Tribunal Rules on Disclosure of Historical Police Protection Data Under FOIA Exemptions

Citation: [2024] UKFTT 1 (GRC)
Judgment on

Introduction

In the case of Dr Andrew Lownie v The Information Commissioner & Ors, the UK First-tier Tribunal (General Regulatory Chamber) was presented with an appeal concerning the exemption of certain historical information requested under the Freedom of Information Act 2000 (“FOIA”). The case centred on the balance between the public interest in disclosing historical police protection data and the potential risk such disclosure could pose to law enforcement activities, as well as the privacy rights of individuals. The Tribunal’s analysis navigated through exemptions concerning law enforcement and personal data under sections 31(1)(a)-(c) and 40(2) of the FOIA, respectively.

Key Facts

Dr Lownie, a historian and author, requested access to a National Archives’ file bearing information on police protection from 1929-1939. This request was refused on the grounds that disclosure could potentially prejudice law enforcement interests and involve personal data processing incompatible with data protection principles. The appeal was thus centred on whether the exemptions under sections 31 and 40 of the FOIA applied.

There were two key statutory exemptions at issue in this case:

Section 31: Law Enforcement Exemption

Under s.31(1) of the FOIA, information exempted cannot be disclosed if it would likely prejudice law enforcement interests. The exemption is prejudice-based and requires a demonstration of:

  • Actual engagement with the interests outlined in the section (e.g., the prevention or detection of crime).
  • Real or of substance prejudice.
  • A causal link between disclosure and the harm.
  • Likelihood of said harm.

The Tribunal paid deference to the views of public authorities specializing in national security, such as RaSP (Royalty and Specialist Protection Unit), upholding the principle that specialized bodies possess particular sensitivities and insights into matters of national safety.

Section 40: Personal Data Exemption

The s.40(2) exemption pertains to personal data under FOIA, exempting information if its disclosure violates data protection principles, particularly under the UK General Data Protection Regulation (UK GDPR). It considered whether disclosure was necessary for the legitimate interests pursued by a controller or third party and whether such interests were overridden by the rights of the data subject.

The Tribunal fully assessed the information, including under a CLOSED material procedure, and allowed Dr Lownie’s appeal in part, ordering the requested information be disclosed except for specific exempted elements. Despite the concerns of the Metropolitan Police Service (MPS) and the severity of potential risks, the Tribunal found the majority of the historical information lacked the contemporary relevance necessary to attract the s.31 exemption. Significant deference to the expertise of RaSP was applied, but the Tribunal nonetheless independently examined the merit of the risks associated with the disclosure. However, the Tribunal upheld the s.40 exemption relative to a specific letter deemed to contain sensitive personal data.

Outcomes

The Tribunal concluded:

  • The information requested should largely be disclosed, acknowledging the public interest in transparency.
  • The exemptions claimed under s.31(1)(a)-(c) were not wholly applicable given the historical nature of the information and its presence in the public domain through other previously disclosed records.
  • A specific letter remained exempt under s.40 due to concerns over the disclosure of sensitive personal data.

Conclusion

In Dr Andrew Lownie v The Information Commissioner & Ors, the UK First-tier Tribunal carefully balanced the interests between transparency and open governance against the potential risk to law enforcement efficacy and individual privacy rights. Historical context, public domain status, respect for public authority expertise, and data protection principles weighed significantly in the Tribunal’s ruling. This decision underscores the Tribunal’s commitment to upholding FOIA’s intent while ensuring that legitimate exemptions for law enforcement and personal data are not negated. It affirms the Tribunal’s role in performing thorough and careful analysis when considering the merits of FOIA-related appeals.

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