Rabbi Gabriel Kanter-Webber v Information Commissioner & Anor

This Appeal dated 22 December 2023 and made by Rabbi Gabriel Kanter-Webber (the “Appellant”) arises following a request for information (the “Request”) made by the Appellant to the Metropolitan Police Service (“MPS”) on 6 June 2023 in the following terms:

“Please can you provide me with an electronic copy of the transcript of the misconduct hearing into PC Thomas (the outcome of which was given on 28 May 2023). If there is no transcript, please provide the audio recording instead.”

On 9 June 2023, the Metropolitan Police Service issued its initial response. The request was refused by way of a refusal notice relying on section 40(2) of the Freedom of Information Act 2000 (“FOIA”), on the basis that the requested information constituted third party personal data. The response did not clearly distinguish between the request for a transcript and the request for an audio recording, nor did it clearly acknowledge whether the audio recording was held by the public authority.

On 12 June 2023, the Appellant requested an internal review of that decision. In doing so, he contended that section 40 FOIA was not properly engaged, emphasising that the misconduct proceedings had been held in public and relying on recent Tribunal authority concerning disclosure of material arising from public disciplinary hearings (Kanter-Webber v Information Commissioner and the Chief Constable of Cambridgeshire Constabulary [2023] 441 (GRC)).

The outcome of the internal review was communicated to the Appellant on 17 July 2023. In that response, the Metropolitan Police Service stated that it did not hold the requested information. MPS indicated that no transcript existed and suggested that the recording was held by an external contractor and transcribed only when necessary. At that stage, MPS did not clearly acknowledge that it held the audio recording itself, nor did it maintain or restate reliance on section 40 FOIA or any other exemption. That position was later clarified and corrected during the subsequent Information Commissioner’s (“IC”) investigation.

On 19 July 2023, dissatisfied with the internal review outcome, the Appellant submitted a complaint to the IC under section 50 FOIA. The complaint focused on the refusal to disclose the audio recording, the inconsistency in the MPS’ position as to whether the information was held, and the Appellant’s continuing contention that disclosure was required having regard to the public nature of the proceedings.

During the IC’s investigation, which took place in August and September 2023, the MPS clarified its position. It accepted that it did hold a copy of the audio recording of the misconduct hearing and acknowledged that the earlier suggestion that the information was not held had been inaccurate or incomplete. The MPS advanced reliance on two exemptions at that stage: section 32(1)(c) FOIA, on the basis that the recording was a court record, and section 40(2) FOIA, on the basis that it constituted third party personal data.

On 20 September 2023, the MPS provided an updated response to both the IC and the Appellant. It confirmed that the audio recording was held but maintained that it was exempt from disclosure under sections 32 and 40 FOIA.

The IC issued Decision Notice IC-246277-R1P1 on 20 December 2023. The Commissioner concluded that the MPS was entitled to rely on section 32(1)(c) FOIA, finding that the police misconduct panel was a “court” exercising the judicial power of the State and that the audio recording constituted a court record. As section 32 is an absolute exemption, the Commissioner did not determine whether section 40 FOIA applied.

The Appellant subsequently appealed that Decision Notice to the First tier Tribunal. While the appeal was pending, binding authority was issued by the Upper Tribunal in the case of Kanter-Webber v Information Commissioner and the Chief Constable of Hampshire Constabulary [2025] UKUT 171 (AAC) determining that police misconduct panels do not constitute courts for the purposes of section 32 FOIA. As a result, section 32 ceased to be applicable in this appeal, and the dispute crystallised around section 40 FOIA, which had not been substantively determined by the Commissioner in the original Decision Notice. The appeal therefore proceeds on the basis of what ought properly to have been decided had section 32 not been relied upon.

The requested information consists of an audio recording running to several hours, capturing the evidence, submissions, and exchanges during a police misconduct hearing.

It is accepted by all parties that no written transcript exists and that the recording is a verbatim record of what was said during the hearing.

The Tribunal accepts that the recording contains personal data relating to:

The Tribunal further accepts that this personal data is interwoven throughout the recording and that meaningful anonymisation or redaction of the audio as a whole would not be practicable.

The Tribunal was provided with a 320-page open bundle. The Tribunal was also provided with a closed bundle consisting of an index page indicating that an audio recording of the misconduct hearing existed, together with a 17-page unredacted outcome report.

The Tribunal did not have the audio recording and accordingly did not listen to it. The Tribunal consider that determination under s40 FOIA did not depend on the specific content of what was said during the hearing, but on the nature and consequences of disclosure under FOIA. There was no dispute between the parties as to the character of the recording, namely that it constituted a verbatim record containing intertwined personal data of multiple identifiable individuals. The issues for decision concerned whether disclosure of such a recording to the world at large would be necessary, lawful, and fair under the data protection principles. The Tribunal decided that those issues could be determined on the basis of the agreed description of the material, the statutory framework, and the nature of FOIA disclosure, without it being necessary or proportionate for the Tribunal to listen to the audio itself, which is substantial in length.

The Appellant advances a single, coherent case grounded in the importance of transparency and accountability in police disciplinary proceedings.

The Appellant submits that the starting point must be the fact that the misconduct hearing was conducted in public, pursuant to statute, without reporting restrictions. It is said to follow that what was said and done in that hearing was, at the time, open to public observation and reporting, and that disclosure of the audio recording would therefore not involve the revelation of private or confidential material.

The Appellant places significant weight on the principle of transparency in policing, submitting that public confidence in the police depends upon the ability of the public to scrutinise not merely the outcome of misconduct hearings, but the processes by which those outcomes are reached. In particular, the Appellant argues that public confidence is undermined where decision makers retain control over the narrative by publishing only a summarised version of proceedings.

The Appellant contends that the published outcome report, however detailed, cannot substitute for access to the verbatim record. It is said that credibility findings, which featured prominently in the outcome report, cannot properly be evaluated without an opportunity to assess the underlying evidence, including the manner in which witnesses answered questions, any hesitation or evasion, and the extent to which assertions were tested.

The Appellant further submits that disclosure of the audio recording is reasonably necessary to meet the legitimate interest in transparency, because it would allow informed scrutiny of whether the panel’s findings were supported by the evidence given, rather than merely asserted in the outcome report.

In addressing data protection concerns, the Appellant argues that those who participated in the hearing, particularly serving police officers, had a reduced expectation of privacy. The Appellant submits that police officers, as publicly funded office holders subject to statutory discipline, cannot reasonably expect that evidence they give in a public misconduct hearing will remain inaccessible to the public once the hearing has concluded.

The Appellant also relies on the fact that the outcome report was published for a limited period (28 days) and contained the names of officers and witnesses. It is said that this prior publication demonstrates that disclosure of related material would not represent a novel or disproportionate intrusion.

Finally, the Appellant submits that concerns about misuse, embarrassment, or adverse commentary are not legitimate grounds for withholding disclosure under FOIA, and that the statutory right of access must not be curtailed merely because disclosure might prove uncomfortable for those involved.

The Respondents resist the appeal on the basis that disclosure of the audio recording would involve unlawful and unfair processing of personal data and is therefore exempt from disclosure under section 40(2) FOIA.

The Respondents accept, and do not dispute, that there is a legitimate public interest in transparency and accountability in police disciplinary proceedings. They also accept that disclosure of the audio recording would provide more information than is contained in the published outcome report.

However, the Respondents submit that the Appellant’s case fails properly to address the requirement of necessity under Article 6(1)(f) UK GDPR. They argue that FOIA does not mandate maximal disclosure, and that the existence of a legitimate interest does not of itself justify disclosure where that interest has already been met through less intrusive means.

The Respondents emphasise that the misconduct hearing was public and that a detailed outcome report was published in accordance with the statutory scheme. They submit that this combination achieves a substantial degree of transparency and enables the public to understand both the nature of the allegations and the reasons for the outcome.

The Respondents further submit that disclosure of the audio recording would be qualitatively different from attendance at a public hearing or reading an outcome report. They stress that FOIA disclosure is disclosure to the world at large, without restriction as to audience, purpose, or duration, and that this distinction is central to the assessment of fairness under data protection law.

In relation to the expectations of those involved in the hearing, the Respondents submit that participants could reasonably expect contemporaneous public observation and reporting, but not the permanent and unrestricted release of an official audio record capable of indefinite replay and redistribution.

The Respondents also draw attention to the presence of third party personal data, including evidence given by officers who were not the subject of the misconduct proceedings. They submit that the personal data of those individuals is inseparable from the recording as a whole and that disclosure would disproportionately interfere with their rights and freedoms.

Finally, the Respondents submit that disclosure of the audio recording would engage considerations of fairness and proportionality for those required to participate as witnesses in misconduct proceedings. They contend that witnesses could not reasonably expect their live evidence, including their manner of delivery and responses under questioning, to be subject to permanent and unrestricted dissemination under FOIA, and that such disclosure would be liable to affect the candour with which evidence is given.

The relevant provisions of FOIA are as follows:

Personal information.

Terms relating to the processing of personal data

The Tribunal accepts that there is a legitimate public interest in transparency and accountability in police disciplinary proceedings. Policing is a publicly funded function that depends upon public confidence, and there is a clear and recognised interest in ensuring that allegations of misconduct are properly investigated and adjudicated.

The Tribunal does not underestimate that interest. The Appellant’s submissions on this point are serious and principled. They reflect a broader public concern about police standards and the effectiveness of disciplinary mechanisms.

The appeal does not fail at this stage of the analysis.

The Tribunal must next consider whether disclosure of the audio recording itself is reasonably necessary to meet the identified legitimate interest.

In addressing this question, the Tribunal has regard to the circumstances as they existed at the time of the request. In particular that:

The Tribunal has considered the Parties’ submissions with care. It recognises the force of the Appellant’s concern that summaries, however detailed, inevitably involve selection and evaluation by the decision maker.

However, the Tribunal is not persuaded that, on the facts of this case, disclosure of the audio recording is reasonably necessary to meet the legitimate interest relied upon.

Several considerations are central to that conclusion. First, the Tribunal places significant weight on the nature and quality of the published outcome report. This was not a cursory or formulaic document. It set out the allegations, summarised the evidence, explained why certain witnesses were preferred or discounted, and articulated the reasoning leading to the outcome. The report did not shy away from adverse credibility findings, nor did it seek to sanitise the evidential picture.

Secondly, the Tribunal considers that the legitimate interest in transparency is directed primarily towards enabling the public to understand how accountability has been exercised, rather than towards enabling independent, line-by-line re-evaluation of witness testimony by members of the public at large.

The Tribunal does not accept that Article 6(1)(f) requires disclosure wherever it is theoretically possible that more information might permit a deeper or alternative analysis of the evidential material.

Thirdly, the Tribunal is not persuaded that such access would materially enhance public comprehension of the panel’s reasoning as opposed to inviting speculative or selective reinterpretation.

Fourthly, the Tribunal accepts the Respondents’ submission that FOIA disclosure must be assessed in its full legal context. Disclosure would not be limited to interested observers, journalists, or those with contextual knowledge, but would be unrestricted, permanent, and capable of indefinite reuse. The necessity of such disclosure must therefore be assessed at that scale.

Importantly, the Tribunal’s conclusion on necessity is fact specific. The Tribunal does not hold that audio recordings of police disciplinary hearings can never be necessary to meet a legitimate interest. There may be cases where the published material is so limited, or the public interest so acute, that disclosure of a verbatim record is required.

However, in the present case, where a substantial degree of transparency was achieved through a public hearing and a detailed outcome report, the Tribunal is not satisfied that disclosure of the audio recording itself is reasonably necessary.

For those reasons, the Tribunal concludes that the Appellant has not established the necessity limb of Article 6(1)(f) and that disclosure of the audio recording is not necessary to meet the legitimate interest in transparency and accountability.

Even if disclosure were necessary, the Tribunal would in any event conclude that disclosure would be unfair, and that the legitimate interest is overridden by the rights and freedoms of the data subjects identifiable within the audio recording.

A central distinction must be drawn between:

Participants in public disciplinary proceedings may reasonably expect that what they say can be heard by those present and summarised in a published outcome. They cannot fairly be treated as having accepted that their voices, hesitations, uncertainties, or exchanges under questioning will be capable of indefinite replay, extraction and redistribution, divorced from the procedural context in which they occurred.

This point applies with particular force to witnesses and officers whose conduct was not the subject of the proceedings, but whose credibility was assessed as part of the evidential process. The outcome report already exposes those witnesses to professional scrutiny. Disclosure of the audio recording would expose them to a materially greater level of intrusion.

The Tribunal also gives weight to the systemic implications of routine disclosure of audio recordings of misconduct hearings under FOIA. Such disclosure would be likely to alter expectations across the disciplinary system and risk undermining the candour and effectiveness of future investigations. Witnesses may become more guarded; evidence may become less frank; and the integrity of the disciplinary process may be weakened.

The Tribunal also takes account of the impact that disclosure of the audio recording would have on those required to participate as witnesses in misconduct hearings. In particular, the Tribunal accepts that witnesses could not reasonably expect their live evidence, including their manner of delivery and responses under questioning, to be subject to permanent and unrestricted disclosure under FOIA. The prospect of such disclosure is a relevant consideration when assessing the proportionality of disclosure, as it bears on the candour with which evidence may be given and the fairness of exposing witnesses’ live contributions to enduring public scrutiny.

Against this must be set the incremental benefit of disclosure. In the present case, that benefit is limited, given the extent of transparency already achieved.

The Tribunal therefore concludes that disclosure would involve a disproportionate interference with the rights and freedoms of the data subjects and would be unfair within the meaning of Article 5(1)(a) UK GDPR.

Accordingly, for the reasons set out in this decision, the Appellant’s appeal is dismissed.