IN THE FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
(INFORMATION RIGHTS)
Case Nos. EA/2009/57 and 2009/89
ON APPEAL FROM:
Information Commissioner
Decision Notice ref FS50210434 and FS50233972
Dated 24 June and 17 September 2009
Appellant:
David Young
Respondent:
Information Commissioner
On the papers
Date of tribunal meeting:
28 January 2010
Date of decision:
10 February 2010
Before
HH Judge Shanks
Rosalind Tatam
Michael Hake
1
Appeal Numbers: EA/2009/0057 & 0089
Subject area covered:
Personal data s.40
Cases referred to:
Durant v FSA [2003] EWCA Civ 1746
Decision
The appeals are dismissed.
Reasons for Decision
The appeals
1. These appeals, which we have heard together, both relate to requests for
information under the Freedom of Information Act 2000 made by Mr Young against
the police. Both requests arose out of incidents involving him or a member of his
family in which he alleges they were mistreated by officers and where his
complaints have not, in his view, been satisfactorily dealt with.
2. The first request (which is the subject of appeal EA/2009/0057) was made to the
Kent Police by letter dated 11 April 2008 in these terms:
I would like to know of any and all complaints made against the following officers
[names given] during their time with Kent County Constabulary or any other force
they may have previously served with.
Please inform me of all complaints made and not just those that were recorded.
The second (subject of appeal EA/2009/0089) was made to the Hampshire
Constabulary by letter dated 11 December 2008:
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Appeal Numbers: EA/2009/0057 & 0089
[named officer]
Please inform me of any and all complaints made about the above officer during
his time with the police service not just Hampshire Police.
Please include all Recorded Complaints whether they were recorded as
substantiated or not and any complaints that were not recorded but remain on
file.
Please inform me of the nature of each complaint. Please also inform me of any
criminal convictions the officer has and what they were for.
I refer to his time as a Police Constable as well as any higher rank he may have
held…
3. In both cases the police refused to confirm or deny whether they held such
information, relying in effect on the exemption at section 40(5) of the 2000 Act and
in both cases the Information Commissioner upheld their decision and Mr Young
has appealed.
4. The relevant statutory provisions are these:
Data Protection Act 1998
1 (1) In this Act…
“personal data” means data which relate to a living individual who can be
identified … from those data … and includes any expression of opinion about the
individual and any indication of the intentions of … any person … in respect of
the individual…
2 In this Act “sensitive personal data” means personal data consisting of
information as to … the commission or alleged commission by him of any
offence…
Schedule 1
The Data Protection Principles
1 Personal data shall be processed fairly and lawfully and, in particular, shall not
be processed unless
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Appeal Numbers: EA/2009/0057 & 0089
(a)
at least one of the conditions in Schedule 2 is met; and
(b)
in the case of sensitive personal data, at least one of the conditions in
Schedule 3 is also met.
…
Schedule 2
…
6(1) The processing is necessary for the purposes of legitimate interests
pursued by … the third party or parties to whom the data are disclosed, except
where the processing is unwarranted in any particular case by reason of
prejudice to the rights and freedoms or legitimate interests of the data subject.
Freedom of Information Act 2000
Part I
…
1(1) Any person making a request for information to a public authority is entitled-
(a) to be informed in writing by the public authority whether it holds
information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
(2) Subsection (1) has effect subject to … section 2 …
2(1) Where any provision of Part II states that the duty to confirm or deny does
not arise in relation to any information, the effect of the provision is that where
either-
(a) the provision confers absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining
the exclusion of the duty to confirm or deny outweighs the public
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Appeal Numbers: EA/2009/0057 & 0089
interest in disclosing whether the public authority holds the
information,
section 1(1)(a) does not apply.
[Note: section 2(3) deals with absolute exemptions; it states that the following
provisions of Part II (and no others) are to be regarded as conferring absolute
exemptions; section 40(5) is not listed]
…
Part II
…
40…
(5)
The duty to confirm or deny-
…
(b) does not arise in relation to … information if or to the extent that …
(i) the giving to a member of the public of the confirmation or denial that
would have to be given to comply with section 1(1)(a) would (apart from
this Act) contravene any of the data protection principles…
5. In order for the police to rely on section 40(5) in these cases they had to be satisfied
that:
(1) information as to whether they held any details of complaints about the
named officers was the personal data of those officers;
(2) disclosure of that information would contravene a data protection principle;
and
(3) in all the circumstances of the case, the public interest in maintaining the
exclusion of the duty to confirm or deny outweighed the public interest in
disclosing whether the police held details of such complaints.
We shall consider these points in turn.
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Appeal Numbers: EA/2009/0057 & 0089
Personal data
6. In his Notices of Appeal Mr Young appeared to accept that information relating to
complaints against named officers was personal data but in his submissions dated
4 December 2009 at para 24 he states that his position is that “…the information
requested is not personal data as it relates to complaints made by the public about
a public servant”. Although this point was raised very late in the day the Tribunal
considered it.
7. Although we have not been provided with any of the information requested by Mr
Young (and therefore have no idea whether in fact any complaints have been made
against the named officers) we are quite satisfied that the Commissioner was right
to conclude that information as to whether such complaints had been made (or not
made) amounted to the personal data of those officers. Clearly such information is
about identifiable individuals who (we are prepared to assume in the absence of
evidence to the contrary) are still living and it is “biographical in a significant sense”
and focussed on those individuals (to adopt the tests in
Durant v FSA [2003] EWCA
Civ 1746). The fact that the information relates to the public duties of police officers
does not in our view prevent it being “personal data” (though this may be a relevant
factor in relation to the other issues that arise in this case).
Contravention of a data protection principle
8. The first data protection principle is contravened if personal data is processed
(which includes disclosed) in circumstances where one of the conditions in
Schedule 2 of the 1998 Act is not met. The only condition in Schedule 2 which is a
possible candidate in this case is condition 6(1); in order to satisfy that condition,
the disclosure of information as to whether details of complaints about the named
officers was held had to be:
(1) “necessary for the purposes of legitimate interests pursued by” Mr Young
and/or the public at large; and
(2) not “unwarranted by reason of prejudice to the rights and freedoms or
legitimate interests” of the officers.
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Appeal Numbers: EA/2009/0057 & 0089
9. Mr Young’s case is that disclosure is necessary and warranted in this case; his
reasons in summary are as follows:
(1) the police are public servants who have a great deal of power over citizens;
(2) that power can be abused;
(3) it is being increasingly abused;
(4) officers must be accountable for such abuse;
(5) the existing complaints and disciplinary procedures are ineffective and
biased in favour of the officer being complained about;
(6) the public therefore need to know the record of complaints about individual
officers;
(7) in particular, details of complaints made against a particular officer will allow
a member of the public who wishes to bring legal proceedings against him to
obtain evidence from other complainants to support his case;
(8) because of the public nature of their jobs officers should reasonably expect
that complaints made against them should be subject to public disclosure;
(9) officers who do not abuse their power have nothing to fear from disclosure
since only decent law-abiding citizens who really have been treated badly
make complaints against the police.
10. Points (1), (2) and (4) are obviously right. The Tribunal clearly cannot make any
definitive finding about point (3) on the basis of a few newspaper articles and we
decline to do so. Nor on the evidence we have seen can we be satisfied that point
(5) is correct; all we can say is that there is a comprehensive complaints system in
place instituted by Parliament (most recently by the Police Reform Act 2002)
supervised by the Independent Police Complaints Commission and that a complaint
should lead in appropriate cases to disciplinary action or criminal proceedings
against an officer with appropriate sanctions and publicity; we also note that it is
open to individual citizens who are not content with the outcome of a complaint to
bring legal proceedings against the officer concerned or the police force or even the
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Appeal Numbers: EA/2009/0057 & 0089
IPCC in relation thereto. As to points (6) and (7), we consider that the fact that an
officer has or has not had complaints made against him is of little relevance to the
question whether or not he has in fact abused his power, particularly given that any
complaint of substance should lead to disciplinary or criminal proceedings, and it is
unlikely that previous complaints which have not led to successful proceedings
against the officer would form the subject of admissible evidence in relation to a
subsequent complaint. We are not therefore satisfied that there is a necessity for
Mr Young or the public to know whether the police hold details of complaints
against particular officers for any legitimate purpose.
11. That finding alone means that condition 6(1) would not be met and the first data
protection principle would be contravened. But in any event we consider that, even
if disclosure of the information was “necessary”, it would have been “unwarranted”.
In this connection we note the provisions of the Police Reform Act 2002 and the
Police (Complaints and Misconduct) Regulations 2004 (SI 2004/643) in relation to
publicity: there are express provisions that a complainant and other directly
interested persons are to be kept informed about specific complaints1 (these
provisions are themselves subject to exceptions, including if non-disclosure is
necessary in the public interest)2 but, apart from a very general power in the IPCC
to publish information for general purposes (which do not include those relied on by
Mr Young)3, there is no provision allowing publication of information about
complaints. This, combined with our clear view that Mr Young’s point (9) is just not
consistent with our own experience of the world, leads us to the firm view that,
contrary to his point (8), officers can in general reasonably expect that the mere
existence of complaints about them will not be the subject of public disclosure.
Such disclosure would therefore prejudice their rights and/or legitimate interests
and we consider that such prejudice would be sufficient to make disclosure
“unwarranted” in these cases.
12. We therefore agree with the Commissioner that compliance by the police with
section 1(1)(a) of the 2000 Act would (apart from the Act itself) contravene the first
1 See sections 20 and 21 of the 2002 Act
2 See regulation 12 of the 2004 Regulations
3 See regulation 25 of the 2004 Regulations
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Appeal Numbers: EA/2009/0057 & 0089
data protection principle and that section 40(5)(b)(i) therefore applies to Mr Young’s
requests.
Public interest
13. The public interest balance was not considered by the Commissioner but strictly it
ought to be considered in cases where section 40(5) is relied on.4 Mr Young’s case
is that there is a strong public interest in the disclosure of the information we are
concerned with for the reasons we outline in paragraph 9 above. In the light of all
the considerations we have set out in paragraphs 10 and 11 above we are of the
view that the public interest in maintaining the exclusion of the duty to confirm or
deny in this case very substantially outweighed the public interest in the police
disclosing whether they held information of the description sought by Mr Young.
The request for criminal convictions
14. We note that in his second request for information Mr Young also asked for details
of criminal convictions of a named officer. Although this request does not appear to
have been considered separately, we are satisfied that information as to whether or
not the officer had criminal convictions was itself “sensitive personal data” in
accordance with the definitions in sections 1 and 2 of the 1998 Act which we have
set out above. Disclosure of that information would therefore have been a
contravention of the first data protection principle unless one of the conditions in
Schedule 3 of the 1998 Act would have been met (which was clearly not the case).
In those circumstances section 40(5)(b)(i) would have applied to exclude the duty to
confirm or deny provided that the public interest balance favoured maintaining that
exclusion. Given the clear legislative policy in the Data Protection Act 1998 that
sensitive personal data should only be disclosed if one of the conditions in
Schedule 3 is met we are satisfied that the public interest balance favoured
maintaining the exclusion.
Conclusion
4 The omission of section 40(5) from the list in section 2(3) may well have been a legislative oversight but the Tribunal
can see no way round it.
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Appeal Numbers: EA/2009/0057 & 0089
15. It follows that the police were indeed entitled to rely on section 40(5) in this case
and were not obliged to comply with section 1(1)(a) or supply Mr Young with the
information he sought and that his appeal must therefore be dismissed
16. Our decision is unanimous.
17. Finally we note that although this case started as appeal to the Information Tribunal,
by virtue of The Transfer of Tribunal Functions Order 2010 (and in particular articles
2 and 3 and paragraph 2 of Schedule 5) the Tribunal which has decided Mr Young’s
appeal is now constituted as a First-tier Tribunal.
HH Judge Shanks
Dated 10 February 2010
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