Kevin Bridgwood v The Information Commissioner

The Appellant in these proceedings is in receipt of a police pension. On 2 June 2020 the relevant Chief Constable wrote to him in the following terms:

“On 30 January 2019 I wrote to you, in my capacity as Police Pensions Authority, setting out the reasons for my decision under regulations 33 and 37 of the Police (Injury Benefit) Regulations to reduce your injury pension to Band 1.

It has been brought to my attention that some of the information on which I relied in making that decision, and in particular information about your qualifications and work history at paragraph 5 of the letter of 30 January 2019, was irrelevant, in that the information did not relate to you, but to another person.

As my previous decision relied in part on that information I accept that the decision cannot stand. As you know, the decision has not yet been implemented, and I hereby formally withdraw it. I do not propose to re-take the decision until after the conclusion of the judicial review proceedings which you and others have brought against me as Police Pensions Authority, in which you allege that I did and do not have the power to make a decision under regulation 33 in your case in any event. Future decisions in your case will be made in accordance with the principles and guidance to be provided by the Administrative Court.”

In addition to the judicial review the Appellant took other steps. On 8 September 2019 he made a complaint to the Office of the Police, Fire and Crime Commissioner (OPCC) (subsequently the Office of the Police and Crime Commissioner, OPFCC) responsible for that police force, making complaints against the Chief Constable including two breaches of the criminal law stating that his complaint “revolves around the actions of the Chief Constable and the ‘Gross Misconduct’ it displays.”

The OPCC on 5 November 2019 informed him that it considered the complaint vexatious. He wrote to the Independent Office for Police Complaints (IOPC) in April 2020 asking it to intervene and disapply that decision. On 14 October 2020 it wrote to the Appellant explaining its role:

“Our role is to review whether the decision to disapply, for example to take no action, should have been taken. Our role is not to investigate your original complaint.”

The IOPC upheld his appeal, stating that it considered the complaints were distinct from the question of the pension reduction; explaining “When we uphold your appeal this means that we believe the decision to disapply should not have been taken.” The OPCC therefore was required to complete a local resolution or investigation of the complaint in accordance with the provisions of the Police Reform Act.

The Appellant was not satisfied by the actions of the OPCC in response to the IOPC and obtained information from the OPCC. He made a further information request to the OPCC on 6 December 2023

“Based on the information now in my possession which includes the admissions that Senior OPCC Staff have been engaged in ‘Scoping’ the evidence relating to the former CC [Chief Constable] [name redacted] complaints since the 14th October 2020 to the current date, and that complaints against a Chief Constable require detailed records to be maintained please provide the following,

1 The names and or positions held of the Staff within the OPCC engaged in the ‘Scoping’ process? And over what period of time have they been engaged in that task? (Days, months and year of involvement)

2 Any internal or external notes, records, emails or other documents, however generated or stored, which have been created by the OPCC Staff engaged in the ‘Scoping’ process, including [name redacted] and the current PCC [name redacted] regarding the complaints against former CC [name redacted]. (Correspondence issued by me is not required)

3 Any reports, or enquiries made by the OPCC Staff, into the complaints including any reports, or information from other bodies or persons, in response to questions presented by the OPCC Staff including any comments, or responses made by the former CC [name redacted] in response to the allegations.

When a complaint, is made against a Police Officer, particularly one involving criminal allegations, a notice must be served upon that officer to inform him/her of the complaint.

4 Please provide a copy of that document displaying the date issued and any response made by the officer.

CC [name redacted] was permitted to retire and or resign premature to the completion of his contract, and prior to any investigations being conducted by the PCC into the allegations made against him.

5 Who made that decision; why was he permitted to retire or resign whilst subject of criminal and misconduct allegations, and what was the rationale for accepting his retirement or resignation?”.

The OPFCC responded on 1 February 2024. In response to part 1 of the request it confirmed that the person responsible for the scoping was the Independent Review Manager. It withheld information relating to parts 2,3 and 4 relying on a statutory exemption. It replied to part 5:-

“..the FOI Act 2000 only extends to requests for recorded information. It does not require public authorities to create information to answer questions generally; only if the information is already held in recorded form. The Act does not extend to requests for information regarding the application or implementation of policies, or the merits or demerits of any proposal or action”.

The Appellant complained to the IC who investigated. In his decision notice IC-300802-Y7K8 the IC upheld the public authority’s revised position with respect to the request..

In responding to part 1 of the request, by giving the job title “Independent Review Manager” of the one individual who had been involved in the scoping exercise this part of the request had been adequately responded to since the request was for “The names and or positions” of the staff involved.

The IC upheld the withholding of information within the scope parts 2 and 3 of the request by reason of exemptions in s31 FOIA which provides (so far as is relevant):

The IC concluded that ascertaining whether the Chief Constable had failed to comply with the law or had behaved improperly were functions of the OPCC and that disclosure could risk the ability of the OPFCC to discharge its function:

“If the process does not allow for information to be kept in confidence then it would deter from information being provided. This would be likely to prejudice the exercise of the OPFCC’s [Office of the Police, Fire and Crime Commissioner] function and would undermine its maintenance of the various legal requirements about confidentiality of information. To ensure that a fair process is conducted the OPFCC must be confident that it can conduct processes/investigations without fear of that information being disclosed into the public domain or used adversely to make further complaints prior to the conclusion of any due process.

The matters the applicant has raised is [sic] still ongoing and as such it is a reasonable position to take that disclosing information about the nature and outcome would prejudice the case going forward. Releasing information without it being concluded would invite undue public scrutiny which would adversely impact on the outcome.

The value of investigations/scoping exercises, such as those which are conducted into alleged breaches of standards of professional behaviour, rely on discretion and full cooperation.

Any release of information relating to ongoing investigations could prejudice and undermine those investigations. In addition, the right to a fair outcome could be undermined”.

The IC considered that there was a clear causal link between disclosure and the likely effect of prejudicing the discharge of the function and that at the time of the request, the complaint matter was not concluded, therefore disclosure of the withheld information may impact on the course of the investigation and undermine the formal process. Furthermore, having considered the nature of the prejudice that could occur, the Commissioner is satisfied that this would clearly be real and of substance.

In weighing the competing public interest the IC recognised the importance of transparency in demonstrating that there were effective procedures for addressing questions of misconduct, however it was of paramount importance that such procedures were not jeopardised and the balance of public interest lay in maintaining the safe space for the investigation.

With respect to parts 4 and 5 of the request and whether the public authority held information – a copy of a notice served on the Chief Constable in connection with the complaint and information why the Chief Constable was “permitted” to resign. The IC accepted the OPFCC’s confidential explanation why such notice had not been served and also the explanation that such a retirement was a matter administered by the police force rather than one requiring the consent of the OPFCC. The IC therefore concluded that this information was not held.

In the introduction to his grounds of appeal the Appellant stated his overall position:

He went on to state that:

In his extensive supporting argument the Appellant was highly critical of the scoping progress and the time taken, repeated criticisms of the Chief Constable and the other officials connected with these events. He argued that no investigation had taken place and relied on the terms of the Police Conduct Regulations 2012 to specify the steps which should be taken.

In resisting the appeal the IC argued that there were three questions for the tribunal to resolve:

In a later document the Appellant raised the issue that there had been no explicit response to the final section of the first part of the request “what period of time have they been engaged…” However the tribunal notes that this was not included in the grounds of appeal and is satisfied that no useful purpose would be served by considering the issue now.

While the tribunal appreciates the concern which the initial letter reducing his pension must have caused him, the prompt action taken with the assistance of the Police Federation mean that within months the issue of the impending reduction in pension had been resolved. It was some months after that resolution when the Appellant made a complaint against the then Chief Constable, who had written to the Appellant in his capacity of being the professional lead of an organisation of some thousands of police and civilian staff, with a large number of individuals such as the Appellant receiving pensions from it.

Despite the obviously very restricted role the Chief Constable had in this affair the Appellant has made a series of allegations of criminal acts and gross misconduct against the Chief Constable. The Appellant has over-valued his complaint, these are not “very serious complaints” against the Chief Constable personally, they arise out of maladministration which thanks to prompt action had no financial consequences and were swiftly resolved.

The IC’s decision notice correctly noted that for the first part of the request, the name or job title of the relevant individual was sought and the job title was provided. IC has correctly identified the issues. The engagement of s31 to protect the confidentiality of the scoping exercise to determine whether there had been misconduct or a failure to comply with the law was correct, and there was negligible public interest in disclosure and some value in maintaining confidentiality. In the circumstances of the case the reasons for the absence of any records falling within parts 4 and 5 are convincing, on the balance of probabilities such records do not exist.

The tribunal dismisses the appeal.