Home Office Guidance

John Jarman made this Freedom of Information request to Cambridgeshire Constabulary

The request was refused by Cambridgeshire Constabulary.

From: John Jarman

3 August 2009

Dear Cambridgeshire Constabulary,

I am making a request under the terms of the Freedom of Information
Act.

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.

I trust that you will note the requirement of Section 16 of the FOI
Act and that you will assist me to the best of your ability. Please
contact me if you need any clarification of my request.

As this is a simple request I do hope that you will not use all of
the 20 working days allowed by the Act before responding. I trust
that you will forgive me for reminding you that Section 10 of the
FOI Act requires you to respond '. . . promptly and in any event
not later than the twentieth working day following the date of
receipt.

Yours faithfully,

John Jarman

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Cambridgeshire Constabulary

4 August 2009

Dear John

FREEDOM OF INFORMATION REQUEST REFERENCE NO: 0411/09

We acknowledge receipt of your Freedom of Information (FOI) request which
was received by Cambridgeshire Constabulary on 04/08/09.

Your request will now be considered in accordance with the Freedom of
Information Act 2000. You will receive a response within the statutory
timescale of twenty working days as defined by the Act. In some
circumstances, we may be unable to achieve this deadline. If this is the
case, you will be informed and given a revised time-scale at the earliest
opportunity.

If we require any further clarification regarding this request, you will be
notified.

We would advise you that the nature of certain requests may involve payment
of a fee. If this is the case, you will be notified.

Should you have any further enquiries concerning this matter, please
telephone on 0345 456 456 4 asking for the Information Access Office or
email [Cambridgeshire Constabulary request email]

Regards

Donna Anderson
Information Access Office
Cambridgeshire Constabulary

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Cambridgeshire Constabulary

1 September 2009

Attachment Complaint Rights.pdf
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Dear John

FREEDOM OF INFORMATION REQUEST REFERENCE NO: 0411/2009

I write in connection with your request for information which was received
by Cambridgeshire Constabulary on 3rd August 2009.

I regret to inform you that Cambridgeshire Constabulary have not been able
to complete its response to your request by the date originally stated.

The FOI Act obliges us to respond to requests promptly and in any case no
later than 20 working days after receiving your request. We must consider
firstly whether we can comply with Section 1 (1)(a) of the Act, which is
our duty to confirm or deny whether the information requested is held and
secondly we must comply with section 1(1)(b), which is the provision of
such information. However, when a qualified exemption applies either to the
confirmation or denial or the information provision and a public interest
test is engaged, the Act allows the time for response to be longer than 20
working days, if the balance of such public interest is undermined.

In this case we have not yet reached a decision on where the balance of the
public interest lies in respect of either of the above obligations. We
estimate that it will take an additional 10 working days to take a decision
on where this balance lies. Therefore, we plan to let you have a response
by 16th September 2009 . If it appears that it will take longer than this
to reach a conclusion you will be kept informed.

The specific exemption which applies in relation to your request is S42
Legal Professional Privilege.

I can assure you that every effort will be made to ensure an appropriate
response will be made within this new timescale.

Your attention is drawn to the attached sheet which details your right of
complaint.

(See attached file: Complaint Rights.pdf)

May I apologise for any inconvenience caused. Should you wish to discuss
this matter please write or contact the Information Access Office on
telephone number 03454564564 Ext 8164 quoting the reference number above.

Yours sincerely
David Price
Information Access Office
Cambridgeshire Constabulary

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Cambridgeshire Constabulary

2 September 2009

Attachment Complaint Rights.pdf
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Dear John

FREEDOM OF INFORMATION REQUEST REFERENCE NO: 0411/2009?

In reply to your request for information under the Freedom of Information
Act 2000, dated 3 August 2009 and which was received in Cambridgeshire 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 Freedom of Information Act 2000 (The Act) requires us to handle all
requests in a manner that is blind to the identity of the requestor. Any
information released in response to a request is regarded as being
published, and therefore in the public domain without caveat.

Your request for information has now been considered and I am not obliged
to supply the information you have requested due to exemptions provided by
the Act.

In respect of Section 1(1)(a) of the FOI Act I can confirm that
Cambridgeshire Constabulary do hold information about the receipt of advice
from the Constabulary's legal adviser.

Section 17 of the Freedom of Information Act 2000 requires Cambridgeshire
Constabulary, when refusing to provide such information (because the
information is exempt) to provide you the applicant with a notice which:
(a) states that fact, (b) specifies the exemption in question and (c)
states (if that would not otherwise be apparent) why the exemption applies.

The exemptions applicable to the information are:

S42(1) Legal Professional Privilege whereby an applicant may not obtain
disclosure of legal advice offered to a public body by a solicitor in
private practice or an in-house lawyer. Legal professional privilege
covers all communications between lawyers and their clients for the purpose
of creating legal advice.

This is a qualified, class-based exemption which requires the application
of a Public Interest Test as set out in the following paragraphs.

Factors to the favour of disclosure:

Accountability: Release of the information held would show the processes
by which decisions are made and thus demonstrate where strengths and/or
weaknesses exist. To hold the Constabulary or it's officers to account in
this way would strengthen decision making processes and increase confidence
in those decisions.

Public Awareness and Debate: Disclosure has the potential to promote
better informed public debate on the issues and ensure that any further
debate is well-informed. As with the accountability requirement, this
would improve decision making and confidence in the decision making.

Factors to the favour non-disclosure:

Efficient and Effective Conduct of the Force: Cambridgeshire Constabulary
requires high quality, comprehensive legal advice for the effective conduct
of it's business. Such advice must be given in context and with the
fullest appreciation of the facts. Legal advice may include arguments in
support of the final conclusion as well as counter-arguments and as a
consequence legal advice may show perceived weaknesses of a particular
position. Without comprehensive advice the Constabulary's decision making
process would be greatly reduced because it would not be fully informed,
which is against the better public interest.

Flow of Information to the Service: there is a risk that both the lawyers
and the Constabulary will avoid making a permanent record of the advice
that is given or to make only a partial record. This would additionally be
contrary to the public interest. Taken to it's extreme, this could result
in a reluctance to take proper legal advice.

Tortuous Duty: to disclose legal advice creates a significant prejudice to
our ability to defend our own legal interests: indirectly by reducing the
reliance which we can place on our advice having been fully considered and
directly by unfairly exposing our legal position. Neither scenario would
be in the public interest since there could be consequential losses,
wastage of resource in defending unecessary challenges.

Courts do not distinguish between private litigants and public authorities
in the context of legal professional privilege. Just as there is a public
interest in individuals being able to consult their lawyers, there is also
a public interest in public authorities being able to do so. Therefore
there is an absolute requirement for them to be able to share information
fully and frankly with legal advisers for the purpose of obtaining legal
advice applies to Cambridgeshire Constabulary just as much as it does to
any individual.

Balance Test

The purpose of this balance test is to consider whether the public interest
in disclosure outweighs the same public interest in retaining the
information. What interests the public is not necessarily in the public
interest to disclose; neither does a numerical superiority in arguments
necessarily lead to a decision favouring one or the other.

I consider that the strongest argument in favour of disclosure is that of
Public Awareness and Debate; to which I will set the weakest argument for
non-disclosure which I consider to be of Flow of Information. Since it is
crucially important that legal advice is correctly obtained and recorded,
and that there must never be a reluctance to seek professional advice I
find the non disclosure argument to be stronger.

The second argument in favour is clearly Accountability and against this, I
set Effecient Conduct of the force. Accountability is a key requirement of
any public organisation and it is therefore vital that there are robust
processes in place to ensure that decisions are properly made and recorded.
However, for that to be achieved it is sometimes necessary to obtain
properly contextualised legal information and with full benefit of all
facts which lead to informed decision making. Again I find that the
argument for non-disclosure is the more compelling.

In respect of their being no further arguments in favour of disclosure, it
is my decision that the greater public interest would be better served by
non-disclosure of the information requested.

In accordance with the Act, this letter represents a Refusal Notice for
this particular request.

If you are unhappy with this response, please see the attachment below,
which sets out your rights to appeal.

(See attached file: Complaint Rights.pdf)

Should you have any further enquiries concerning this matter, please
contact the Information Access Office via email, or on telephone number
0345 456 456 4 extension 8164.

David Price
Information Access Office
Cambridgeshire Constabulary

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From: John Jarman

23 October 2009

Dear Sir or Madam,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Cambridgeshire
Constabulary's handling of my FOI request 'Home Office Guidance'.

I have considered the exemptions that you have claimed allow you to
reject my request, and have also carefully read your balance test.

I offer the following comments for your consideration:

S42(1) Legal Professional Privilege - As I already know what the
advice was (that Home Office guidance is mandatory) I do not
consider there is any overriding public interest in refusing to
disclose the full detail of that advice. The Chief Constable has
already referred publicly to the advice and thus has essentially
indicated her willingness to reveal the advice. She revealed the
essence of the advice in a publicly published letter.

It is a matter of great public interest when a Chief Constable
writes that she believes Home Office guidance in relation to police
injury pensions is mandatory. This view is directly contrary to the
established view. The Home Office itself has declared that the
guidance is not mandatory.

The public interest is not merely academic. All former officers of
Cambridgeshire Constabulary who are in receipt of an injury
pension, and their families, have an expectation and a right to
have their pensions administered in a proportionate and legal
manner. This is not possible if, as seems to be the case, the Chief
Constable believes that she has a mandatory duty to comply with
Home Office guidance. Sight of the legal advice she received would
help establish the basis for her view on the nature of Home Office
guidance and would assist injury pensioners to better understand
the actions of the Constabulary in the administration of their
pensions.

Without sight of the advice there must remain a suspicion that the
Chief Constable may be misquoting the advice or selectively quoting
it in a way that supports her position on the matter. It is already
clearly established beyond the possibility of contrary argument
that Home Office guidance on police injury pensions is
non-mandatory, yet the Chief Constable holds a contrary view. As a
public servant she needs to be open as to why she holds this view,
and sight of the legal advice she was given would be appropriate if
she wishes to abide by the requirement for public bodies to be open
and accountable.

The efficient and effective conduct of the force is more
compromised by non-disclosure of the legal advice given to the
Chief Constable that it would be by disclosure. Non-disclosure must
inevitably create suspicion that the force is trying to conceal
something, thus eroding confidence in the force.

If the advice contains counter-arguments then public knowledge of
these is unlikely to compromise the ability of the force to defend
its position on the issue, for injury pensioners already have
access, through NARPO and the Federation, to a detailed and
comprehensive understanding of the nature of Home Office guidance.
They are therefore unlikely to gain any unfair advantage from sight
of the advice given to the Chief Constable. We are not here talking
about a permanent policy of disclosure of legal advice - we are
talking about one specific instance. Release of the advice would
not compromise the Force's general and continuing right to claim
exemption in order not to release legal opinions given them.

Similarly, it is unlikely that the flow of information between the
Constabulary and its legal advisors would be affected by the
release of one item of legal advice. I find your argument here to
be fallacious. You have proceeded from the particular to the
general with no justification or evidence to support the leap. It
is an argument that is a case of reductio ad absurdum. You have
provided no evidence to support your theory that there is a risk
that both the lawyers and the Constabulary will avoid making a
permanent record of the advice that is given or to make only a
partial record.

As to tortuous duty: The position of the Constabulary is already
fully exposed. The Chief Constable believes that Home Office
guidance is mandatory. There is no possibility of her being placed
at a disadvantage by the legal advice she was given being
disclosed, for she quite obviously has taken a stance that has no
chance of being defended. The Home Office, who issued the advice,
has on several occasions made it very clear that the guidance is
not mandatory.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/ho...

Yours faithfully,

John Jarman

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Cambridgeshire Constabulary

26 October 2009

Dear John

FREEDOM OF INFORMATION REQUEST REFERENCE NO:

We acknowledge receipt of your request for an Internal Review of our
response to you dated 2nd September 2009.

Your request asked for information about legal advice received by the Chief
Constable.

Your appeal will now be considered when the Appeal Panel convenes on
Thursday 12th November 2009 . You will be notified of the outcome of this
appeal in writing.

Should you have any further enquiries concerning this matter, please
telephone on 0345 456 456 4 asking for the Information Access Office or
email [Cambridgeshire Constabulary request email]

Regards

David Price
Information Access Office
Cambridgeshire Constabulary

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Cambridgeshire Constabulary

17 November 2009

Attachment FOI Mr Jarman.doc
405K Download View as HTML

Please find attached a letter from the Chair of the Appeals Panel which sat
to discuss your appeal on 12th November 2009

Kind regards

Niki Howard
Director of Resources (ACPO)

(See attached file: FOI Mr Jarman.doc)

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From: John Jarman

7 December 2009

Dear Cambridgeshire Constabulary,

FREEDOM OF INFORMATION REQUEST REFERENCE NO: 0411/2009

Official Complaint

I am making a complaint about your decision not to release the
information I requested.

You cited Section 42-(1) of the Freedom of Information Act as an
exemption that allowed you to refuse my request.

You reviewed your decision and concluded that your refusal was
justified.

However, you failed to take into account that even if the
information I requested was legally privileged, if it was shared
with third parties then the protection granted by Section 43-(1)
can be deemed to have been waived or lost.

The Chief Constable made reference to the advice in her letter
published in the NARPO magazine, as outlined in my request. She
stated that she had sought and received advice and then revealed
that the advice was that Home Office guidance was mandatory.

This may well have been an inadvertent revealing of the advice, or,
as seems to be the case, a deliberate revealing of the advice. In
either case the advice has lost its confidential nature and the
exemption does not apply. I made it clear to you that I knew the
essential nature of the advice as a result of the Chief Constable's
letter.

I believe that if you contact the Information Commissioner's office
on this point then you will have my contention confirmed.

I therefore ask that you either accept this message as an official
complaint and proceed accordingly, in which case I will reserve the
right to appeal to the Information Commissioner, or you accept that
Section 43-(1) does not apply in these circumstances.

Of course, you may still exercise your discretion to release the
advice I requested, in the interests of transparency.

I have to tell you that for so long as the advice remains
unexamined by myself there will be a suspicion that it did not
contain the information that the Chief Constable claimed. I find it
difficult to conceive that a legally qualified advisor could advise
that Home Office guidance is mandatory. This is not a grey area,
and a simple check with the Home Office would have confirmed that
the guidance contained in Annex C to Home Office circular 46/2004
is most certainly non-mandatory. Further, the Chief Constable holds
a law degree and can reasonably be presumed to be capable of
knowing that Home Office guidance is not mandatory, or to have the
experience and capability of checking the fact for herself.

This suspicion may help you to conclude that release of the advice
that the Chief Constable received is the proper course of action.

Please note that this complaint is not a FOIA request so is not
subject to the time impositions of the Act. I do hope that you will
feel able to deal with my complaint in an expeditious manner.

Yours faithfully,

John Jarman

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Cambridgeshire Constabulary

7 December 2009

I will be out of the office starting 02/12/2009 and will not return until
09/12/2009.

I am now out of the office until the 8th December but I will try to respond
to your email as soon as possible. If you require an urgent response to
your email please contact an appropriate member of my staff, thank you.

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Cambridgeshire Constabulary

9 December 2009

Attachment Complaint Rights new.nov 09.pdf
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Attachment Complaint Rights new.nov 09.doc
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I acknowledge receipt of your email dated 7th December 2009 in which you
wish to make an official complaint in respect of the recent Appeal Panel
review of your Freedom of Information request (0411/2009).

As Chair of the Appeal Panel which sat to review the decision to apply an
exemption under S42(1) of the Act, I can reassure you that your appeal was
properly processed and that the decision to uphold the original response
was very carefully considered. The Appeal Panel consisted of myself ; a
police authority member; a senior police officer (Superintendent) and the
FOI case officer who prepared your response. In addition, the senior
officer with overall responsibility for FOI and Data Protection (Chief
Inspector) was present in a solely advisory capacity. We were given full
access to all the decision-making documentation, which included full copies
of the legal advice received by the Chief Constable to which your request
referred.

In accordance with the complaint rights afforded to you under S50 of the
Act, I must advise you to apply to the Information Commissioners Office for
any decision regarding whether we have properly dealt with the requirements
of Part 1 of that Act. I attach a copy of your complaint rights for
information.

(See attached file: Complaint Rights new.nov - 09.pdf)

If you need the attachment in .doc form:

(See attached file: Complaint Rights new.nov - 09.doc)

Regards

Niki Howard
Assistant Chief Officer ACPO

-------

John Jarman
<request-15961-50
d8ff55@whatdothey To
know.com> [email address]
cc
07/12/2009 19:32
Subject
Re: Freedom of Information request
- Home Office Guidance

Dear Cambridgeshire Constabulary,

FREEDOM OF INFORMATION REQUEST REFERENCE NO: 0411/2009

Official Complaint

I am making a complaint about your decision not to release the
information I requested.

You cited Section 42-(1) of the Freedom of Information Act as an
exemption that allowed you to refuse my request.

You reviewed your decision and concluded that your refusal was
justified.

However, you failed to take into account that even if the
information I requested was legally privileged, if it was shared
with third parties then the protection granted by Section 43-(1)
can be deemed to have been waived or lost.

The Chief Constable made reference to the advice in her letter
published in the NARPO magazine, as outlined in my request. She
stated that she had sought and received advice and then revealed
that the advice was that Home Office guidance was mandatory.

This may well have been an inadvertent revealing of the advice, or,
as seems to be the case, a deliberate revealing of the advice. In
either case the advice has lost its confidential nature and the
exemption does not apply. I made it clear to you that I knew the
essential nature of the advice as a result of the Chief Constable's
letter.

I believe that if you contact the Information Commissioner's office
on this point then you will have my contention confirmed.

I therefore ask that you either accept this message as an official
complaint and proceed accordingly, in which case I will reserve the
right to appeal to the Information Commissioner, or you accept that
Section 43-(1) does not apply in these circumstances.

Of course, you may still exercise your discretion to release the
advice I requested, in the interests of transparency.

I have to tell you that for so long as the advice remains
unexamined by myself there will be a suspicion that it did not
contain the information that the Chief Constable claimed. I find it
difficult to conceive that a legally qualified advisor could advise
that Home Office guidance is mandatory. This is not a grey area,
and a simple check with the Home Office would have confirmed that
the guidance contained in Annex C to Home Office circular 46/2004
is most certainly non-mandatory. Further, the Chief Constable holds
a law degree and can reasonably be presumed to be capable of
knowing that Home Office guidance is not mandatory, or to have the
experience and capability of checking the fact for herself.

This suspicion may help you to conclude that release of the advice
that the Chief Constable received is the proper course of action.

Please note that this complaint is not a FOIA request so is not
subject to the time impositions of the Act. I do hope that you will
feel able to deal with my complaint in an expeditious manner.

Yours faithfully,

John Jarman

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From: John Jarman

11 December 2009

Dear Cambridgeshire Constabulary,

Thank you for your response.

You may now consider my complaint withdrawn.

I will, however, now approach the Information Commissioner for an
adjudication.

Yours faithfully,

John Jarman

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John Jarman left an annotation (17 December 2009)

The Information Commissioner has been contacted and asked for an adjudication on this request.

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From: John Jarman

28 February 2010

Dear Cambridgeshire Constabulary,

FREEDOM OF INFORMATION REQUEST REFERENCE NO: 0411/09

I note that under Section 16-(1) of the Act it is the duty of a
public authority to provide advice and assistance to a person who
has made a request for information.

In a response to my application for an internal review of the above
FOIA request ACC Niki Howard stated:

'We were given full access to all the decision-making
documentation, which included full copies
of the legal advice received by the Chief Constable to which your
request referred.'

I ask that you please supply me with a full list of the
decision-making documentation that is mentioned.

I see from a separate FOIA request, Ref. No. 0539/09 made to
Cambridgeshire Constabulary on the 18th October 2009, that the
response identifies that the Chief Constable made a request for
legal advice concerning Home Office guidance on the 6th of March
2009.

This legal advice was clearly that which she referred to in her
letter to Mr. MacCallum, as published in the July issue of the
Cambridgeshire NARPO branch newsletter.

I therefore ask you to assist me by confirming or denying that the
'full copies of the legal advice received by the Chief Constable to
which your request referred' included the legal advice that
resulted from the Chief Constable's request of 6th March.

Yours faithfully,

John Jarman

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Cambridgeshire Constabulary

1 March 2010

Dear John

FREEDOM OF INFORMATION REQUEST REFERENCE NO: 0110/10

We acknowledge receipt of your Freedom of Information (FOI) request which
was received by Cambridgeshire Constabulary on 01/03/10.

Your request will now be considered in accordance with the Freedom of
Information Act 2000. You will receive a response within the statutory
timescale of twenty working days as defined by the Act. In some
circumstances, we may be unable to achieve this deadline. If this is the
case, you will be informed and given a revised time-scale at the earliest
opportunity.

If we require any further clarification regarding this request, you will
be notified.

We would advise you that the nature of certain requests may involve
payment of a fee. If this is the case, you will be notified.

Should you have any further enquiries concerning this matter, please
telephone on 0345 456 456 4 asking for the Information Access Office or
email [Cambridgeshire Constabulary request email]

Regards

Donna Anderson
Information Access Office
Cambridgeshire Constabulary

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Cambridgeshire Constabulary

9 March 2010

Attachment Complaint Rights new.nov 09.pdf
100K Download View as HTML

Dear John

FREEDOM OF INFORMATION REQUEST REFERENCE NO: 0110/2010

In reply to your request for information under the Freedom of Information
Act 2000, dated 1st March 2010 and received in Cambridgeshire as follows:

In a response to my application for an internal review of my FOIA request
0411/2009, Niki Howard stated:

'We were given full access to all the decision-making documentation, which
included full copies of the legal advice received by the Chief Constable
to which your
request referred.'

1. I ask that you please supply me with a full list of the decision-making
documentation that is mentioned.

I see from a separate FOIA request, Ref. No. 0539/09 made to
Cambridgeshire Constabulary on the 18th October 2009, that the response
identifies that the Chief Constable made a request for
legal advice concerning Home Office guidance on the 6th of March 2009.

This legal advice was clearly that which she referred to in her letter to
Mr. MacCallum, as published in the July issue of the Cambridgeshire NARPO
branch newsletter.
2. I therefore ask you to assist me by confirming or denying that the
'full copies of the legal advice received by the Chief Constable to which
your request referred' included the legal advice that
resulted from the Chief Constable's request of 6th March.

Please note that for clarity I have reworded the first line of your
request and added question numbers for the two questions contained within
your request.

The Freedom of Information Act 2000 (The Act) requires us to handle all
requests in a manner that is blind to the identity of the requestor. Any
information released in response to a request is regarded as being
published, and therefore in the public domain without caveat.

We have completed all searches within Cambridgeshire Constabulary and
hereby enclose your response.

1. In respect of your first question, the decision-making documents made
available to the Appeal Panel were as follows:

(i) An initial assessment made by the Information Access Officer (IAO) to
ascertain whether there is harm in confirming that the information is
held.

(ii) Harm Test - a test to identify any harm which may result from a
release of all or part of the located information fully into the public
domain.

(iii) Public Interest Test - which is fully shown within the body of the
response.

(iv) Balance Test - also fully shown within the response.

(v) An exchange of emails between the IAO and our legal advisers.

(vi) A current copy (Version 6) of the ACPO Manual of Guidance: The
Freedom of Information Act (2000).

(vii) A briefing pack was issued to all members of the Appeals Panel 5
clear working days before the panel convened. These packs contained copies
of the initial request; the response given; a copy of your appeal email
and copies of any advice which the IAO sought from our Central Referrals
Unit (CRU).

(viii) The complete casefile containing all email traffic between the IAO
and internal or external departments including the requestor. The casefile
includes a full transcript of both the initial request for legal advice
and the subsequent advice received.

2. I can confirm that the information covered by both 0411/2009 and
0539/2009 contain the same legal advice request and response which was
initiated by the Chief Constable on 6 March 2009.

I would remind you that the response to your original request (0411/2009)
was upheld on appeal to our internal review and complaint processes and
our decisions are currently being examined by the Information
Commissioners Office. That process was initiated in December 2009 and a
ruling is awaited.

Finally I would bring your attention to S14 of the Freedom of Information
Act, 2000, which states that a force does not have to comply with requests
which are considered vexatious. In those circumstances there is no
requirement to conduct a public interest test or to provide any
information. Whilst I have provided the information which you have
requested on this occasion, further requests of a substantially similar
nature are likely to attract this exemption. No further consultation will
take place on any points which are currently being dealt with by the ICO
until their decision has been issued.

If you are unhappy with this response, please see the attachment below,
which sets out your rights to appeal.
(See attached file: Complaint Rights new.nov - 09.pdf)

Should you have any further enquiries concerning this matter, please
contact the Information Access Office via email, or on telephone number
0345 456 456 4 extension 8164.

Regards

David Price
Information Access Office
Cambridgeshire Constabulary

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Winston Smith left an annotation (16 March 2010)

John, I think you will find that the Constabulary have responded; gone through their appeals process; and it is now with the ICO. How you can put it down as 'Long Overdue' is highly bemusing.

Winston

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John Jarman left an annotation (16 March 2010)

Winston,

You are correct in what you say, but as I have not yet actually received the information I asked for the request is still outstanding.

However, there is no provision on whatdotheyknow to update the request with a marker that reads, 'Awaiting result of appeal to the Information Commissioner'.

The options available are:

I'm still waiting for my information (maybe you got an acknowledgement)
I've been asked to clarify my request
I'm waiting for an internal review response
They are going to reply by post
They do not have the information (maybe they say who does)
I've received some of the information
I've received all the information
My request has been rejected
I've received an error message
This request requires administrator attention
I would like to withdraw this request

So, 'I'm still waiting for my information' seemed the most appropriate.

John

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John Jarman left an annotation (16 March 2010)

This request is awaiting adjudication by the Information Commissioner:

'12th March 2010

Case Reference Number FS50282551

Dear Mr Jarman,

I am writing to update you on the status of your complaint. I can confirm that I have received a full response from the public authority and I am currently in the process of considering the papers in full.

I will be in touch as soon possible to provide you with my initial findings.

Yours sincerely

Arleen Lennard

Complaints Officer

Information Commissioner’s Office'

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Winston Smith left an annotation (23 March 2010)

Sorry John, I disagree - the closest is that you are awaiting an internal review. The way you have played it would appear to most people as an attempt to embarrass the police as much as possible and all you've succeeded in doing so far is to end up with a S14 Vexatious warning, which is pretty unusual. No doubt the police would also appeal any decision which goes against them from the ICO; you could be waiting years.

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Cambridgeshire Constabulary

26 April 2010

Dear John

FREEDOM OF INFORMATION REQUEST 0411/2010

Further to your request for information dated 3rd August 2009, it is our
understanding from correspondence received from the Information
Commissioner's Office on 26th April 2010 that you have withdrawn your
request for a review by the Information Commissioner.

If our understanding is incorrect, please advise.

Regards

David

David Price
Information Access Office
Cambridgeshire Constabulary

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John Jarman left an annotation (30 April 2010)

This request for information from Cambridgeshire Constabulary met with firm resistance at all stages.

The Information Commissioner has, I believe, carefully considered all arguments but has decided not to compel release of the information. I have accordingly withdrawn the complaint.

If you have been following this request, you will recall that there was concern that the Chief Constable of Cambridgeshire Constabulary claimed that she had been advised, by her legal experts, that Home Office guidance on police injury pensions contained in Annex C to HO circular 46/2004 was mandatory.

The guidance is not mandatory - a fact acknowledged by the Home Office and confirmed in recent High Court cases.

Yet the Chief Constable's advisors apparently told her otherwise.

Release of the information would have removed a worrying doubt that either the Chief Constable was poorly advised or that she did not accurately or fully report the advice.

As it happens, the Chief Constable has now tendered her resignation.

This issue is not yet concluded though, as it will be raised again in another arena, where, hopefully, the truth will emerge.

Meanwhile, below is the full response from the Information Commissioner.

John Jarman
------------------------:

Case Reference Number FS50282551

Dear Mr Jarman,

Further to my correspondence of 12 March 2010, I am now writing to you with my findings in this case.

You requested the following information:

“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.”

Cambridgeshire Constabulary refused to disclose the information by virtue of the exemption contained at section 42(1) of the Freedom of Information Act 2000.

The Investigation

As part of my investigation I have seen the legal advice which you have requested. The advice contains detailed legal advice about specific issues.

Section 42 of the Act sets out an exemption for information protected by legal professional privilege (LPP). This exemption is qualified, which means that it is subject to a public interest test. The ICO’s published guidance ‘The exemption for legal professional privilege’ states that a two-stage test must be applied in order to withhold information.

The first question is whether the information is covered by LPP. If so, the second question asks if the public interest is in favour of maintaining the exemption.

Advice Privilege

In this case, the relevant LPP is advice privilege. This applies where no litigation is in progress or being contemplated. In these cases, the communications must be:

confidential; made between a client and professional legal adviser acting in their professional capacity; and made for the sole or dominant purpose of obtaining legal advice.

In this case, the advice would appear to meet all three conditions and therefore be covered by LPP.

Waiver of LPP

LPP may be lost (waived) if the client has shared the information with third parties without restriction and it has lost its confidential character. If this is the case, the exemption will not apply.

I understand you feel that Cambridgeshire Constabulary has waived its right to apply section 42 due to the information which was released into the public domain, however the information which was released was not the content of the legal advice, it was merely the outcome of that advice and as such it is the Commissioner’s opinion that the public authority has not waived its right to claim legal professional privilege with respect to the withheld information.

The public interest test

The ICO’s guidance states that if LPP applies, there will need to be strong public interest in disclosure to offset the inevitable strong public interest in favour of the exemption. Public interest factors to consider may include whether the advice is still recent or live, how many people are affected, how much money is at stake or whether there is a reasonable suspicion of illegality or misrepresentation.

Analysis

Having assessed the withheld information it is clear that the advice is relatively recent and concerns current matters. In their response to you, the public authority argue, they consider that the balance of the public interest supports withholding the requested information. This is an important consideration.

There have been relatively few occasions where the Commissioner or Information Tribunal have considered that in all the circumstances, the public interest in disclosure was strong enough to order disclosure.

One such case was that of Mersey Tunnel Users Association v Information Commissioner and Merseytravel (EA/2007/0052; 15 February 2008). In this case, the Information Tribunal judged that the number of people affected was significant. The advice affected 80,000 drivers every weekday and could also affect around 1.5 million residents. There was also a large amount of money at stake: around £70 million. These were some of the factors which weighed in favour of disclosing the information.

It could be argued that there is a strong argument for disclosure in this case due to the requirement for transparency and accountability from the constabulary. The constabulary have acknowledged that there is a public interest in providing information that may inform debate. The Commissioner recognises this public interest.

Having discussed your complaint with the public authority, Cambridgeshire Constabulary would like me to draw your attention to the Police (Injury Benefit) Regulations 2006 which are available to view at

http://www.opsi.gov.uk/SI/si2006/2006093...

Particularly regulation 37(1) which states:

“Reassessment of injury pension

37. — (1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner's disablement has altered; and if after such consideration the police authority find that the degree of the pensioner's disablement has substantially altered, the pension shall be revised accordingly.”

The public authority have explained to me that the existence of the regulation quoted above is proof that the requirement to carry out regular reviews is mandatory, which overrides any guidance issued by the Home Office, and therefore does not waive the legal professional privilege of the Constabulary as the information is already in the public domain and accessible to anyone who may wish to view it.

I appreciate that you are concerned with the detriment and distress caused to yourself and other retired officers in receipt of an injury pension which may be reduced. However the Commissioner’s role is as regulator of the Act and it is his duty to decide whether a request for information made to a public authority has been dealt with in accordance with the requirements of Part 1 of the Act.

Conclusions

Given the arguments above, the Commissioner’s assessment is that the public interest in maintaining the exemption is not outweighed by the public interest in disclosing the information.

There would appear to be no public interest factors in this case which are strong enough to outweigh the strong public interest in maintaining the confidentiality between professional legal advisers and their clients. It is therefore unlikely that the Commissioner or the Information Tribunal would order disclosure of the requested information.

The public authority’s response correctly identified that disclosure of such information is prohibited by section 42(1) of the Freedom of Information Act 2000 (‘the Act’) which states:

“Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.”

I am aware that due to the circumstances of your request you had hoped that there would be an exception to compliance with the legislation. The public authority has dealt with the request in accordance with the Act, the information cannot be disclosed.

Under these circumstances, I should like to ask if you would consider withdrawing your complaint. Should you wish to pursue your complaint, I will issue a Decision Notice in respect of it. In this case, I would ask that you send the ICO any further public interest arguments that you feel are relevant. However, it is important that you are aware that there have been relatively few occasions where the Commissioner and the Information Tribunal have ordered disclosure in cases where LPP has been cited.

Steps to take

I should be grateful if you would indicate how you wish to pursue this case within the next ten working days (i.e. by 4 May 2010). If I do not hear from you by this date, I shall assume that you wish to withdraw your complaint.

Yours sincerely

Arleen Lennard
Complaints Officer
Information Commissioner’s Office

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Winston Smith left an annotation ( 3 May 2010)

John, thanks for the update. I am somewhat concerned over your assertion that the Chief Constable RESIGNED as I am given to understand from the local press that she has, in fact, announced her RETIREMENT.
There is a world of difference between the two.

WS

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Things to do with this request

Anyone:
Cambridgeshire Constabulary only: