Select an area of expertise to find out more about our experience.
Find out more about our barristers and business support teams here.
Select an area of expertise to find out more about our experience.
Find out more about our barristers and business support teams here.
On 29 July 2024, the First Tier Tribunal (FTT) handed down judgment in this appeal, upholding the refusal of the Metropolitan Police Service (MPS) to disclose materials concerning police officers where an investigation had been conducted into officer’s social media use and where materials were covered by the personal information, public authority investigation and health and safety exceptions of the Freedom of Information Act (FIOA). The decision provides a helpful summary of the principles of each exception.
On 4 October 2021 the MPS received a Freedom of Information (FOI) request from the Appellant, a journalist investigating misconduct by police officers online. The request sought inter alia copies of any offensive messages and posts made or shared on social media by officers as well as brief descriptions of the events of each case. The MPS made a number of partial disclosures but cited the s.40(2) FOIA exemption (personal information) in withholding some data which otherwise fell within the terms of the request. This refusal was referred to the Information Commissioner (IC) by the Appellant. The IC invited the MPS to revisit whether brief descriptions of the conduct could be provided, whether the messages had been sifted and to provide submissions on the FOIA exemptions invoked. On 11 October 2022 the MPS provided its legal reasons, relying on the s.40(2) (personal information) and s.30(1)(a)(i) (public authority investigations) exceptions as well as outlining the disclosures already made. In a 22 November 2022 Decision Notice the IC found that s.40(2) could properly be relied upon and found no need to consider whether the s.30(1)(a) exemption applied. The MPS also invoked the s.38 exception (health and safety). The Appellant appealed the Decision Notice under s.57 of FOIA. Prior to the appeal hearing the MPS lodged with the IC posts on social media that could be disclosed with redactions to identifiers of officers, descriptions of posts which could not be disclosed and notes stating where items were entirely withheld. The hearing was heard across 6 October 2023 and 8 July 2024.
(1) The Personal Information Exception (s.40(2)(3A) FOIA)
Any disclosure of personal data to a member of the public that would contravene any of the data protection principles is exempt from disclosure. S40 is an absolute exemption and is thereby not subject to the public interest test. The key issue in this case was whether the information in question related to any identified or identifiable living individual. Article 5 UK GDPR provides that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject. When determining whether a disclosure would contravene this principle, the following factors need be determined:
i. Is the information special category data?
ii. Is the information criminal offence data?
iii. Is there any Article 6 lawful basis for processing personal data?
iv. Does lawful basis (a) consent apply?
v. Does lawful basis (f) legitimate interests apply?
vi. Would disclosure be lawful generally?
In this case there was no consent provided for the disclosure (iv. above) and so the FTT turned to consider whether Article 6(1)(f) could be relied upon. The FTT set out the tripartite test to be determined:
i. What is the legitimate interest in the disclosure of the information? (the legitimate interest test).
ii. Is disclosure necessary for that purpose? (the necessity test).
iii. Does this legitimate interest override the interests, rights and freedoms of the
individual? (the balancing test).
This judgment provides a useful touchstone for those considering invoking s.40(2)(3A) and Article 6(1)(f) UK GDPR as a basis for refusing a FOI request, setting out the relevant legal principles.
(2) The Investigations by Public Authorities Exemption (s.30(1) FOIA)
This is a qualified exemption that provides as follows:
(1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of—
(a) any investigation which the public authority has a duty to conduct with a view to it being ascertained—
(i) whether a person should be charged with an offence, or
(ii) whether a person charged with an offence is guilty of it,
(b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or
(c) any criminal proceedings which the authority has power to conduct.
In this case, only s.30(1)(a)(i) was relevant on the facts. Information held remains exempt even once an investigation has been closed and captures investigations where civil (rather than criminal) sanctions are used. As a qualified exemption, this is subject to the public interest test.
(3) The Health and Safety Exemption (s.38 FOIA)
This is a further qualified exemption subject to a public interest test, providing:
(1) Information is exempt information if its disclosure under this Act would, or would be
likely to—
(a) endanger the physical or mental health of any individual, or
(b) endanger the safety of any individual.
(2) The duty to confirm or deny does not arise if, or to the extent that, compliance with s.
1(1)(a) would, or would be likely to, have either of the effects mentioned in subsection (1).
At the appeal, the FTT was invited to consider whether the exemptions relied upon in relation to a number of social media post were justified. The MPS in both evidence and submissions referred to the significant time expended in responding to the FOI request but did not invoke the s.12 FOIA exemption (cost of compliance exceeding the appropriate limit) because of the length of time during which disclosures had already been made prior to the hearing. Seven cases remained in issue as of 8 July 2024.
The FTT conducted Open and Closed sessions, considering redacted and unredacted materials before providing a Gist of the Closed session to the Appellant.
The FTT refused the appeal in respect of all seven cases, finding that the materials were covered by the exemptions detailed above, with one containing no material that was relevant to the terms of the Appellant’s initial request. The s.40(2)(a) (personal information) exception applied and the FTT provided a useful summary of what falls to be considered as ‘identifiability’ in the context of FOI responses. So far as relevant to the qualified exceptions, the FTT concluded that the Appellant had a legitimate interest, but that disclosure of the withheld material was not reasonably necessary on the facts of the case. The FTT allowed the appeal in so far as the Decision Notice was incorrect in law in determining that the materials withheld at the time of that Notice, without the disclosures made by the MPS between the making of the Notice and the appeal, were correctly withheld.
This decision affords useful instruction for public authorities responding to FOI requests, particularly where the subject of requests concerns investigations into their staff or officers.
Coming just after the decision in Cobban & Ors v DPP [2024] EWHC 1908, in which the Divisional Court refused appeals against the convictions of police officers for s127 Communications Act 2003 offences on the basis that they were engaged in private consensual messaging, it serves as a warning that employers and quasi-employers of those who send grossly offensive messages may face FOI requests.
In responding to such requests, invoking the personal information exemption where appropriate may be powerful as it is an absolute exemption. The investigations exemption may also be relevant.
Consideration should also be given to the question of whether any disclosure of the information might harm the public if disclosed, namely by impacting the physical or mental health of data subjects, victims, witnesses and relatives.
Invoking multiple exceptions where applicable remains sensible counsel for recipients of FOI requests.
The decision is also of wider interest on the topical subject of the meaning of ‘identifiable’ in the context of social media including memes.
Francesca Whitelaw KC appeared for the Commissioner of Police in this Appeal.
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.
