RESOURCES DIRECTORATE
Corporate Support and Information Services - Data Protection
Police Headquarters, Saunders Lane, Hutton, Preston PR4 5SB

Tel: 01772 413327 Fax: 01772 412123 Email: [Lancashire Constabulary request email]


Arhur Peasgill

Via: www.whatdotheyknow.com

17 December 2009

Dear Mr Peasgill

FREEDOM OF INFORMATION APPLICATION REFERENCE NO: 1585/09

I refer to your request for an internal review to be undertaken on the response previously provided to your FOI request, and my holding email of the 8^th December, 2009.

Firstly, may I apologise that I have not been able to respond to you before now.

Your appeal was against the refusal notice issued under Section 17(1) of the Freedom of Information Act, set out in Bryony Hopkinson's letter of the 11^th November, to provide details of the Constabulary's Chief Legal Advisors' diary, duties, meetings and places that she worked on 11, 12^, 13, 14, and 15 May, 2009.

An Appeals Panel has now considered your appeal.

Firstly, the Panel can confirm that, in accordance with Section 1(1)(a) of the Freedom of Information Act, Lancashire Constabulary does hold information relating to the request.

The Panel has further considered your arguments set out within your internal review request, in relation to the exemptions previously cited:

“Section 30.

I have asked for no information that will impact upon nor prejudice

any criminal investigations be this either possible or likely. Nor

did I intend to do so. "Likely to prejudice" an investigation is

also a stringent legal test. The exemption cannot be applied

lawfully just because the information requested is potentially

involved in a police investigation and "might be a risk to" the

investigation. Please supply the information as requested.

Section 42.

I have only requested general duties, venues of meetings and places

of work on 6 (now 5) specific days. These meetings etc could

possibly be, for example, at police HQ, Lancashire County Hall,

Preston City Council, the Old Bailey, the Supreme Court or other.

Such public buildings have numerous and widespread rooms. Therefore

to request only very general venues of meetings etc from a public

servant as funded by the taxpayer cannot even be deemed to likely

breach legal professional privilege which is only involved in the

personal client/solicitor relationship in any event. You have also

indicated that to release such information could only potentially

breach the principle which is insufficient under the exemption.

Further you have clearly already confirmed/indicated who Miss

Noone's clients are namely the Chief Officer and the force and that

would not serve to prejudice anything. For example I would have to

actually be present at the meeting or the whole content of the

meeting would have to be disclosed to prejudice legal professional

privilege.

Section 40.

I have clearly only requested information directly relevant to Miss

Noone's role as a publicly funded public servant directly related

to Miss Noone's role as that public servant. I am not interested in

any of her personal data. If Ms Noone wishes to moonlight or

otherwise outside of the remit of her role as a public servant that

is none of my business and I'm not interested. Further if Ms Noone

wishes to attend doctor's appointments, hairdressing appointments,

school functions, go shopping or similar during work or taxpayer

funded time then that is also none of my business and I'm not

interested. I am only interested in public data as generated in her

role as a publicly funded public servant. Your use of this

exemption is taking credulity too far.”

Having reviewed the matter, the Panel feel that the following exemptions apply to the

Information requested:

Section 40 (2) - Personal Information

Section 42 (1) - Legal Professional Privilege

These exemptions are cited on the following factors previously highlighted, as below:

Factors Favouring Disclosure:

Release of this information would make the Constabulary more accountable to the public on how funding was spent in the area of legal support and action. It would also make the legal department, and Miss Noone herself, more accountable for how her time within the role as the Head of the Legal Department is utilised. This information could also assist in increasing public understanding of the role of the Legal Services Department within the Constabulary.

Factors Favouring Non Disclosure

Section 42(1): The client - legal professional privilege is a principle enshrined in history which must be respected. The release of information relating to meetings between a solicitor and their clients has the potential to breach this principle, and could undermine the relationship between solicitor and client.

Section 40(2): Disclosure of the details of Miss Noone's schedule over a whole week, as has been requested, could potentially reveal sensitive personal information which is protected by the Data Protection Act 1998. The Constabulary offers a range of flexible working arrangements to staff members in order to promote a healthy work - life balance. Examples of this include a flexi-time scheme and condensed working arrangements. The Constabulary is also understanding towards staff members who need to attend medical appointments during `normal' working hours. As such, disclosure of Miss Noone's schedule at such a high level of detail could easily reveal information relating to her private, personal and home life, which would be in breach of the principles of the Data Protection Act.

In addition, the Panel would add that the personal data of another person is exempt under FOIA section 40 (2) if disclosure would breach one of the DPA principles. This basically entails looking at whether disclosure is fair and balancing the public interest test against the interest of the individual requesting the information. Whilst necessary to consider the issue of transparency, accountability, it is necessary to consider the possible harm in the release, and interference with the individual's privacy. As outlined below, it is felt that it would be unfair to release the information requested, in light of general concerns expressed by the individual about whom information is sought.

The Panel feels that the following exemption also applies:

Section 38 - Health and Safety - information which would or would be likely to :

(b) endanger the safety of any individual

This is a qualified and prejudice based exemption. As such it is necessary to consider the evidence of harm and the public interest test;

Factors Favouring Disclosure

The factors favouring disclosure are those which have been outlined above, namely relating to accountability of a senior position in a public facing role, openness and transparency.

Factors Favouring Non Disclosure

The ICOs Guidance states that for the exemption to apply there must be evidence of a significant risk of endangerment to the physical or mental health or the safety of any individual. Having liaised with the Head of Legal Services, there have been occasions in the past where the individual has felt at risk from individuals. When releasing information under the Freedom of Information Act, the information is effectively released in to the public domain and not just to the applicant. The release of the diary commitments and locations of attendance from the time period in question to the 'world at large' could possibly enable commitment future commitments to be identified and a risk to the individual from persons who may wish to cause harm.

Balancing Test:

On balance, the Panel feels that the factors favouring non-disclosure outweigh those favouring disclosure and, therefore, the request is again refused. The Panel supports the view that the release of the specific staff member's personal diary or work schedule does not provide any significant benefit to the public which could not be provided by disclosing a summarised account of how their time is generally divided between different work tasks. However, generally to disclose this information may run the potential risk of compromising police investigations or breaching client - solicitor confidentiality principles.

Should you still be dissatisfied with my response, please do not hesitate to write to me at the address above. Of course, you have the right to complain further to the Information Commissioner should you still be dissatisfied. For completeness, the address is as follows:

Information Commissioner's Office, Wycliffe House, Water Lane Wilmslow, Cheshire, SK9 5AF

Tel: 0845 630 6060

Yours sincerely

Carl Melling

Data Protection and Information Officer