John Goss appears in significant FOIA decision on police misconduct hearings

31 January 2024

In Kanter-Webber v Information Commisioner & Hampshire Constabulary [2024] UKFTT 00090 (GRC) (National Archives link), heard on 8 January and promulgated on 30 January 2024, Upper Tribunal Judge Rintoul (sitting as a judge of the First-tier Tribunal and with a lay member) accepted John’s submissions on behalf of Hampshire Constabulary that a police misconduct panel (PMP) chaired by a legally qualified chair (LQC) is a ‘tribunal or other body exercising the judicial power of the state’, making it a ‘court’ for the purposes of s.32 of FOIA. That means that information filed with or created by or on behalf of a PMP for the purpose of proceedings – in this case, the transcript or recording of a lengthy and high-profile misconduct hearing – is subject to an absolute exemption from disclosure under FOIA. There is no need for any public interest balancing exercise to be conducted.

This principle would also cover other documents filed or created for the purpose of proceedings, such as regulation 30 and 31 notices, opening notes, or a panel’s written decisions.

The key finding in the conclusion that a PMP exercises the power of the state was that unlike other disciplinary panels, it can remove an individual from an office that enables the holder to exercise the power of the state. ‘A PMP has the power to decide, as Mr Goss submitted, who is entitled to be a constable’ (para 40).

Having reached a clear finding on the s.32 exemption, the FTT declined to consider reliance on s.31 and s.40 FOIA in the alternative.

While only a FTT decision, the fact that it was by an Upper Tribunal Judge following an oral hearing is likely to mean that it will be given substantial weight by both the Information Commissioner (who supported Hampshire’s position) and other FTTs.

FOIA requests relating to misconduct proceedings have become increasingly common, often seeking to circumvent decisions made by LQCs around publicity or even anonymity. Where they are limited to documents created by or for the purpose of misconduct hearings before a LQC, such requests can now rapidly and reliably be refused under FOIA citing s.32, without needing to consider either the prejudice-based and qualified exemption under s.31 FOIA relating to investigations, or the complex provisions relating to protection of personal data under s.40 FOIA (an absolute exemption, but one likely to require its own legitimate interest balancing exercise). Any requests for information from the proceedings, including access to recordings or transcripts, are instead a matter for the LQC concerned (para 38 of the decision).

The decision is clear that it applies to PMPs ‘when constituted with a legal chair’ (para 44), so is unlikely to apply to accelerated hearings under Part 5 of the Conduct Regulations heard by chief officers. It also cannot be directly applied to cases chaired by chief officers under the upcoming reforms announced by the Government last autumn. Because of the limits of s.32 itself, it will also not apply to material gathered in any disciplinary investigation conducted by the Appropriate Authority – only to material created for or in the proceedings themselves. Nonetheless, at least for the time being, it provides welcome clarity on how FOIA and the police misconduct regime interact.

John regularly acts in FOIA and EIR cases for requesters, public authorities and the Information Commissioner, as well as in a wide variety of other data protection and information law proceedings. He also has extensive experience acting in police misconduct proceedings.

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