Tuesday, 17 November 2009

Mr Jarman

Dear Mr Jarman

FREEDOM OF INFORMATION REQUEST

An independent FOI Appeals Panel met on 12^th November 2009 to consider your request. Your request was received as follows:

I note that the Chief Constable of Cambridgeshire, in a letter that was published in the July issue of the Cambridgeshire NARPO Branch Newsletter, stated, 'Further, I have sought and received advice about Home Office Guidance that NARPO had advised allows discretion, and have been told very clear that it is mandatory.'

I request that you provide me with a copy of any document that relates to this exchange. That is, any letter, email or any other document that was sent by the Chief Constable seeking advice as stated, and any letter email or any other document that contains the advice she was provided.

If the transaction took place by telephone then I ask that you provide me with the name of the organisation that she sought advice from, and the time and date of the telephone call. I appreciate that the Data Protection Act might prevent you from naming the individual that she may have spoken to, but ask that you provide details of that person's job title and department.

The Panel has considered your application and have noted the decision made by the Information Access Office (IAO) on 2 September 2009, which refused to release information by virtue of the following exemption:

S42(1) Legal Profession Privilege

Having given due consideration to your request for this decision to be reconsidered, the Panel reached the following decisions in respect of your appeal.

You state that you already know what the advice was and that you do not believe that there is any overriding public interest for the Constabulary not to reveal the advice given to the Chief Constable. You also state that you do not consider there to be any overriding public interest for that advice not to be disclose. The Panel does not accept your argument on this point, and believe that the public interest is better served by continuing to protect properly sought legal advice.

In your next paragraph you give the view that the Chief Constable's belief that the guidance is mandatory is contrary to the established view and that the Home Office also declares that it is not mandatory. Since the Panel has not been provided with evidence of this established view and as the Panel has been made fully aware of the advice, we cannot support your argument in this regard.

You then go on to suggest that the public interest is not merely academic and that the recipients of the injury awards have an expectation or right to have their pensions properly administered and the Panel fully support this view. However, we disagree that the release of the legal advice would alter the basis upon which these pensions are administered. The Panel would remind the applicant that the Public Interest of the community who supports the payment of these pensions also has the expectation that their money will be spent appropriately.

Following on from this point, you suggest that withholding the advice could place the Chief Constable under suspicion of acting inappropriately and not being openly accountable. Again, the Panel reject that this could conceivably be the case. The Chief Constable's actions are scrutinised by a number of professional bodies including Cambridgeshire Police Authority and HMIC and is therefore fully accountable.

The next section of your appeal document challenges the Public Interest Test applied to the exemption. Since S42 is a `qualified, class-based' exemption, there is no requirement to demonstrate any prejudice or harm which may result from the release of the information. While the Appeal Panel considered your arguments carefully, it supports the view that there remains a very substantial public interest in maintaining the confidentiality of legal professionally privileged material and that it is only in `exceptional circumstances' that this will be outweighed by public interest in disclosure. The Panel does not consider that such circumstances exist presently and thus reject your argument.

Please find attached a copy of the complaints procedure should you wish to complain to the Information Commissioner.

Yours sincerely

Niki Howard

Director of Resources (ACPO)