Andrew Duncan v The Information Commissioner & Anor
[2024] UKFTT 297 (GRC)
Thomas Edward Miles Fairbairn v The Information Commissioner
4 September 2024
[2024] UKFTT 792 (GRC)
First-tier Tribunal
Someone asked the police for old files about their mother's death. The police wouldn't say if they had the files, claiming they didn't have to. A judge said the police were wrong, and must now say whether they have the files.
Key Facts
- •Appeal concerning three Freedom of Information Act 2000 (FOIA) requests by Thomas Edward Miles Fairbairn regarding his mother's 1977 death.
- •Requests related to Northumbria Police's investigation files.
- •Northumbria Police neither confirmed nor denied holding the information, citing FOIA exemptions.
- •The Information Commissioner (ICO) upheld Northumbria Police's decision.
- •Appeal involved closed material under Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.
- •Significant delays by Northumbria Police in responding to requests.
- •The Tribunal found procedural errors but determined the appeal based on the duty to confirm or deny.
Legal Principles
Duty to confirm or deny information requests under FOIA Section 1(1)(a).
FOIA
Section 30(3) FOIA: The duty to confirm or deny does not arise if information is exempt under Section 30(1), subject to a public interest balance.
FOIA
Late reliance on exemptions under FOIA is permissible, even before the Tribunal (McInerney v IC and Department for Education [2015] UKUT 0047).
McInerney v IC and Department for Education [2015] UKUT 0047; Information Commissioner v Home Office [2011] UKUT 17
Public interest test under Section 2(1)(b) of FOIA, balancing public interest in maintaining exemptions against public interest in disclosure.
FOIA
Procedural fairness in handling appeals with closed material (Barrett v ICO [2024] UKUT 107 (AAC)).
Barrett v ICO [2024] UKUT 107 (AAC)
Outcomes
Appeal allowed.
Northumbria Police's reliance on Section 30(3) FOIA to avoid confirming or denying information was deemed an improper exercise of discretion. The public interest in disclosing whether information was held outweighed the interest in maintaining the exemption, given the age of the case and lack of specific harm identified.
Northumbria Police ordered to issue a fresh response to information requests.
Compliance with the duty to confirm or deny under FOIA Section 1(1)(a) is required. Disclosure of requested information is mandated unless other FOIA exemptions apply.