reporting fraud because it did not appear likely to be investigated and that local forces received weekly summaries of cases in their area enabling them to investigate cases even if they were not actively disseminated for investigation. The Commissioner concluded that the balance of public interest lay in upholding the refusal.

Section 31(1)(a) and (b) FOIA provides in relevant part that:-

In summary, for a prejudice-based exemption, such as section 31(1)(a) and (b) FOIA, to be engaged there must be at least a likelihood that disclosure would cause prejudice to the interest that the exemption is designed to protect, which in this case is the prevention or detection of crime and/or the apprehension or prosecution of offenders.

The usual approach to a prejudice-based exemption is set out in Hogan and Oxford City Council v the Information Commissioner (EA/2005/0026 and 0030, 17 October 2006) , at paragraphs 28-34. This is also reflected in the Commissioner’s guidance on the issue. (Footnote: ²) The Hogan approach involves the following steps:

At step 1, the authority must show that the prejudice it is envisaging affects the particular interest that the exemption is designed to protect – in this case the prevention and detection of crime.

At step 2, in relation to the nature of the prejudice, there are two parts. As the Hogan Tribunal explained, this step involves two parts. Firstly, the prejudice envisaged must be real, actual or of substance, rather than trivial or insignificant. Secondly, there must be a “causal link” between the disclosure and the prejudice claimed. The authority must be able to show how the disclosure of the specific information requested would or would be likely to lead to the prejudice. Establishing the causal link means that the prejudice claimed is at least possible, that is, there are circumstances in which it could arise.

At step 3, in establishing whether prejudice would or would be likely to occur, it is necessary to consider:-

The first limb of the exemption relates to ‘would’ and the second to ‘would be likely’. ‘Would’ therefore means ‘more probable than not’; in other words, there is a more than 50% chance of the disclosure causing the prejudice, even though it is not absolutely certain that it would do so. ‘Would be likely’ refers to a lower level of probability than ‘would’, but one which is still significant, as explained by Munby J in R (on the application of Lord) v Secretary of State for the Home Office [2003] EWHC 2073 (Admin) who said:

“Likely connotes a degree of probability that there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there ‘may very well’ be prejudice to those interests, even if the risk falls short of being more probable than not.” (paragraph 100)

Section 31 FOIA is subject to the public interest test. This means that even if the exemption is engaged, consideration must be given as to whether the public interest in maintaining the exemption outweighs the public interest in disclosure .

The Appellant filed an appeal dated 27 June 2023. His grounds set out a civil dispute where he says that a fraudulently obtained deed of variation has been used against him, and caused him hardship but that COLP (and other police forces) have declined to record or investigate his allegations. He says that:-

The Appellant says that HMRC is unable to disclose the information to him. He says that he needs to ‘make a claim under the Human Rights Act, and the ECHR, to force COLP to record and investigate my complaint of fraud’. He argues that the COLP is wrong to argue that disclosure will affect the investigation of crime and that ‘the commonplace refusal of COLP to investigate fraud, and to give no explanation as to why, has emboldened fraudsters to steal in the knowledge that they will not be investigated’. He says that the Commissioner ‘was wrong to uphold the COLP’ s refusal on my FOIA request because they did not take into consideration the public interest’ and points out correctly that public interest factors need to be considered in each individual case. He says that in the previous decision notice, there had been no mention of human rights issues as there are in his case, where ‘the fraud perpetrated on me has human rights violations’ and ‘the refusal to release information necessary to access a court is itself an ECHR violation (Article 6)’.

Further, he says that the decision not to disclose in the public interest in this case is ‘perverse’ because ‘the decision has led to criminal property successfully being used in a county court, leading to my home being repossessed, and now I am homeless’, and the lack of disclosure means ‘I cannot make the UK accountable for malfeasance in public office’.

We should mention that the Appellant has mentioned the ‘qualified person’ test which is set out in s36 FOIA, but we note this is not an exemption relied upon by COLP and there is no ‘qualified person’ test in s31 FOIA.

The Commissioner responded to the appeal. The Commissioner notes that:-

The Commissioner reiterates his view as set out in decision notices that COLP is correct to rely on the exemptions stated, for the reasons set out by COLP. The Commissioner states that:-

COLP made written submissions which explained the system in place for recording and investigating crimes alleging fraud:-

The submissions then relate the following in relation to s31 FOIA:-

In relation to the public interest test COLP accepts that ‘Disclosure would facilitate a better-informed public debate and a better understanding of how limited resources are utilised’. However, ‘Given the current scale of fraud in the UK, any prejudice to law enforcement is likely to have a significant consequence in respect of the number of fraud victims’ and ‘disclosure is likely to result in a reduction in the number of incidents reported to AF, with a consequential loss of intelligence’ and ‘would reduce the opportunities to deploy disruptive tactics and support victims of fraud to prevent them being repeat victims’.

The Appellant replied to both the Commissioner's and COLP's submissions, explaining further details of his own case and situation and disputing that the prejudice claimed by COLP would occur, given the failures already to investigate many fraud offences.

At the CVP hearing the Tribunal heard from the Appellant in person. The Appellant accepted that there was pressure on the police due to the number of reports of fraud, and that it might not be possible for the police to investigate all reports of fraud. However, he thought that in his case, the seriousness of the fraud and the fact that his right to possessions and home were engaged meant that his case should have been investigated. He needed the information from the police to enable him to get a fair hearing of his case. On this basis, the Appellant argued that Art 8 (right to respect for home), Art 1 of Protocol 1 (which protects property rights) and Art 6 (right to a fair trial) were all public interest reasons why the information should be disclosed to him. He also relied upon the wider public interest in increased knowledge about the criteria used by the police in deciding whether to investigate fraud as an important interest.

COLP relied on the written submissions set out above, and the Commissioner did not appear at the hearing.

We agree with the COLP’s arguments, as set out earlier in this decision. As accepted by the Appellant in the hearing, the police cannot investigate every crime and are entitled to have criteria which assist in prioritising which crimes will be investigated, including in relation to fraud offences.

Thus section 31 FOIA is engaged because disclosure of the process of prioritisation would reveal information to fraudsters that would enable them to focus their efforts on those fraud areas given less priority by law enforcement agencies and avoid those areas given high priority. We accept COLP’s argument that even if a case is not investigated there are a number of alternative tactics of a disruptive nature that are routinely deployed, as described above, for the purposes of tackling fraud crime more generally, and that these tactics would be more difficult to implement if victims of fraud believe that no investigation will take place, and are less likely to report an incident. We accept that any loss of intelligence would prejudice the ability of law enforcement agencies to deploy disruptive tactics and provide victim support.

In our view, it is clear that any prejudice clearly relates to (a) the prevention or detection of crime, and/or (b) the apprehension or prosecution of offenders.

The nature of the prejudice envisaged is ‘real, actual or of substance’, as it is said that fraudsters would evade detection and the police would be less able to investigate crime. There is a clear causal link between the disclosure of operational criteria and the prejudice claimed.

The Tribunal has no difficulty in accepting that the envisaged prejudice would take place. Criminals are undoubtedly very interested in criteria by which the police decide whether or not to investigate crime, with a view to avoiding detection. Many members of the public would be discouraged from reporting fraud if they could see that the individual crime would not be investigated, leading to a loss of important intelligence for the police.

In relation to the public interest test we accept, as do COLP and the Commissioner, accept that ‘disclosure would facilitate a better-informed public debate and a better understanding of how limited resources are utilised’. However, we also accept that, as COLP argue, ‘given the current scale of fraud in the UK, any prejudice to law enforcement is likely to have a significant consequence in respect of the number of fraud victims’ and ‘disclosure is likely to result in a reduction in the number of incidents reported to AF, with a consequential loss of intelligence’ and ‘would reduce the opportunities to deploy disruptive tactics and support victims of fraud to prevent them being repeat victims’.

Those are important public interest issues which, in our view would outweigh the benefits of transparency and increased accountability. However, the Appellant’s submissions ask us to consider that the public interest factors to be considered should take into account the personal circumstances of his case, including those which engage his human rights. Thus, he says he needs the requested information to help him in a bid to have COLP investigate the fraud offence that he says he has reported. He needs the fraud offence investigated because, he says, it has led to an injustice in the civil courts which affects his right to property and home life which he cannot remedy without the alleged fraud being dealt with and investigated.

The rights under the FOIA to disclosure of information are not the only rights to information in the English legislative framework. We understand that this is the point made by the Commissioner when he refers to the Moss case in his Response to this appeal. Thus, in the case of Moss v the Information Commissioner and the Cabinet Office [2020] UKUT 242 (AAC), the Upper Tribunal endorsed the view that the FOIA did not provide an exhaustive scheme for disclosure of information.

Thus, the Appellant is engaged in civil litigation, for example, which has its own set of rules about disclosure from parties and also from third parties not involved in the litigation. Our role is to apply the law of the FOIA to a request and we are not in a position to adjudicate on other legal processes which might be in train. The fact that disclosure might not be ordered under the FOIA does not mean that there is a breach of a person’s human rights because the FOIA does not provide the limits of legal disclosure to individuals.

We can of course take into account submissions about the importance of the information sought for the individual Appellant, when we consider the public interest test, and we will do this. There is a public interest in assisting a person defend their rights as the Appellant says he is seeking to do, although by definition that is also a very personal interest as well, as the Appellant in this case has made clear.

However, we do remind ourselves of the information sought in this case, and again of the limits of our role. As the Commissioner said in the decision notice, it is not the place of the Commissioner or this Tribunal to comment on how COLP dealt or will deal with the Appellant’s complaint of fraud, as this is outside both of our jurisdictions.

In addition, if COLP has recorded anything about how it dealt with the Appellant’s complaint then this may be accessible to the Appellant via his access rights under the Data Protection Act (DPA). We note that personal information of the Appellant is excluded from the FOIA. If the Appellant has made a request under the DPA, and is dissatisfied with the response, then he can make a separate complaint to the Commissioner.

The Commissioner considered that scope of the request in this case to be ‘What criteria, including any 'points system', do Action Fraud use to categorise victim complaints? Please send the points system if there is one’. Whether this information should be disclosed is the extent of our role.

Although we can see that this information might be of use to the Appellant to assist his understanding of how COLP dealt with his case, the information sought does not, on its own, impact or advance the Appellant’s human rights position. Disclosure will not advance his civil claim (he says he needs his fraud allegation to be actually investigated for that to happen), and disclosure would not affect whether his Art 8 or Art 1 Prot 1 rights have been breached. These are matters which might have to be pursued through other fora and we have no jurisdiction to decide them.

Thus, while we are prepared to take into account the importance that the Appellant places on disclosure of this information for the purposes of the public interest balance, in reality disclosure is unlikely to advance the issues about which the Appellant is really interested and so this consideration will have little weight in the public interest balance.

Having formed that view, the conclusion of the Tribunal is that the strong public interest factors in favour of withholding the information outweigh the public interest factors in favour of disclosure.

On that basis, this appeal is dismissed.

We note that the Appellant made an application at the end of the hearing for a copy of the recording of the hearing to be paid for at public expense, due to his short term memory issues (referred to in medical evidence). The Appellant was advised to consider the Tribunal’s reasons before making that application as the decision may contain all the information he needs as to how the Tribunal has considered this case.