The Data Brief

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

FTT holds that Cash in Envelopes disclosures would undermine International Relations

30 January 2024

Mr Austin noticed an entry on the gifts and hospitality register that £12,500 was received in cash in envelopes by a police sergeant working in the Royalty and Specialist Protection from an overseas partner. He made a FOIA request. The MPS confirmed that the donation was entered onto the register on 28 April 20222 and had been donated to the Commissioner’s Fund and the Metropolitan Police Benevolent Fund. However, they refused to confirm the name of the Police sergeant, the country of the overseas partner, the person who provided the money or the reason the money was provided. They relied upon the s.27(1) FOIA exemption relating to international relations.

When the MPS declined to provide further details at an internal review, Mr Austin presented a claim to the FTT arguing that the MPS was wrong to rely on an international relations exemption, challenged the lack of evidence provided including noting that the country in question had not been asked about disclosure, and that if the individual providing the cash was a public figure fulfilling a public function, they should be named.

The ICO investigated and produced a decision notice. The MPS disclosed the name of the country and relevant partner to the ICO but the actual name of the person making the donation had not been recorded and the receiving officer did not know it.  The ICO considered that a 3 stage test should be applied:

  • First, the actual harm which the MPS alleges would, or would be likely to, occur if the withheld information were disclosed has to relate to the applicable interests within the relevant exemption.
  • Second, the MPS must be able to demonstrate that some causal relationship exists between the potential disclosure and the prejudice which the exemption is designed to protect. Furthermore, the resultant prejudice which is alleged must be real, actual or of substance.
  • Third, it is necessary to establish whether the level of likelihood of prejudice being relied upon by the MPS is met, namely that disclosure ‘would be likely’ to result in prejudice or disclosure ‘would’ result in prejudice.

The FTT commented that it was extraordinary that thousands of pounds in cash has been handed over to a police officer in envelopes by a foreign dignitary who is being provided with police protection in the UK. They noted that there is a policy, unsurprisingly, that such gifts should not be accepted. However, the FTT, applying the three stage test set out above, and considering the evidence that had been produced in OPEN and CLOSED, concluded that the international relations exemption was engaged, that the public interest favours withholding disclosure, and dismissed the appeal.

They had little difficulty in concluding that s.27(1)(a) and (c) and FOIA were engaged in a case about a person who receives protection from the public both in terms of individual risks as well as that it might affect the nature and content of protection provided abroad for UK dignitaries.  The identity of the principal and country heightened those concerns.

Further, they concluded that it is not always possible to anticipate a response from another State or predict what may happen if the disclosure has not previously been made. On balance, disclosure of the information would be likely to prejudice both the relations between the UK and other states, and also the interests of the UK abroad.

They did note the strong public interests in favour of disclosure especially given the MPS policy that such gifts should not be accepted. Nevertheless, they consider such public interest in the scrutiny of such gifts was met to an extent by the fact of the Gifts and Hospitality Register identifying the gift and that it was donated to charity.

It is plain from the decision that notwithstanding the FTT’s concerns about such payments being made and accepted and the strong public interest in disclosing that information, the MPS were able to resist the application based on clear and cogent evidence set out in both OPEN and CLOSED. Although specific harms could not be identified, the evidence clearly addressed the type of such harms, and this was sufficient given the nature of the case.

Finally, the Appellant complained about the over friendly tone of communications between the MPS and the Commissioner. Whilst stressing that this was not a matter for the Tribunal, they commented that it is not surprising that the staff of public authorities dealing with FOIA requests will develop a familiarity with those who work for the ICO. However, they added a note that it is important that those communications should always be carried out in a professional tone.

Jonathan Dixey represented the Metropolitan Police Commissioner.

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