Alex Homer v The Information Commissioner & Anor

In this Decision the following terms have the following meanings:

This is an Appeal against the decision of the Commissioner as set out in the Decision Notice.

The parties consented to the Appeal being decided without a hearing. The Tribunal is satisfied that it was fair and just to do so. The Tribunal received and considered a bundle of documents, including among other things the Appellant’s notice of appeal, Responses from the Commissioner and the Council, a number of witness statements, and correspondence between the parties relating to the Request and to the Appellant’s complaint to the Commissioner. The Tribunal separately received further submissions from Counsel for the Appellant (Jonathan Scherbel-Ball and Hope Williams) and for the Council (Adrian Davies), dated 13 June 2025, which it considered.

On 28 July 2025 the First Draft Decision was sent to the Council under embargo for the purposes of inviting submissions as to whether any part of the First Draft Decision ought to be closed, and whether it contained any typographical or other obvious errors. On 15 August 2025, following an application from the Commissioner, the Commissioner was sent a copy of the First Draft Decision for the same purposes. Comments were received from the Council and from the Commissioner on 21 August 2025. The Council confirmed that in its view no content from the First Draft Decision needed to be in a closed decision, and the Commissioner deferred to the Council.

On 8 August 2025, after having received the First Draft Decision, the Council made an application to suspend the effect of the Tribunal’s decision, apparently in the mistaken belief that the circulation of the First Draft Decision had constituted a direction by the Tribunal for disclosure. In directions dated 2 September 2025 I said that this would be considered in parallel with the finalisation of this decision. That consideration is set out at paragraph [167] below.

On furthering considering the First Draft Decision, the Tribunal noted that it had not considered the potential relevance of SOAA, and that none of the parties had referred to it in submissions. On 4 September 2025 I directed the parties to make any submissions they wished on the relevance of SOAA to this Appeal. Following further applications and case management, submissions on this matter had been received from all parties by 29 October 2025. The Council’s submissions were settled by Jonathan Auburn KC and the Appellant’s submissions were provided by the legal team of the BBC.

On 26 November 2025 the Second Draft Decision was sent to the Council and to the Commissioner for the same purposes as the First Draft Decision. The Commissioner again deferred to the Council on these issues, and the Council requested a number of redactions from the decision before publication.

This Decision differs from the First Draft Decision and the Second Draft Decision, the Tribunal having considered the submissions of the parties on SOAA and the Respondents’ comments on both drafts. Neither draft decision is, or was, of any legal effect.

The Tribunal does not consider that the Appellant suffered any unfairness in making submissions on SOAA by reason of having not seen the First Draft Decision.

The Tribunal is grateful to the parties and their representatives and for their evidence and submissions in this Appeal. The Tribunal has considered all submissions and evidence, whether or not these are specifically referred to in this Decision.

The Tribunal notes the requirement, as expressed in Barrett v Information Commissioner and Financial Ombudsman Service [2024] UKUT 107 (AAC), to minimise to the fullest extent possible the disadvantages in the Appellant’s position as not being party to the Closed Material, and in the Tribunal’s view it has done so in this case. The withheld material which is the subject of this Appeal consists only of the Report, and in the Tribunal’s view the Appellant is not disadvantaged in this Appeal by having not seen the Report. The Respondents made no closed submissions and filed no closed evidence other than the Report itself.

This Appeal relates to a serious case review carried out by the Partnership, the collective name for the safeguarding partners for the Walsall local authority area. The Review was carried out in relation to instances of child sexual abuse which were also investigated by West Midlands Police.

In 2017, the Walsall Local Children Safeguarding Board commissioned the Review. The Report appears to have been completed on 10 December 2018.

Reporting restrictions were in place during several criminal trials which took place arising from the police investigation. Following the conclusion of these trials, these restrictions were lifted, and there was media coverage of the outcome of the trials. Authorities and professionals involved emphasised the scale and complexity of the investigation and the severity of the offences which had been committed.

On 22 March 2023 a meeting of the Partnership’s Executive Group decided that the Report should not be published. The minutes of that meeting provide almost no information about the reasons for that decision. In a letter dated 28 April 2023 the Chair of the Partnership explained the rationale for the decision. Predominantly the reasons given in that letter relate, in various ways, to the need to avoid the identification of any children or young people, but there is also reference to the possibility that publicity could “stoke further threats of harm” to those people.

On 11 April 2023 the Appellant made the Request to the Council, which was for the following information:

On 9 May 2023 the Partnership published a summary of recommendations from the Report. That summary stated that the Partnership’s “Executives have made the decision not to publish [the Report] to protect those involved in the case from identification”.

The Council responded to the Request on 8 June 2023, referring only to the second part of the Request, referencing the Review Material. The Council stated that it did not hold the Review Material, and if it did, firstly, s40 FOIA would apply to exempt so much of it from disclosure that the remainder would be meaningless, and secondly, disclosure would result in a risk to health and safety.

On 14 July 2023 the Appellant requested an internal review of the Council’s response.

On 26 October 2023 the Council responded to the Appellant’s internal review request, upholding its initial refusal.

On 14 November 2023 the Appellant complained to the Commissioner. The Appellant criticised the Council’s approach to the Request in several ways, and noted in the complaint that the Council had not specifically addressed the Appellant’s request for the Report.

The Commissioner carried out an investigation and decided that:

The Appellant appealed to the Tribunal, in relation only to the disclosure of the Report. Accordingly, the remainder of this Decision deals only with the Report and not with the Review Material.

The Appellant raised four specific Grounds of Appeal regarding the application of s40 FOIA in the Commissioner’s decision, which were that:

The Council submits that the Commissioner’s approach in the Decision Notice was entirely correct, and that it could also or alternatively rely on the exemptions in ss38, 41 or 44 FOIA to withhold the Report.

The Commissioner’s Response sets out a more thorough and detailed analysis of the application of s40 FOIA to the Requested Material than the Decision Notice, and maintains that his application of this exemption was correct. The Commissioner does not provide an analysis of the application of ss38, 41 or 44 FOIA to the Report.

The Appellant has made further submissions in reply to these matters.

The Tribunal considered all of the parties’ evidence and submissions.

The Request was made, and considered by the Council, pursuant to FOIA.

Sections 1 and 2 of FOIA provide as follows:

General right of access to information held by public authorities.

Health and safety.

Personal information

Any information to which a request for information relates is also exempt information if—

“Personal data” in s40 FOIA has the same meaning as in Parts 5 to 7 DPA. Section 3(2) DPA provides that “personal data” means “any information relating to an identified or identifiable living individual” to which Part 2, Part 3 or Part 4 DPA applies. 

Information can be personal data without the individual to whom it relates being identifiable from the information itself. In Farrand v Information Commissioner and London Fire and Emergency Planning Authority [2014] UKUT 0310 (AAC) (“Farrand”), HHJ Jacobs said that “[t]he important issue is whether the data can be related to a living individual, not whether that person can be identified from any particular part of the data […] suppose the request related to my medical records. Each individual entry would probably contain nothing that would identify me as an individual, but every entry could be related to me if it were set in the context of my records as a whole”.

“The data protection principles” in s40 FOIA means the principles set out in Article 5 UKGDPR and in section 34(1) DPA.  The principle directly relevant in this Appeal is the first data protection principle, the requirement that the processing of personal data must be lawful, fair and transparent.

The processing of personal data is lawful only if and to the extent that at least one of the conditions in Article 6(1) UKGDPR is met. The condition on which consideration has focussed in this Appeal is that in Article 6(1)(f), that the processing is necessary for the purposes of legitimate interests pursued by the Council or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. 

As identified by the UK Supreme Court in South Lanarkshire Council v Scottish Information Commissioner [2013] UKSC 55 (“South Lanarkshire”), in the context of the predecessor provision, condition 6 in Schedule 2 to the Data Protection Act 1998, this test involves three steps:

In relation to the second step in this test, the Court held at [5] that “’necessary’ means ‘reasonably’ rather than absolutely or strictly necessary”, and said that “in ordinary language we would understand that a measure would not be necessary if the legitimate aim could be achieved by something less”.

The processing of special category data, as defined in Article 9 UKGDPR, is also relevant in this Decision. In the interests of concision, this Decision does not set out in full all of the provisions of the relevant law which have been cited by the parties, but makes reference to these where relevant below.

Sections 41 and 44 FOIA provide as follows:

Information provided in confidence.

Information is exempt information if—

The Review was commissioned pursuant to Regulation 5 of the 2006 Regulations, which were made pursuant to relevant provisions of the 2004 Act.

On 27 April 2017, the 2017 Act was passed. On 29 June 2018, the Children and Social Work Act 2017 (Commencement No. 4 and Transitional and Saving Provisions) Regulations 2018 came into force. Among other things these Regulations commenced various amendments to the 2004 Act associated with the abolition of Local Safeguarding Children Boards and the introduction of a different regime for child safeguarding.

By Regulation 5(1)(e) of the 2006 Regulations, a function of Local Safeguarding Children Boards was “undertaking reviews of serious cases and advising the authority and their Board partners on lessons to be learned”. The 2006 Regulations do not refer to the publication of reports.

By contrast, a parallel statutory provision in the replacement scheme set out by the 2017 Act, s16F 2004 Act, provides that the safeguarding partners must publish the report of a local safeguarding practice review, unless they consider it inappropriate to do so.

SOAA provides for lifelong anonymity for victims and alleged victims of specified sexual offences. Section 1(2) provides that:

Section 2 sets out the offences to which the Act applies, and s3 includes a power for a judge to disapply s1 in certain circumstances.

Section 6 provides that:

“publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings[.]

The Tribunal has reviewed the Report, in Closed Material. A substantial proportion of the text in the Report is or includes information which relates to individuals. The Tribunal’s discussion of the extent to which this constitutes personal data for the purposes of FOIA begins at paragraph [57] below.

The Report is 48 pages long. Much of it is comprised of a detailed and specific account of events over a period of years, drawn from reviews of records and independent management reports from agencies involved. By its nature this account focusses on what information was known to those agencies, and what steps were taken by them.

While steps have been taken to anonymise the individuals referred to in the Report, the way in which it is written gives rise to a high chance that, if the Report were disclosed in its entirety, persons may be identified and that if a reader was to know the identity of some of those individuals then the identities of others could also be deduced. The Council’s evidence and submissions rightly identify this risk of “jigsaw identification”. This is particularly so in relation to the victims of abuse and people associated with them.

Other documents disclosed in open evidence by the Council show a more targeted approach to redaction, which in the Tribunal’s view could be applied to the Report as well. For example, the Tribunal has seen a Terms of Reference document for the Review which has been redacted in some cases to remove individual words or phrases. (Footnote: ¹)

It is notable that a bullet-point list in one paragraph of the Report, numbered 2.2, is almost a word-for-word copy of paragraph 4 in the Partnership’s Terms of Reference document (headed “Questions to be considered in the Review”). This was disclosed by the Council in open evidence with two small redactions and was included in the Tribunal’s open bundle. This text, as redacted, does not appear to include any personal data. It would be surprising if the Council were now to maintain that paragraph 2.2 of the Report, with suitable redactions, could not be disclosed.

Similarly, the recommendations which were published by the Partnership appear in more than one place in the Report. Nevertheless, the Council claims that these need to be withheld to the extent that they form part of the Report, in reliance on s40. Plainly these two positions are inconsistent.

As will be apparent from what follows, it appears to the Tribunal that neither the Council nor the Commissioner applied a sufficiently specific approach to the disclosure of the information set out in the Report.

Council officers variously express views that a report which is significantly redacted would be meaningless, difficult to follow, and/or “would not inform the reader of the [A]uthor’s views of what had in fact happened”. These concerns miss the point. The Council is required by FOIA to disclose the Report in response to the Request, except to the extent that one or more exemptions in FOIA applies.

In her Witness Statement, the Council’s Head of Safeguarding Partnership for Children and Adults says that “there would be a risk of putting 2 and 2 together and adding them up to 6 if a review were to be published in heavily redacted form. Such a document would not contain the underlying information and explanations. One of the possible risks of reaching conclusions from inadequate information would be the misidentification of individuals”. However, when disclosing information it is open to the Council to provide any covering explanation which it thinks appropriate in order to mitigate any such difficulties, and avoid information which might otherwise be misleading from having that effect.

The s40 exemption applies only to information which is personal data. The Tribunal does not agree with the Council and the Commissioner that the whole of the Report constitutes personal data. Accordingly, not all of the information in the Report can be withheld under s40.

The clearest examples of this type of information are the introductory elements of the Report which describe the context and methodology, and the findings of the Report, to the extent that these do not refer in any way to individuals.

To the extent that the Report does include personal data, the Tribunal agrees with the Appellant that, when applying the s40 exemption, it is necessary to consider different categories of individuals separately.

The Tribunal can discern up to five categories of individuals whose personal data either are, or arguably are, contained in the Report. The first of these is the Author, whose name and details appear on the first page. In the body of the Report there are references to four categories: victims of abuse; perpetrators of that abuse; professionals, including public officials; and others referred to in the body of the Report. The category of “others” includes anonymised individuals referred to in the Report who may or may not be perpetrators of abuse, and do not fit into the other categories, but whom the Tribunal cannot identify from the evidence available.

Paragraphs [62-111] consider the application of the s40 exemption to the individuals referred to in the body of the Report, not including the Author. Paragraphs [112-115] consider the Author’s personal data.

In the case of each of these categories of individual the Tribunal considers that the outcome of the first two elements of the three-step test set out in South Lanarkshire is the same.

The Tribunal is satisfied that the Appellant is pursuing a legitimate interest in seeking disclosure of the Report, being transparency and accountability in relation to the serious sexual abuse of children, and in particular an understanding of the circumstances giving rise to the events of this specific case. There is a clear public interest in understanding how these events can have occurred over an extended period of time, and the Report has been prepared specifically with a view to identifying lessons to be learned.

The Tribunal is also satisfied that disclosure of the Report would be necessary to further those interests, in the sense of that term used by the Supreme Court in South Lanarkshire. It is difficult to see how something less than disclosure of the Report could further the relevant interest.

The Commissioner came to the same conclusion in the Decision Notice, and no party has submitted that this position is incorrect.

The question of the balancing of legitimate interests must be considered separately in relation to each category.

The parties have made submissions as to the relative weight of different interests in this balancing exercise in the context of this Appeal, which the Tribunal has considered.

The Council interprets the Commissioner’s position in his decision as being that “where an individual has a legitimate expectation that personal information about that person will not be revealed, that expectation is not overridden by a greater need to put that information in the public domain”. This does not appear to be a correct reading of the Decision Notice, but in any event it would not be correct as a general statement of the law. The balance must be between the relevant legitimate interests in disclosure of the Report and the interests or fundamental rights and freedoms of the data subjectson the facts of this case. An expectation of privacy does not automatically outweigh a legitimate interest in disclosure.

The victims of abuse have a clear and compelling interest in maintaining their privacy in relation to the events detailed in the Report.

In recognition of this, various public authorities involved have taken steps throughout the proceedings relating to these cases, over a period of years, to prevent the disclosure of victims’ identities. The Appellant has been clear that he does not seek disclosure of those identities.

As noted above the Tribunal is satisfied that disclosure of some elements of the Report, even with the steps which have been taken to anonymise the information, would risk either direct identification or “jigsaw identification” of victims. The Tribunal is mindful here that disclosure of information under FOIA is disclosure to the world, free of further restrictions.

The question whether an individual is identifiable from information which may be disclosed is not the only consideration in applying the s40 exemption, and is not necessarily determinative one way or the other. The question is whether disclosure would contravene the data protection principles. The Tribunal nevertheless considers that the possibility of identification is central to the balance of interests in this case.

Having considered the evidence and submissions of the parties, the Tribunal concludes that, in the case of the victims of abuse, who have been subjected to extremely serious acts in highly traumatic circumstances, their interests in privacy do, on the facts of this Appeal, outweigh the legitimate interest in disclosure if the disclosure would increase the risk of their being identified.

The enactment of SOAA adds further weight to the argument in favour withholding any identifiable personal data of victims. Parliament has decided that the anonymity of victims, and alleged victims, is sufficiently important to prohibit the publication of information which could reveal their identities.

The Council’s submissions as to the relevance of SOAA appear to suggest that, to the extent that SOAA applies to this Appeal, this renders s40 somehow irrelevant, although without providing detailed reasoning. On the contrary, the Tribunal must consider whether any exemptions, including that provided by s40, apply to the Requested Information. There is nothing in SOAA which ousts the application of FOIA or provides for a hierarchy between these two statutes.

The relevance of SOAA to the application of the s44 exemption is considered below.

There is the question whether some personal data of victims could nevertheless be disclosed if the risk of identification is removed. It is not clear that the disclosure of every item of victims’ personal data in the Report would increase the risk of identification. As HHJ Jacobs noted in Farrand, information can be personal data despite the relevant data subject not being identifiable from the data itself in isolation; and if personal data from which individuals can be identified can be removed, other personal data may remain.

The Tribunal notes from other similar reports which were submitted in evidence that these contain substantial personal data regarding individuals on an anonymised basis. While the Council is rightly concerned to avoid the risk of identification of victims through the disclosure of the Report, it does not appear to have considered to what extent some personal data could be disclosed where there is no such risk.

There are a number of potential examples in the Report, including: dates when certain procedural steps were taken by public authorities in relation to certain individuals; or references to events and circumstances in the lives of the victims which cannot be thought to give rise to a risk of identification. It appears to the Tribunal that some of this information could potentially be disclosed without identifying any individuals.

The Tribunal considers that, once any information which could contribute to their being identified is redacted, the victims’ interest in privacy in relation to this information would not outweigh the legitimate interest in publication.

In contrast to the victims, different considerations apply to the perpetrators of the abuse referred to in the Report. While the identities of those who were convicted of criminal offences in relation to the underlying events have been the subject of media reporting, given the anonymisation of the Report it is not clear to the Tribunal whether (or how many) persons referred to in the Report were convicted of offences or the extent to which their identities have been disclosed in connection with such convictions. It is also not clear to what extent the specific information in the Report which may be personal data of perpetrators has or has not already been made public in connection with any criminal convictions.

To the extent that the identity or identities of perpetrators of abuse referred to in the Report have been disclosed by virtue of publication of their criminal convictions for committing that abuse, those persons have little if any reasonable expectation that information in the Report relating to their involvement in or the circumstances surrounding their criminal offences should not be public. Moreover, in contrast to the victims, any privacy interests of such persons are outweighed by the significant and legitimate public interest in disclosure of information contained in the Report relating to such involvement in criminal offences.

To the extent that the identity or identities of perpetrators of abuse referred to in the Report have not been disclosed by virtue of publication of their criminal convictions for committing that abuse, the Tribunal equally considers that their legitimate privacy interests do not outweigh the legitimate interest in disclosure.

It appears that any personal data of professionals forms a very small proportion of the text in the Report. Many of the references to professionals are to groups, or to agencies or institutions, rather than individuals. Some are references in the form of recommendations for action, rather than statements about particular professionals themselves.

The Tribunal has considered the application of the s40 exemption based on the evidence provided. Much of the evidence relating specifically to professionals focusses on the risk of harm arising from disclosure. This evidence is discussed at paragraphs [119-132] below.

The actions of individual professionals detailed in the Report are, for the most part, specific actions taken in relation to recipients of public services. It should be remembered here that the Report is based on a review of paper records and reports, and not on an interrogative investigation; the types of events recorded are therefore limited to what is found in those records and reports.

The professional actions recorded are not senior administrative decisions affecting policy or strategy, but decisions on more operational and focussed matters. Examples include the taking of certain notes by GPs or social workers. This is not to say that such decisions are unimportant – decisions of this type can of course have a significant impact on the lives of individuals and the course of events in relation to them - but in the Tribunal’s view this is relevant to the expectation of privacy on the part of those professionals in the context of this Appeal.

The Appellant refers to the Commissioner’s guidance document “Requests for personal data about public authority employees”. The Tribunal has considered this guidance in the context of the Appeal. The guidance does not have the status of law but is helpful.

The Tribunal has balanced the need for transparency and accountability of the professionals involved in this case with their rights, including what it considers to be their reasonable expectation of privacy in relation to the actions referred to in the Report and any potential harm resulting from disclosure.

In the context of the Report, the events referred to have attracted a significant media profile, and the events experienced by the victims are clearly exceptionally traumatic. In these circumstances, the disclosure of the identity of a professional in the context of their actions or omissions has the potential to result in significant detriment.

The Tribunal does not disagree that the actions of professionals should be the subject of appropriate transparency and accountability, in particular in relation to the prevention of harm to children; but the Tribunal does not accept that this necessarily extends to the disclosure to the world of their identities and actions.

The Tribunal concludes that, in relation specifically to the personal data of professionals where those individuals may be identified from the Report, the balance of interests is in favour of withholding that information.

This conclusion should be applied carefully. For example, there are references in the Report to classes of professionals involved, such as GPs, social workers, and so on, from which no individual can be identified; there are references to actions having been taken, such as certain reports being submitted or referrals made, without reference to who took these actions; there are also references to institutions by name, without further particularisation. Even if these references were in any instance to constitute personal data, the Tribunal does not conclude that these references should be withheld under s40 FOIA where they do not give rise to an increased risk of identification of individuals.

As noted above the Tribunal cannot identify from the Report what overlap exists between individuals referred to in the Report and those convicted of offences in relation to the same series of incidents. Accordingly, there are individuals referred to in the report who may not be victims, perpetrators or professionals.

In the Tribunal’s view the balance of interests requires this personal data to be withheld. The considerations relating to privacy are similar to those applying to professionals, although without the countervailing public interest in transparency and accountability.

Accordingly, personal data of other individuals should be withheld under s40 FOIA where the disclosure of that data could increase the risk of their being identified.

The remaining elements of the first data protection principle are that the data must be processed fairly and in a transparent manner in relation to the data subjects.

The Tribunal considers that, once any increase in the risk of identification of individual victims or professionals is removed, the publication of any remaining personal data in the Report would be fair and transparent. No party has argued otherwise. In the Tribunal’s view there are no considerations of fairness or transparency which would be sufficient to result in the disclosure of personal data in accordance with the analysis set out in this Decision contravening the first data protection principle.

Having concluded as above in relation to the disclosure of personal data generally, it is possible that some of the information which (subject to the consideration of further exemptions below) falls to be disclosed constitutes special category data for the purposes of UK GDPR.

“Special category data” is referred to in Article 9(1) UKGPDR as:

Processing of special category data is prohibited under Article 9(1), unless a condition in Article 9(2), as supplemented by ss10 and 11 of and Schedule 1 to DPA, applies.

Article 10 UKGDPR deals separately with personal data relating to criminal convictions and offences. By s10(5) DPA, processing of criminal offence data is lawful only if it meets a condition in Part 1, 2 or 3 of Sch 1 DPA.

Having considered the Report itself, it appears that, once redactions have been applied under the s40 exemption as set out above, little of what remains is likely to be special category data.

The Commissioner submits that the only potentially applicable conditions are those in DPA Schedule 1 Part 3 paragraph 29 (that the data subject has consented to the processing) or paragraph 32 (that the data subject has manifestly made the data public). The Appellant submits that the conditions in paragraphs 10 (processing necessary for the prevention or detection of unlawful acts), 11 (protecting the public against dishonesty), 13 (journalism in connection with unlawful acts and dishonesty etc), or 33 (processing for the purposes of legal action) may also be applicable. With the exception of paragraph 13, the Appellant’s arguments on these paragraphs are not detailed.

The parties’ references to these conditions appear to assume that any special category data in the Report will be criminal offence data, subject to Article 10 UKGDPR, but do not directly address the applicability of Article 9 UKGDPR to any other potential special category data.

The Tribunal notes that other serious case review reports have been published, including some dated more recently than the Report. It appears to the Tribunal that, at a general level, these reports appear to contain information which is at least as likely to be special category personal data as some of the information in the Report. It would be remarkable in this context if there were no lawful basis for publishing these reports, including such information, in compliance with the DPA and UKGDPR.

In the Tribunal’s view, any special category data which remains in the Report once redactions have been applied as set out above can be processed by the Council in reliance on DPA Schedule 1 paragraph 13. That paragraph provides a condition for processing special category where:

Applying this paragraph to the facts of this Appeal:

The other gateways for the processing of special category personal data put forward by the Appellant do not apply.

For either of paragraphs 10 or 11 of Schedule 1 DPA to apply, the relevant processing must be carried out without the consent of the data subject, so as not to prejudice other purposes. That does not apply in this case – the consent of the relevant data subjects is not relevant to whether or not the processing would further the relevant purposes.

Paragraph 33 relates to the processing of personal data for the purposes of legal proceedings, but none appear to be contemplated in the context of the Report.

The Author is named in the Report. That person’s name and other information about them is their personal data and accordingly the s40 FOIA exemption potentially applies to it.

Applying the same three-step test as set out above, the Tribunal is not satisfied that disclosure of this information to the Appellant would further a legitimate interest. The relevant interest which the Tribunal has found above to be legitimate is that of transparency and accountability in relation to the serious sexual abuse of children. It is not clear that the disclosure of the identity or other personal data of the Author would further this aim.

It could be said that it does further that aim, in that knowing the identity of the Author would provide assurance as to the skills, capability and authority which have been applied to the Review, and therefore the extent to which the Report can be relied upon. If and to the extent that this were to be a legitimate interest, then the Tribunal would find that this disclosure would be necessary to further it.

However, if this were so then the Tribunal would not accept that the balance of interest is in favour of disclosure. As noted above the Report has been drafted by the Author not with the intention of publication, and the Author must therefore have had an expectation of privacy in relation to the Report specifically. The Council’s documentation relating to the Review indicates that an eventual report was intended for publication, but the Report itself is expressed not to be in publishable form. Further, the identity of the Author can only contribute tangentially to the aim of transparency and accountability, and the Tribunal does not consider that the interest in disclosure outweighs the Author’s rights.

As will be clear from this discussion, the Tribunal does not agree with the Council that disclosure of a redacted version of the Report would be “meaningless”. There is significant content in the Report which can be disclosed without infringing the rights of data subjects under the data protection principles – specifically, information which:

The s40 FOIA exemption is absolute, and no public interest test is required.

Accordingly, it is the Tribunal’s view that some of the content of the Report can be withheld in reliance on s40, and some cannot, as described in the substituted decision notice at the Annex to this Decision.

It appears from the Council’s evidence and submissions that there are two categories of individuals whose health and safety is said to be endangered by disclosure: victims of abuse and professionals (and potentially their relatives); and two ways in which endangerment could arise: through identification of individuals giving rise to violence or threats against them; and through further publicity being given to the case, also giving rise to threats of harm, and potential impacts on their mental health.

There is significant overlap between the application of this exemption and that of s40 FOIA in this case, in that the stated risks to health and safety are said almost entirely to arise in connection with the potential for individuals to be identified from the Report. To some extent the Council’s evidence elides the consideration of the two exemptions.

The Tribunal has decided (above) that some content of the Report should be withheld under s40 FOIA to the extent that it is personal data of any individuals where disclosure could increase the risk of the identification of those individuals.

The Tribunal is satisfied that the disclosure of any information (whether or not this is personal data) which could lead to the identification of victims would in itself, without anything further, be capable of creating a risk of harm to those individuals, in relation particularly to their mental health. The Tribunal has not seen evidence which establishes that this disclosure would give rise to further risks to their health and safety beyond this, but that is not necessary for the section 38 exemption to be engaged. Having considered the relative factors in favour of disclosure, the Tribunal considers that the balance of the public interest test is in favour of withholding any such information, and accordingly that the s38 exemption applies to it.

If any such identifying information in relation to victims is removed, does there remain a risk to health and safety, to victims or others, arising from disclosure of a suitably redacted version of the Report?

The Tribunal has identified arguments in favour of two such possible risks from the Council’s evidence and submissions: a risk arising from misidentification of individuals resulting from the disclosure of redacted information; and a risk of harm arising from further publicity surrounding the events more generally.

The evidence and submissions provided by the Council to support the risk to health and safety arising from disclosure of the Report are not particularised to specific elements of the Report. The evidence is limited and vague, and much of it is speculative.

The Council’s witness evidence refers to unspecified threats being made to Council officials and victims, and to a theft from a car belonging to an officer of the Council around the time of the conclusion of the criminal trials, which is described in the Witness Statement of the Council’s Executive Director of Children’s Services as a “strange coincidence”. The background to these events is not particularised or described in any detail.

The Council notes that the Commissioner decided, in relation to a request by the Appellant to a different public authority for the same information, that the Report should be withheld under s38. That decision, which the Tribunal has seen, includes reference to the relevant public authority having been made aware of threats aimed at those involved in the case, including staff and professionals, and states that the public authority provided evidence to support this.

Although the evidence which the Commissioner in that decision refers to having seen is said to be in the public domain, no party provided this to the Tribunal. The Tribunal assumes that any such evidence will have been relevant to the case of that public authority. It may or may not have been relevant to the Council in the context of the Request.

In the Tribunal’s view the Council has not established that disclosure of the Report, subject to redactions to remove the risk of identification, would, or would be likely to, endanger the health and safety of any individuals.

Any risk arising from misidentification has not been substantially evidenced, and in any event were any such risk to exist this ought to be significantly limited by the redactions referred to above in compliance with s40 FOIA, and nevertheless capable of mitigation through covering explanations by the Council.

A risk to victims arising from wider publicity is referred to in the letter from the Chair of the Partnership dated 28 April 2023, although this is not expanded upon in the Council’s evidence and the Council does not put it forward as a basis for withholding the Report. In the absence of any further evidence to support such a risk arising, the Tribunal finds that this cannot be a basis for withholding the Report, as redacted in accordance with this Decision, under s38.

Although no such risk has been substantiated by the Council on the evidence, if a risk to health and safety of any individual could be said to arise through the publicity attending merely to the publication of information relating to the events referred to in the Report, the Tribunal considers that this would be unlikely to be a basis for withholding the entire report. The s38 exemption is qualified, and the public interest in transparency and accountability in relation to these events would be likely to outweigh such a risk.

The Council submits that the Report was provided to the Council in confidence and that it should be withheld on this basis. The Council does not develop this argument in any detail, but provides evidence to support it.

The Council submits that:

The Appellant submits that:

The Tribunal finds that s41 does not apply in relation to the Report. The Council’s evidence falls short of demonstrating that it is under a legal duty of confidence in respect of the content of the Report or that disclosure of the Report to the public would constitute an actionable breach of confidence. In particular, the Council has not identified which party or parties would have a right of action for breach of confidence, or how any such action would be established.

The Council submits that the Report should be withheld on the basis that the Local Safeguarding Children Board (the correct term should presumably now be the Partnership) retains copyright in the Report and, presumably, could take action against the Council for breach of that copyright in disclosure. As with s41, the Council does not develop this argument in any detail.

The Council’s witness evidence refers to collective ownership of the document by “all three lead safeguarding partners together”, but no further evidence as to intellectual property rights is provided beyond this statement.

The Appellant submits that this argument is wholly misconceived, in particular that, by s50(1) Copyright, Designs and Patents Act 1988, where the doing of a particular act is specifically authorised by an Act of Parliament, the doing of that act does not infringe copyright, unless the Act provides otherwise. The disclosure of the Report in response to the Request, subject to the application of any other exemptions, would be authorised by FOIA itself.

The Tribunal agrees that the Council has not demonstrated that disclosure of the Report is prohibited by or under any enactment relating to copyright.

The relevance of SOAA requires separate consideration. The question for the Tribunal is whether the disclosure of the report otherwise than under FOIA would be prohibited by SOAA. While the Tribunal notes that disclosure under FOIA is disclosure to the world, this principle does not assist in deciding this particular point as the s44 exemption applies only if disclosure of the relevant information otherwise than under FOIA is prohibited.

The Council submits that “[t]he correct approach, applying SOAA[…], is to declare all information risking identification of the victims in this case exempt from disclosure”, although it does not expand on this brief statement.

The Appellant, while maintaining his position that he does not seek disclosure of any identifying information relating to victims, submits that the SOAA prohibition does not apply to the proposed disclosure to him by the Council, on the basis that firstly, disclosure of an anonymised copy of the Report would not be “likely to lead members of the public to identify a person” as a victim, and secondly that in any event the disclosure of the Report would not be “publication” for the purposes of SOAA, as it would not be “addressed to the public at large or any section of the public”.

The Commissioner declines to give any material submissions on the relevance of SOAA to the s44 exemption.

In order to decide this question, the Tribunal must consider:

No evidence has been presented to the Tribunal suggesting that any of the victims or alleged victims has died since the offences were committed, and the Tribunal proceeds on the basis that the “lifetime” anonymity provisions of SOAA continue to apply to them.

The first point can be dealt with briefly, as the Council has confirmed that all sexual offences committed against the victims are offences to which SOAA applies and no evidence has been presented to the contrary.

As to the second point, the Tribunal considers that, in the context of s1(2) SOAA, “member of the public” must be a reference to any person who is made aware of a relevant matter in a “publication” – such that any information which would identify a victim in this case would be within the SOAA prohibition – so this does not require any onward disclosure by the Appellant.

As to the third point, the Tribunal considers that disclosure to the Appellant would constitute “publication” under SOAA.

There appears to be no direct authority on this point, and none was cited to the Tribunal. Although the Council has cited Aitken v DPP [2015] EWHC 1079 (Admin) and In Re Press Association [2012] EWCA Crim 2434, these do not assist.

It is clear that the disclosure of a document is capable of falling within the first limb of the definition of “publication” in s6, as being “writing”, or “other communication in whatever form”; but would disclosure to the Appellant be “addressed to […] any section of the public”?

The Appellant makes reference to the report of the Advisory Group on the Law of Rape, to the Home Secretary, dated 14 November 1975, which the Appellant submits “led to the introduction of the Sexual Offences Amendment Act 1976, which was the basis of [SOAA]”. The Tribunal does not consider that this can be admissible or helpful evidence for the purposes of interpreting SOAA, in particular as it is too remote from SOAA itself.

Looking at the wording of SOAA itself: it is relatively brief, consisting of eight sections and one Schedule. There is nothing further in s6 which clarifies the point, and although other sections refer to specific types of publication, such as s5 which refers to newspapers, periodicals and programmes, none of these indicates that disclosure of a document to an individual would not be within the scope of SOAA.

The Act’s long title is “An Act to make provision with respect to anonymity in connection with allegations of, and criminal proceedings relating to, certain sexual offences”. This refers to anonymity without limitation or qualification, and makes no reference to the manner in which anonymity might be breached.

The Tribunal considers that, if disclosure to an individual with no surrounding protection for confidentiality were not within the scope of “publication” for the purposes of SOAA, this could clearly undermine the effectiveness of the anonymity protection which the Act appears intended to provide. If this was the case, a person or a public authority could make a number of such disclosures to individuals over time, each of which would undermine anonymity, with no clarity as to the point of which those who had received the disclosures would constitute a “section of the public”. Accordingly, the Tribunal considers that the proposed disclosure would be prohibited by SOAA.

The s44 exemption is absolute and no public interest test is required.

This does not lead to conclusion that disclosure of the entire Report would be exempt under s44; only that this exemption applies to any information in the Report which would be likely to lead members of the public to identify a person as a victim or alleged victim of relevant offences.

Applying this to the Report itself, this exemption will clearly apply to the personal data of victims which the Tribunal has also held to be exempt under s40 and s38; it may extend further as the prohibition applies to any “matter” likely to lead to identification, not limited to personal data. The Tribunal considers that the amount of any such information in the Report is likely to be very small, if any.

The Council makes reference in its evidence to several reports by the regulator Ofsted, and submits that criticisms of social services in the local area have already been publicised in those reports. The Tribunal does not believe that this argument assists the Council.

Although not made explicit by the Council in submissions, this could have formed the basis of an argument that information in the Report is exempt under s21 FOIA, as information which is reasonably accessible to the Appellant otherwise than under s1 FOIA. That argument was not set out by the Council, or by the Commissioner, and in any event the Tribunal does not consider that it would have succeeded.

The three Ofsted reports submitted all predate the Report and in any event address issues at a far more general level. They cannot be said to provide the same information as the Report. Only the recommendations from the Report can be said to have been previously published, and accordingly the s21 exemption applies to the recommendations.

For the reasons set out above, the Tribunal concludes that the Commissioner’s decision as set out in the Decision Notice was wrong as a matter of law. Both the Council and the Commissioner applied an insufficiently specific and targeted approach to the application of exemptions in order to identify information that should be released and information that should be withheld.

The Tribunal does not set out in this Decision a comprehensive line-by-line assessment of which specific information should be withheld and which disclosed. As will be clear from the Tribunal’s reasons, the question whether specific items of information in the Report should be withheld will depend on the extent to which:

In relation to victims specifically, it is clear that there will be a significant overlap between information which is exempt under s40 and that which is exempt under s44; it may be that, when the Report is considered closely, each of these exemptions applies to exactly the same range of information. This is not a matter which the Tribunal needs to decide.

The Tribunal lacks the Council’s detailed knowledge of the anonymised facts and circumstances referred to in the Report and the Council’s professional expertise in the management of safeguarding risks. The evidence also does not provide sufficient detail to analyse the extent to which particular items of information might, in the context of this case, lead to a risk of identification.

Accordingly, the Tribunal sets out in its substituted decision notice the principles which the Council must apply in disclosing the Report, subject to redactions.

The Council’s application to suspend the effect of the Tribunal’s decision in this Appeal was, it submits, made in order to allow time for the Council to consider an appeal against this decision. The Tribunal declines to suspend the effect of this decision, but notes that it will be open to the Council, if so advised, to make an application for permission to appeal this decision, and to apply for suspension of effect if it wishes to do so. The order set out above requires the Council to comply within 35 days, which is also the time limit for submitting an application for permission to appeal this decision.

The evidence presented to the Tribunal raises the question whether there is further relevant material which ought to have been disclosed or considered in this case (in open or in closed), and if there is not, why that would be.

The Report is marked “Confidential Final Report”; but the text of the Report – included in the information which the Tribunal by this Decision orders to be disclosed, and referenced in the Council’s witness evidence – appears to indicate that it was not to be the final report on the matter, and that the Author envisaged a further report being prepared for publication.

The Terms of Reference which the Tribunal has seen refer both to a “draft report” and a “final report” being prepared, with the latter being “suitable for publication without needing to be amended or redacted”.

If the Report is the only report or document which was produced for the Partnership in relation to the Review, it remains unclear to the Tribunal, based on the evidence presented, why that would be.