The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

FTT rejects request for retired police officer’s disciplinary history, but leaves door open

31 August 2022

Wardrop v Information Commissioner and Metropolitan Police Service [2022] UKFTT 261 (GRC)

A requester sought information under FOIA from the Metropolitan Police about a disciplinary process in respect of a police officer who left the force in 2003 and now worked at a university. The MPS refused to confirm or deny that it held any information under s.40(5) FOIA, and the ICO upheld that refusal. The requester appealed, arguing that the rights of young women and girls at the university should be prioritised over the individual rights of a former police officer employed there, that as a public servant, a police officer can expect to be held accountable for their actions whilst on duty, and conduct enquiry records should be publicly available to protect members of the public and support the highest standards of policing, and that the only option is for information to be released in the public interest.

The FTT applied the usual approach to s.40(5), considering whether the confirmation or denial that personal data was held would be lawful but for  FOIA based on a legitimate interest, balancing that against the data subject’s rights and freedoms. They held that there was legitimate interest in confirmation or denial, and that confirmation or denial would be reasonably required to meet that legitimate interest. But on the basis that misconduct hearings in 2003 were private, they held that the officer would have had a reasonable expectation of privacy in the outcome, would be likely to be distressed by confirmation or denial being provided, and held that on balance the former officer’s rights and freedoms outweighed the legitimate interest in confirmation or denial. They put weight on the time that had passed and the other mechanisms available for protecting women and girls.

The interesting aspect of the decision is that they left the door firmly open for other similar requests. The FTT noted that since police misconduct proceedings became, by default, public in 2015, ‘There is now enhanced openness and transparency, and the outcome in this case may have been different if the request related to recent disciplinary proceedings.’ To some extent, that reflects the very limited nature of this appeal: it related to a refusal to confirm or deny, so the question of actual provision of information was not a live one. But it is potentially at odds with the recent FTT decisions in Austin v ICO & MPS (April 2022), where reports of outcomes to recent misconduct proceedings were provided to the requester under FOIA only after the removal of personal data (an appeal against the removal of personal data was dropped, but maintained – and successful – in respect of the disclosure of names of panel chairs), and that in Kanter-Webber v ICO (June 2022), where the audio recording of a misconduct hearing was held to be personal data that should be withheld under s.40 FOIA. Other exemptions may also apply, and it seems likely that at some stage the Upper Tribunal is going to need to address the interaction of FOIA and the police misconduct regime, or even regulatory regimes more generally. Until that occurs, police forces, at least, may need to anticipate FOIA requests following disciplinary proceedings.

Further reading:

Judgment: BAILII

Austin v ICO [2022] UKFTT 2021_214 (GRC)

Kanter-Webber v ICO [2022] UKFTT 2021_376 (GRC)

The Data Brief

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.

Visit the Information Law, Data Protection and AI area

Search The Data Brief

Portfolio Builder

Select the practice areas that you would like to download or add to the portfolio

Download    Add to portfolio   
Title Type CV Email

Remove All


Click here to share this shortlist.
(It will expire after 30 days.)