FOI/EIR FOI Section/Regulation s2, s30(1) Issue Public interest factors for s30
Line to take:

When considering the application of s30(1), consideration should be given to protecting what is inherent in the actual exemption – the effective investigation and prosecution of crime, which requires:

  • the protection of witnesses and informers to ensure people are not deterred from making statements or reports by fear it might be publicised;
  • the maintenance of independence of the judicial and prosecution processes;
  • preservation of the criminal court as the sole forum for determining guilt;
  • allowing the investigating body space to determine the course of an investigation;
  • information that deals with specialist techniques

With the above underpinning the consideration of s30(1), when weighing up the public interest test in relation to the exemption, the following factors (amongst others) should be considered:

  • the stage or stages reached in any particular investigation or criminal proceedings;
  • whether and to what extent the information has already been released into the public domain;
  • the significance or sensitivity of the information;
  • in relation to significance of the information, any available independent evidence; and
  • the age of the information.

Level of interest to the public and distress to individuals associated with the case are not relevant factors.

Further Information:

In the case of Digby-Cameron v ICO and Bedfordshire Police and Hertfordshire Police, the Tribunal stated that in considering the public interest test, the starting point is to focus on the purpose of the relevant exemption. The Tribunal asserted that the general public interest served by s30(1) is the effective investigation and prosecution of crime, which inherently requires, in particular:

  • the protection of witnesses and informers to ensure people are not deterred from making statements or reports by fear it might be publicised;
  • the maintenance of independence of the judicial and prosecution processes;
  • preservation of the criminal court as the sole forum for determining guilt (paragraph 14).

This starting point was also reflected in the case of Kelway v ICO and Northumbria Police, where the public authority highlighted that disclosure of information withheld under s30 may have the effect of (i) deterring individuals from co-operating with the police in the course of an investigation, in line with (a) above and further, (ii) revealing information about the way in which the police investigate crime, in such a way as to hinder the performance of their duties (paragraph 68). The Commissioner also considers that the additional factors of allowing the investigating body space to determine the course of an investigation and protecting information that deals with specialist techniques are inherent to considering the application of s30.

In Toms v The Information Commissioner, the IT stated, with regard to the consideration of the public interest in relation to s30(1) that, “In striking the balance of interest, regard should be had, inter alia, to such matters as the stage or stages reached in any particular investigation or criminal proceedings, whether and to what extent the information has already been released into the public domain, and the significance or sensitivity of the information requested” (paragraph 8).

These factors have also considered in a number of subsequent IT cases, as detailed below.

Stage of investigation

In terms of the stage reached in an investigation, it should be noted that Tribunal has also recognised the interest in principle in protecting information acquired during police investigations. This suggests that the public interest in maintaining the s30 exemption in a case where a police investigation is open will be considerable, and may override all other factors.  See also LTT67.

Significance

Although no reference was made to the Toms case by the Tribunal in the case of Guardian v The Information Commissioner and Avon and Somerset Police, its discussions mainly centred on the significance of the information in terms of what it implied about the integrity and probity of the investigation and in the scrutiny of the criminal justice system. The information requested was the file on the Jeremy Thorpe case, which resulted in 1979 in Thorpe (the leader of the Liberal Party from 1967 to 1976) being acquitted of the charge of conspiracy and incitement to murder.

The Tribunal disclosed in its decision that the requested information in this case gave no suggestion that the investigation, “lacked vigour, thoroughness or independence,” or that, ”the police had “pulled their punches” because of the eminence of one of the suspects.” It stated that if there had been such an implication, however, this would have been a decisive argument in favour of disclosure. Reiterating these points, it concluded, “if there were evidence to support a suspicion that a prominent public figure had been shown improper favour, there would be an overwhelming interest in telling the public.”

Taking into account the outcome of the case, the Tribunal in the Guardian v The Information Commissioner and Avon and Somerset Police noted that, “there will always be a public interest in a possibly unjustified conviction. Save in the most exceptional case, there will be no comparable public interest in re-examining acquittals.” (para 37)

Independent evidence

In the case of Keely v Information Commissioner, the context of the information request was that the complainant was an investor in a publicly listed company and believed that he had been defrauded by its directors. He requested an investigation by DBERR’s (then DTI) Complaints Investigation Division and when his attempts to persuade DBERR to investigate failed, he consequently lodged a complaint with the Parliamentary Ombudsman.  His request to DBERR related to information concerning its response to his complaint about the activities of the company, including internal correspondence and communications with other public authorities; DBERR refused to provide the information it held, citing s30.

Similar to the Guardian case, the Tribunal took into account the significance of the information in the context of the investigation; it considered the fact that the Parliamentary Ombudsman had investigated the complaint from the appellant on how the PA had conducted their investigation and had concluded that it was “satisfied that their [DBERR’s] enquiries have been completed broadly within their own timescales, under appropriate supervision, and that their officers have demonstrated their willingness to examine your [the appellant’s] case in considerable detail” (paragraph 1). In this case, in considering the PIT in the application of s30, the independent evidence demonstrated that nothing in the PA’s conduct of its investigation created any concern, and when considered in conjunction with the other factors, it consequently enhanced the argument that the public interest in maintaining the exemption outweighed the public interest in disclosure. The Tribunal concluded that although “the publication of information on the individual steps taken in the course of the… investigation would serve to inform public debate into the quality and effectiveness of its work”, on balance, the significance of the information was slight, and was “reduced by the fact that the standard of the Department’s work has already been considered by the Ombudsman” (paragraph 16).

When assessing the significance of the information, it may be appropriate to take into account the results of any independent investigation/evidence if this demonstrates that the significance is reduced or increased.  In contrast to the Keely case, there may be circumstances where independent evidence could be a factor in favour of disclosure.

The issue of the significance of independent investigations/complaints across several exemptions will also be considered in an LTT to be developed on independent regulatory systems and independent reviewing.

Age of the information

In the Guardian v The Information Commissioner and Avon and Somerset Police case, the Tribunal also took into account the age of the information, which was not considered in the Toms case. It stated that, “The passage of time was a double-edged argument, whichever side wielded the sword. It probably reduced the risks of prejudice to future investigations but it similarly weakened the legitimate public interest in knowing more of the background facts.” (It should be noted that s30 is not a prejudice based exemption). Although this argument has some merit, the Commissioner does not believe that in all circumstances that the older the information is the less risk of prejudice there is  - there is always the possibility that the status of an investigation can change over time and that information has the potential of becoming relevant again. In the context of the assumption in favour of disclosure under FOIA, a public authority would have to demonstrate that there is a realistic prospect of a case being reopened and that the risk of prejudice still exists. If there was no evidence of prejudice occurring, there would be little public interest in maintaining the exemption; however the public interest in transparency and understanding the full picture of the investigation (and potentially although not a weighty factor, consideration of investigations from a historical perspective) would remain.

Non-relevant factors

It is generally understood that what is interesting to the public is not the same as the public interest (see LTT48). In considering the public interest in disclosure, the Tribunal in the Guardian case commented that there was little if any evidence of any interest in the matter; and that the key figure in the trial was no longer a public figure, who had made no attempt to seek a public role. This suggests that popular interest in a case might be considered by a Tribunal, but the Commissioner’s view is that this would usually be a non-relevant factor.

Finally, also in the Guardian v The Information Commissioner and Avon and Somerset Police case, the Tribunal stated that, contrary to one of the arguments identified by the Commissioner for maintaining the exemption, “distress to surviving participants in the trial is not an interest which this particular exemption is designed to protect.” This specific point reflects the general principle that only the particular public interest inherent in the exemption should be considered.

To note, in contrast, in the recent decision notice FS50121803, distress to those connected to the crimes was taken into consideration under s38.

 

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Source Details
IT

Toms / Royal Mail (19 June 2006)

Guardian / Avon & Somerset Police (6 March 2007)

Keely / DBERR (19 May 2008)

Digby-Cameron / Bedfordshire Police and Hertfordshire Police (28 January 2009)

Kelway (14 April 2009_

Related Lines to Take
LTT19, LTT14, LTT67, LTT100, LTT181
Related Documents

FS50072311 (Toms), EA/2005/0027 (Toms), FS50098767 (Guardian), EA/2006/0017 (Guardian), EA/2007/0113 (Keely) EA/2008/0023 & 0025 (Digby-Cameron), EA/2008/0037 (Kelway)

Awareness Guidance 16 , Awareness Guidance 3                                            

Contact EW / GF
Date 16/06/2009 Policy Reference

LTT20