Tribunal Upholds Law Enforcement Exemption in FOIA Case: Ciaran McClean v The Information Commissioner

Citation: [2024] UKFTT 219 (GRC)
Judgment on

Introduction

The case of Ciaran McClean v The Information Commissioner is a significant decision by the UK First-tier Tribunal (General Regulatory Chamber) on Information Rights. The case focused on an appeal against the Information Commissioner’s decision concerning a Freedom of Information Act 2000 (FOIA) request made to the Police Service of Northern Ireland (PSNI). The tribunal had to consider the balance of public interests regarding transparency and the prevention of potential harm from disclosing sensitive information that could lead to prejudice against crime prevention and detection.

Key Facts

  • The appellant, Ciaran McClean, lodged an FOIA request seeking information about meetings and communications between a named individual, the PSNI, and Galantas Goldmining Company over a specified period.
  • PSNI held some relevant information but refused to disclose it under section 31(1)(a) of FOIA, citing law enforcement concerns, and section 40(2), related to personal data.
  • The appellant contested PSNI’s refusal, prompting an internal review by the PSNI and ultimately a complaint to the Information Commissioner, who upheld PSNI’s decision.
  • An appeal was made to the First-tier Tribunal, with the appellant asserting a strong public interest in the disclosure of the information.

The Tribunal’s decision reiterated established legal principles and interpreted statutory provisions pertinent to FOIA, particularly concerning the “prejudice-based exemption.” Key principles and the corresponding case references included:

  • The identification of applicable interests within the exemption and the nature of the prejudice claimed, as per Hogan v Information Commissioner [2011] and Department for Work and Pensions v Information Commissioner [2017], which emphasize the relationship between potential disclosure and prejudice.
  • The necessity for the claimed risk of prejudice to criminal activity detection being “real, actual, or of substance.”
  • Evaluation of whether the prejudice could be likely caused by the disclosure, gauging the risk as real and significant.
  • Consideration of whether the public interest in maintaining the exemption outweighs the interest in disclosing the information.

The Tribunal applied the test discussed in Hogan and the Department for Work and Pensions v Information Commissioner to determine the engagement of section 31(1)(a) FOIA, concluding that operational details within the requested information were susceptible to facilitating criminal activity.

Outcomes

The Tribunal dismissed the appeal, endorsing the Information Commissioner’s and PSNI’s decisions to withhold the requested information under section 31(1)(a) FOIA. It agreed that:

  • The disclosure would provide operational policing details, which could potentially aid criminal activity.
  • The general and severe threat level at the time justified withholding sensitive information.
  • While acknowledging the public interest in transparency, the risk of harm to crime prevention and ensuring security took precedence.

Conclusion

In Ciaran McClean v The Information Commissioner, the key themes revolved around the application of the law enforcement exemption under the FOIA, the assessment of prejudice due to disclosure, and the weight of public interest in both transparency and non-disclosure. The Tribunal’s analysis closely followed jurisprudence and statutory guidance, ultimately reinforcing the view that protection against serious crime takes precedence over the public interest in accessing information. The decision demonstrates the delicate balancing act performed by the judiciary when FOIA rights intersect with law enforcement concerns. It underscores the extent to which the potential for substantive harm can justify the refusal of information requests under the FOIA framework.

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