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In Greenwood v Information Commissioner [2024] UKFTT 834 (GRC) the FTT overturned the ICO’s decision that the Serious Fraud Office (“SFO”) had been entitled to withhold information about how much one of its investigations had cost.
In response to a FOIA request, the SFO confirmed it knew how much it had been spent on an investigation into a company called the Eurasian Natural Resources Corporation Ltd. However, the SFO declined the provide the information on the grounds that doing so could prejudice the prevention or detection of crime (s.31 FOIA – the law enforcement exception). The SFO maintained its position following an internal review.
The Law
Section 31 FOIA materially reads as follows:
“31.— Law enforcement.
(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders,
(c) the administration of justice […]
(g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2) […]
(2) The purposes referred to in subsection (1)(g) to (i) are—
(a) the purpose of ascertaining whether any person has failed to comply with the law,
(b) the purpose of ascertaining whether any person is responsible for any conduct which is improper,
[…](3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).
ICO’s View
The Commissioner dismissed the Appellant’s complaint. It held that the law enforcement exception was engaged given the SFOs core function, the likely prejudice caused by the cumulative disclosure of information from similar future requests, and the possibility that this request could be revisited in future. The ICO also found the public interest in avoiding prejudice to the SFO’s investigations outweighed the public interest in disclosure.
FTT Disagrees
The FTT disagreed. It applied the approach set out in Hogan v Information Commissioner [2011] 1 Info LR 588 to prejudice-based exceptions. It found that there was a real risk that the disclosure could impair the SFOs ability to fight crime. In particular, repeated disclosures could guide criminals as to how the SFO tends to operate. However, the FTT held there was a particularly strong public interest in disclosure in this case because the SFO had been criticised for the length and cost of its 10-year investigation into the company (ENRC):
The public interest in the matter goes beyond the general interest in transparency as to how the SFO resources its cases. There is strong public interest in understanding the use of taxpayer money in such lengthy and complex proceedings, particularly where the SFP has been found liable in the civil case.
The SFO was therefore ordered to disclose the relevant information within 42 days.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
