Des Moore v The Information Commissioner

This is an appeal brought by the Appellant under section 57 of the Freedom of Information Act 2000 (‘FOIA’) against the Information Commissioner’s decision notice IC-311244-F5R4.

The Appellant had requested disclosure of information concerning corruption-related intelligence from West Mercia Police (‘WMP’). WMP refused to provide the information sought. This appeal concerns whether the Commissioner was correct to conclude the information sought was exempt from disclosure under section 31(1) FOIA on the grounds that its disclosure would, or would be likely to, prejudice: (a) the prevention or detection of crime and/or; (b) the apprehension or prosecution of offenders.

The parties consented to the matter being determined without a hearing. The Tribunal was satisfied it could properly determine the issues without a hearing. The Tribunal considered Barrett v ICO [2024] UKUT 107 (AAC) but was satisfied that the Appellant was not disadvantaged by not having received a gist of the closed material in this appeal. The closed material was short and limited to the information in dispute.

On 16 February 2024 the Appellant made a request for information to WMP in the following terms:

“On page 145 of 'An inspection of vetting, misconduct, and misogyny in the police service' published by HMICFRS it states:

"The Counter-Corruption (Intelligence) APP lists 12 categories of corruption-related intelligence. It is good practice for forces to use these categories when recording intelligence. All forces should do this consistently to help them understand the threats they face."

The categories are listed on page 146:

"• infiltration;

• disclosure of information;

• perverting the course of justice;

• sexual misconduct;

• controlled drug use and supply;

• theft and fraud;

• misusing force systems;

• abuse of authority;

• inappropriate association;

• vulnerability;

• commit, incite, aid, and abet, or assist an offender in the commission of, a crime; and • other [corruption-related intelligence not categorised elsewhere]."

1.

For the year 2022/23, please provide the figures recorded in each of the 12 categories.

2.

If you do not use these categories, please provide details of the categories you use and related figures for 2022/23.”

WMP responded on 20 March 2024. It confirmed that it used the categories identified in the HMICFRS report but refused to disclose the requested figures. The force relied on sections 31(1)(a) and (b) FOIA (law enforcement) and asserted that disclosure would risk revealing its counter-corruption intelligence picture and could assist those seeking to engage in corrupt or criminal activity. WMP also relied on section 23(5) FOIA in order to neither confirm nor deny whether it held any further relevant information.

On 9 April 2024, the Appellant revised his request. He amended only the relevant financial year, substituting 2020/21 for 2022/23. WMP replied on 25 April 2024. In that response, it neither confirmed nor denied whether it held the requested information and relied on section 30(3) FOIA (investigations and proceedings conducted by public authorities). WMP stated that confirmation or denial would prejudice investigations and undermine the administration of justice.

The Appellant requested an internal review on 1 May 2024. WMP issued an initial internal review response on 17 May 2024, but that response addressed the original rather than the revised request. The Appellant wrote again on 22 May 2024, pointing out that WMP had reviewed the wrong request. WMP then issued a fresh internal review outcome on 29 May 2024. It confirmed that it held the requested statistical information but refused to disclose it under sections 31(1)(a) and (b) FOIA. The internal review concluded that the public interest favoured non-disclosure.

On 4 June 2024, the Appellant submitted a complaint to the Information Commissioner under section 50 FOIA, challenging WMP’s refusal to disclose the information.

On 20 September 2024, WMP provided submissions to the Commissioner. Those submissions included that disclosure of aggregated statistical data would still permit inferences to be drawn about the force’s counter-corruption intelligence picture and would therefore be likely to prejudice law enforcement functions.

The Commissioner issued a Decision Notice on 21 October 2024. In that notice, the Commissioner held that WMP had correctly relied on sections 31(1)(a) and (b) FOIA. He concluded that disclosure of the requested information would be likely to prejudice the prevention or detection of crime and the apprehension or prosecution of offenders, and that the public interest in maintaining the exemption outweighed the public interest in disclosure. He therefore required no steps to be taken by WMP.

The Commissioner did not address section 23(5) on the grounds that it did not apply to information held within the scope of the Appellant’s request, which he said was for very specific information.

Section 1(1)(b) of FOIA provides for a general right of access to information held by public authorities. The right is subject to certain exemptions. In this case the effect of the exemption is explained in section 2(2) of FOIA:

Part II of FOIA includes the provision that the Commissioner considered applied in this case, section 31(1)(a) and (b):

Section 31 is not in the exhaustive list of absolute exemptions set out in section 2(3) FOIA and therefore the public interest test set out at section 2(2)(b) applies. The public interest in maintaining the exemption must outweigh the public interest in disclosing the information.

The Tribunal’s role is set out in section 58 FOIA. We must consider whether the Commissioner’s decision is in accordance with the law. If the notice involved an exercise of discretion by the Commissioner we must consider whether he ought to have exercised it differently. We may review any finding of fact made by the Commissioner.

The issues we need to determine are therefore:

We considered the OPEN and CLOSED bundles. The CLOSED bundle was the subject of a Rule 14 order as disclosure of it would defeat the purpose of the appeal. It solely contained an unredacted copy of WMP’s 20 September 2024 submissions to the Commissioner. Part of the OPEN bundle was illegible but was replaced by the Commissioner following case management directions.

In the grounds of appeal, the Appellant submits that sections 31(1)(a) and (b) FOIA are not engaged, as the threshold for demonstrating prejudice has not been met. Relying on Hogan and Oxford City Council v the Information Commissioner EA/2005/0026 and EA/2005/0030, the Appellant argues that any claimed prejudice must be “real, actual or of substance” and supported by a clear causal link between disclosure and harm.

The Appellant maintains that the information requested is innocuous and argues that the data does not include timeframes or confirm the validity of the reports, which may encompass malicious or false tip-offs. The Appellant contends that the information therefore cannot be used to facilitate corruption or obstruct detection.

The Appellant further argues that the public interest in transparency outweighs any risk of prejudice. The Appellant cites negative findings of various reviews into the activities, culture and perception of the police: the Baroness Casey Review (March 2023), a 2024 academic study highlighting a significant decline in public trust in the police, particularly among women. The Appellant also refers to the IOPC’s “You Have a Voice” campaign and the launch of the national Police Anti-Corruption and Abuse Reporting Service.

In response, the Commissioner states that he remains satisfied with WMP’s submissions. He also states that the assessment of likelihood is often a predictive judgment and it was appropriate for the Commissioner to accept WMP’s submissions considering its expertise and experience.

The Appellant filed a reply highlighting the requirement for the likelihood of prejudice to the relevant interests to be considered, and links to reports concerning various instances of police misconduct.

We consider that disclosure of the information would prejudice or be likely to prejudice both the prevention or detection of crime and the apprehension or prosecution of offenders. Put simply, if WMP were required to release the number of pieces of corruption-related intelligence for each of the twelve categories this could lead to corrupt officers or criminals deducing whether they were at risk of being detected, and how.

The Appellant is correct that Hogan requires we next consider the nature of the prejudice considered. We must be satisfied that there is some causal relationship between the potential disclosure and the prejudice, and that the prejudice is real, substantial or of substance.

Disclosure of any intelligence could benefit a corrupt officer or another person aiding them through creating a mosaic effect of information. For example, if there is a low level of intelligence in a particular category a suspect could know that their corruption is undetected. Conversely, a high amount of intelligence could cause alarm in someone being investigated and cause them to take additional concealment measures or abscond. This would be likely to prejudice the prevention or detection of crime as well as the apprehension or prosecution of offenders.

We find that there would be a causal link between the disclosure and the prejudice because the risk of creating a mosaic effect is particularly acute in the police context. Serving police officers may encounter information useful to them in legitimate workplace tasks, or may be inadvertently given useful information by others. They are therefore more likely than most other individuals to be able to build up a complete picture composed of fragments of information. This could frustrate the interests in the exemptions. We consider that prejudice to be real and of substance.

We must also consider the likelihood of the prejudice occurring. We find that the disclosure would be likely to cause this prejudice. Again, we find that the context of this information being within a single police force increases the likelihood of the prejudice occurring. Police officers are trained to piece small amounts of information together to form a coherent picture.

We therefore consider the exemptions are engaged.

We first consider the public interest in favour of disclosure. The Appellant is correct that there is a strong public interest in holding the police to account and ensuring that individual officers and institutions behave with integrity. We agree that is a very strong factor in favour of disclosure about misconduct by the police. However, we do not agree that is necessarily such a strong factor in favour of disclosure of the specific information in this case.

First and critically, intelligence is not proof by itself that there has been misconduct. It needs to be investigated to establish its veracity. Intelligence may be false. We do not agree that disclosure of statistics about intelligence alone would serve the public interest because for the information to be meaningful the public would need to know other information such as whether the intelligence was credible and how it was investigated. Disclosure of statistics would just tell the public that the police had some information falling within the relevant category, not whether it was credible, useful or accurate. This does not further the public interest in disclosure.

Second, the Appellant has provided some information concerning reports of misconduct at WMP (for example, at B57). However, we do not agree that these support his case because they demonstrate that at least some corrupt officers are being investigated and further action taken. The Appellant states throughout his correspondence that there is an anti-corruption unit at WMP. It is difficult to see what additional public interest would be served by knowing how much intelligence that unit is given.

Third, much of the evidence relied on by the Appellant concerns other police forces, such as the 2023 Casey report which concerns the Metropolitan Police and not WMP. We do not consider that evidence of problems at other forces, however significant, increases the public interest in WMP disclosing the information.

The public interest in maintaining the exemption is strong. It is in the public interest that police forces are not forced to ‘tip off’ corrupt officers by the disclosure of statistical data while they are engaging in corrupt behaviour, to the effect either that they are going undetected or that they are about to be caught. We consider this to be a very weighty public interest indeed. Police officers working on anti-corruption cases must be allowed to get on with their job without fear that the release of statistical information will aid offenders. Moreover, there are other ways police forces like WMP can be held to account for their anti-corruption work. This includes prosecutions (including a trial in open court), police disciplinary proceedings, and the Independent Office for Police Conduct.

Consequently, we find that the public interest in maintaining the exemption outweighs the public interest in disclosing the information. While holding the police to account is in the public interest, this information is of little use to the public in isolation and could hinder investigation and apprehension of corrupt officers and their associates.

We consider the exemptions in section 31(1)(a) and (b) are engaged: disclosure of the information would, or would be likely to, prejudice the prevention or detection of crime; or the apprehension or prosecution of offenders. The public interest favours withholding the information.

The appeal is dismissed.

This OPEN decision includes all points material to our decision. We therefore do not consider it necessary to produce a CLOSED decision.