ICO Decision Notice 50649981 Neil Wilby - V - North Yorkshire Police
ICO Decision Notice 50649981 Neil Wilby - V - North Yorkshire Police
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lnformatlon Commissloner's Offtce
2 The Commissioner decided that North Yorkshire Police does not hold
further undisclosed information in respect of parts 2,3 and 4 of the
request and that it has applied the section 42(1) FOIA exemption
appropriately to part 5 of the request.
3 The Commissioner does not require North Yorkshire Police to take any
steps to comply with the legislation.
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L2. NYP indicated on 6 September 2016 that any future requests regarding
Operations Rome and Hyson would be reviewed against section 14 FOIA.
NYP told the Commissioner that information requests by the
complainant, and others with whom he had been in communication, had
become especially burdensome. However, NYP did not rely on the
section 14(1) (Vexatious requests) FOIA exemption in this matter, and
so the Commissioner did not consider it in arriving at her decision.
13. The complainant was also concerned at the process used by NYP in its
internal revew of this matter which the Commissioner has considered in
the 'Other matters' section of this Notice.
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14. Section 1 FOIA states that anyone making a request for information to a
public authority is entitled to be informed whether that public authority
holds the information, and if so, to have the information communicated
to them.
15. The Commissioner is mindful, when she receives a complaint alleging
that a public authority has stated incorrectly that it does not hold the
requested information, that it is seldom possible to prove with absolute
certainty whether the requested information is held. In such cases, the
Commissioner will apply the normal civil standard of proof in
determining the case and will decide on the'balance of probabilities'
whether or not the information is held.
16. Part 2 of the request was for:
"2. Name(s)/rank(s) of Senior Investigating Officer(s) ffor Operation
Rome]".
L7. On 6 September 2016 NYP told the complainant the names of the gold
commanders ultimately responsible for the conduct of both of its
Operation Rome and Operaton Hyson operations. NYP also said that, for
Operation Rome, the senior investigating offcer (SIO) role had been
performed by the Head of Professional Standards and a detective
superintendent but withheld their names relying on the section 40(2)
FOIA exemption. On 19 October 20L6, following an internal review, NYP
revised its position, telling the complainant that Operation Rome had
not met the criteria for a SIO to have been appointed and that there had
been no SIO. NYP said that therefore no information was held that came
within the scope of this part of the request.
18. The complainant said that it had come to his notice that another
member of the publc had been told by NYP that there had been a SIO
for Operation Rome who had been of Detective Inspector rank. He was
concerned at the apparent discrepancy.
19. The complainant told the Commissioner that Operation Rome had been
a three year investigation costing over 400,000. It has been confirmed
by NYP that a senior gold commander was appointed. For an
investigation of this size and length, commanded by an officer of such
seniority, a SIO should have been appointed. Indeed, he argued strongly
that one was and that NYP's responses to his complaints were an
artifice.
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20. NYP told the Commissioner that the officer drafting its 6 September
20L6 response had been provided with inaccurate information. This had
been explained to the complainant in its letter reporting the outcome of
its internal review. In fact, there was no SIO assgned to this particular
investigation because the case had not met the relevant criteria. NYP
explained that a SIO was defined by the Murder Investigation Manual as
the officer in charge in cases of homicide, stranger rape, kidnap or other
complex investigations. NYP said it had explained this to the
complainant and provided him with the job titles of the officers in
charge, as well as confirming that there was no information held within
the scope of his request. There had not been a deliberate attempt to
mislead, but there had been an error stemming from erroneous
information received from police colleagues. Following her investigation
and detailed explanations from NYP, the Commissioner accepted that,
on a balance of probabilities, the requested information was not held.
2t. Parts 3 and 4 of the request were for:
"3. Policy log (sometimes described as the policy book)
4. Final investigation report (it is accepted that items 3. and 4. will be
redacted to protect exempted personal information)."
22. The initial response of NYP was to confirm that information within the
scope of the request was held but that it was being withheld relying on
the section 31 and 40 FOIA exemptions. Following the internal review,
NYP then said that there had been no policy log or final investigation
report. Accordingly, no information falling within the scope of the
request was held.
23. The complainant told the Commissioner that no plausible explanation
had been provided for the changed response; it had been, in effect,
swept under the carpet. He said it would be beyond incredible for a
police force to carry out Operation Rome with no such records. He added
that a policy log recorded key policing actions and the reasons for those
actions, and that there was now a greater emphasis within the police on
full and accurate record keeping within an investigation. He said it would
seem extraordinary if, after a complex, three year investigaton costing
f400,000, the police had not produced a final report.
24. NYP told the Commissioner that, in making ts initial response the
drafting officer had initially been told that there had been a final report
and that, although a policy log book had not been kept, a log had been
documented in the investigation log book. On that understanding, the
sections 31 and 40 FOIA exemptions had been applied.
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25. NYP said that, on revisiting this issue at internal review, it had realised
that there had in fact been no final report and that the only document
closing off the matter was a CPS advice, an entirely separate document.
The complainant had then been told that no information was held. NYP
had also recognised that there had been no policy log book and the
complainant had again been told that no information was held. Neither
of these documents had been created by NYP as the case did not meet
the criteria for a SIO to be appointed and so those documents were not
needed. NYP told the complainant that an error had been made, but no
further explanation had been offered. Following her investigation and
after receiving detailed explanations from NYP, the Commissioner
accepted that, on a balance of probabilities, the requested information
was not held.
26. NYP said that it now recognised that a more detailed explanation would
have assisted the complainant. The Commissioner agrees.
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29. There are two categories of legal professional privilege: advice privilege,
where no litigation is contemplated or pending; and litigation prvilege,
where litigation is contemplated or pending.
30. The complainant said that NYP had offered no rationale to show that
legal professional privilege applied n relation to the cost information. He
said that no information was held by NYP to support the proposition that
formal legal advice had either been sought or given in respect of the
information requested. He said that the total sum calculated had been
disclosed as had the hourly rates of staff and the total number of hours
allegedly worked by them. He added that any legal privilege that existed
had been waived.
31. The complainant said, correctly, that NYP had not said whether it was
relying on advice or litigation privilege. He said that the information
sought was 'back of the envelope' accounting, and as such could only be
withheld relying on advice privilege and not litigation privilege.
32. NYP told the Commissioner, with supporting evidence, that it relied on
litigation privilege. The information requested had been drafted for the
purposes of litigation which was very clearly being contemplated at the
time of its compilation and there had been a real likelihood of the
litigation taking place. The information had been drafted by a NYP
lawyer for the purposes of providing advice to the Chief Constable. NYP
said that legal privilege had not been waived.
33. The Commissioner saw that NYP was relying on litigation privilege and
that relevant litigation was contemplated at the time of compiling the
information. The Commissioner saw no reason to accept that the
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34. Having considered the representations from both parties and reviewed
the withheld information in the light of those representations, the
Commissioner concluded that the section 42(1) FOIA exemption had
been engaged correctly. She therefore proceeded to consider the
balance of the public interest.
38. The Commissioner recognises the strong public interest in ensuring that
there is appropriate openness, transparency and accountability by public
authorities which disclosure would support. She has also had regard for
the view of the complainant that significant relevant background
information had already been disclosed implying that little harm could
result from disclosure but, conversely, also that further disclosures now
would add little to public understanding.
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39. The Commissioner recognises that the general public interest inherent in
this exemption will always be strong due to the importance, in
communications between a legal adviser and client, of ensuring that the
client can have access to full and frank legal advice, which in turn is
fundamental to the administration of justice. This has been recognised
in a succession of Tribunal decisions, notably in the case of Bellamy
(Bellamy v Information Commissioner & the Secretary of State for Trade
and Industry (EA/2005/0023)) where the Tribunal said that; "there is a
strong element of public interest inbuilt into the privilege itself. At least
equally strong countervailing considerations would need to be adduced
to override that inbuilt public interest".
40. In Bellamythe then Information Tribunal described legal professional
privilege as, "a fundamental condition on which the administration of
justice as a whole rests". The courts have recognised, as has the
Commissioner, that inappropriate disclosure of legal advice would
undermine this important common law principle. It is therefore relatively
uncommon for the public interest balancing test applied to the section
42 FOIA exemption to result in disclosure.
4t. In this matter the Commissioner has seen that the legal professional
advice given was still 'live' at the date of the request. Having reviewed
its content, she has seen no significant public interest inherent in
disclosing the withheld information but a weighty public interest in
continuing to withhold it. For the avoidance of doubt, the Commissioner
makes clear that, in her reading of the withheld information, she saw
nothing to raise any concerns about possible wrongdoing by NYP.
Accordingly the Commissioner decided that the information had been
withheld correctly by NYP.
Other matters
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20L6. NYP said that the review had been delayed as the complainant
had made several later additions to his review request of B September
20t6. The last of these had been made on 1 October 2016; the
response had been completed on 19 October 20t6. The elapsed time
was in excess of the 20 working days recommended by the
Commissioner as a reasonable time in which to conduct most reviews,
although t did not exceed the 40 working days that she considers to be
the maximum delay that would be reasonable. The delay has been noted
by her as part of her work in monitoring the performance of Nyp.
44. The complainant was also concerned that the officer who carried out the
review had not been independent, saying that she was also a witness in
a civil claim brought by him under the Data Protection Act 1998 against
NYP.
45. NYP said that "due to the complexity of the issues and the history of the
requestor it was felt that the Police Lawyer was best placed to deal with
the Internal Review". NYP explained that a legal officer had responded
to the initial request but that a police lawyer, another member of its
small legal team, had undertaken the subsequent review.
46. The Commissioner expects that a public authority will take an internal
review as an opportunity for a fresh look at its handling of a matter
including application of any FOIA exemptions. This is best done by
someone with no previous involvement in the matter being reviewed, or
in connected issues. However, she recognises that this will not always
be possible, especially within smaller public authorities and, as here, in
instances where large numbers of information requests and requests for
reviews have been made to a public authority by a complainant.
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Right of appeal
47. Either party has the right to appeal against this decision notice to the
First-tier Tribunal (Information Rights). Information about the appeals
process may be obtained from:
chamber
48. If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website.
49. Any Notice of Appeal should be served on the Tribunal within 28
(calendar) days of the date on which this decision notice is sent.
Signed
Jon Man
Group Manager
fnformation Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SKg sAF
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