Line to take - LTT67 - Public interest in s30(1) & s31

• FOI/EIR: FOI
• Section/Regulation: s30(1), s31
• Issue: Public interest in s30(1) & s31
• Source: Information Tribunal
• Details: Toms / Royal Mail (19 June 2006); Guardian / Avon & Somerset Police (6 March 2007); Hargrave / National Archives & Commissioner of Police of the Metropolis (3 December 2007); Hogan / Oxford City Council (17 October 2006)
• Related Lines to Take: LTT14, LTT19, LTT20, LTT100
• Related Documents: FS50072311 (Toms), FS50078588 (Guardian), EA/2005/0027 (Toms), EA/2006/0017 (Guardian), Awareness Guidance 16, Awareness Guidance 3, EA/2007/0041 (Hargrave), EA/2005/0026 and EA/2005/0030 (Hoqan)
• Contact: EW/GF
• Date: 14/11/2008
• Policy Reference: LTT67
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

The interest in principle in protecting information acquired during police investigations should be recognised when considering the public interest in maintaining the exemption under s30(1). This will be particularly pertinent where an investigation is still open.

This can also apply under s31, for example, where information normally held by the police is held by another authority.

Further Information

Toms v the Information Commissioner

The Tribunal in the case of Toms v The Information Commissioner suggested that it recognised that there is a public interest in the protection of investigations by noting that in considering the public interest test it had had regard to the White Paper which preceded the introduction of the 2000 Act*. It highlighted the following extract:

“[freedom of information] should not undermine the investigation, prosecution or prevention of crime, or the bringing of civil or criminal proceedings by public bodies. The investigation and prosecution of crime involve a number of essential requirements. These include the need to avoid prejudicing effective law enforcement, the need to protect witnesses and informers, the need to maintain the independence of the judicial and prosecution processes, and the need to preserve the criminal court as the sole forum for determining guilt.”(para 7)

Guardian v The Information Commissioner and Avon and Somerset Police

In the case of Guardian v The Information Commissioner and Avon and Somerset Police, the Tribunal similarly acknowledged, “the interest in principle, recognised by the exemption applying to s30(1), in protecting information acquired, often in confidence, in police investigations.”

It should be noted that the Tribunal’s wording here does not restate the actual wording of s30, though the implication appears to be that it reflects the sense and purpose of the exemption provided by that section.

This interest in principle is such that even in the two cases above — where the information requested in one case was the number and location of mail storage boxes broken into in a specified time and area, and in the other the closed police file relating to a 27 year old murder investigation — it overrode the public interest in disclosure.

In the Guardian/Avon & Somerset case, the Tribunal identified minimal public interest in either the maintenance of the exemption or the disclosure of the information requested. With all else being equal, therefore, it concluded that the interest in principle in protecting information acquired in police investigations was the overriding factor.

It is therefore clear that if the principle was considered an overriding factor in cases with the level of significance or sensitivity described above, then in cases where information pertaining to an open police investigation is requested, the public interest in maintaining the exemption will be considerable.

It should be noted that the Commissioner’s stance in relation to where factors in the public interest balance are equal, remains that there is an assumption in favour of disclosure as per LTT46. Although the Tribunal identified that there was minimal public interest in either maintaining the exemption or the disclosure of the information, the Commissioner interprets that the Tribunal gave more weight in this case to the public interest factors for maintaining the exemption which tipped the balance in favour of maintaining the exemption.

DTI v the ICO

The Tribunal in the case of DTI v the ICO, which considered a request for a information relating to an investigation conducted under the Companies Act 1985, also highlighted that, “the Act has recognised that there is a public interest in recognising the importance of the proper conduct of investigative processes and procedures carried out by public authorities, particularly those which might lead to criminal proceedings, and moreover that in relation to such procedures and possible proceedings, the maintaining of confidential sources must be respected

Hargrave v the Information Commissioner and the National Archives

The line is also applicable where information acquired during police investigations is transferred from the police to another public authority as illustrated by the case of Hargrave v the Information Commissioner and the National Archives, where the applicant was refused information relating to an investigation of an unsolved murder in 1954. The case demonstrates that similar principles may apply when considering the public interest balance under s31 (if the police had held this information they could have claimed the exemption s30(1)(b)).

The Tribunal were clear that the information acquired in the investigations should remain protected. The Tribunal thought “it very likely that disclosure of this information would prejudice the investigation of the murder and the fair trial of an accused if such a trial were to take place now or in the reasonably near future” (paragraph 33). The Tribunal went onto say that the “critical issue... is whether there is indeed any substantial likelihood or the murderer being detected and/or a prosecution being undertaken” (paragraph 34) and were persuaded by the further evidence they heard in the private session that “there was a significant possibility” of a future identification and prosecution of the killer, “such as to satisfy the test imposed by section 31(1), as explained in Hogan” (paragraph 37).

(*) Your Right To Know: The Government’s Proposals for a FOI Act (Cm.3818, 11 December 1997)