Tribunal Upholds Decision on Police Information Disclosure Under FOIA Privacy Exemption

Citation: [2023] UKFTT 916 (GRC)
Judgment on

Introduction

The case of Nigel Rawlins v The Information Commissioner engages with core legal principles pertaining to information rights under the Freedom of Information Act 2000 (“FOIA”), the UK General Data Protection Regulation (“UK GDPR”), and the intersection with human rights and expectations of privacy. The First-Tier Tribunal (General Regulatory Chamber) undertakes an analysis of whether Sussex Police (“SP”) correctly applied an exemption to a request for information under FOIA, specifically engaging section 40(5B) of FOIA, in relation to disclosing personal data about an identifiable individual.

Key Facts

The appellant, Nigel Rawlins, sought information from Sussex Police on disciplinary actions taken against a former officer whose conduct he alleged was hostile, intimidating, and violent. The SP refused to confirm or deny whether they held such information. The Information Commissioner’s Decision Notice (“DN”) supported SP’s application of the exemption under s40(5B) of the FOIA. The appellant challenged this decision, arguing that there is a public interest and a duty of care for the police to release information potentially affecting public safety.

Several legal principles are at play here:

  1. Section 40(5B) FOIA: This section permits a public authority to neither confirm nor deny holding information if doing so would itself reveal personal data about an identifiable individual, contravening one of the data protection principles.

  2. Data Protection Principles under the UK GDPR: The principles emphasize lawful, fair, and transparent processing of personal data. Confirming or denying the hold of information must fulfill a lawful basis under Article 6(1) of the UK GDPR.

  3. Police (Conduct) Regulations: These regulations, particularly post-2015, underscore public accessibility and transparency in police misconduct proceedings, though they also allow for nondisclosure under certain conditions determined by the Legally Qualified Chair of respective proceedings.

  4. Legitimate Interest and Expectation of Privacy: Weighing the legitimate public interest against the individual’s rights and expectations of privacy is a fundamental balancing act in such cases.

  5. Human Rights Act: The appellant invokes Article 2 – ‘Right to life,’ arguing that the apparent withholding of information is contrary to the obligations under the Human Right Act to take proactive steps to protect life.

Outcomes

The Tribunal supported the Information Commissioner’s decision, finding that section 40(5B) FOIA was appropriately applied. The key outcomes include:

  • Acknowledgment that there is a legitimate interest in SP’s accountability and transparency regarding disciplinary measures.
  • Affirmation that an individual not currently serving as an officer has a reasonable expectation of privacy, and confirming or denying such information could cause undue distress.
  • Recognition that the public interest argued by the appellant is insufficient to override the rights and freedoms of the individual in question.
  • Emphasis on the fact that the legitimate interest must be substantial and that disclosure must be necessary to fulfill said interest.

Conclusion

The tribunal’s unanimous decision in Nigel Rawlins v The Information Commissioner reinforces the delicate balance between public interest in transparency with regard to police conduct and the right to privacy of individuals, especially regarding personal data which, if disclosed, could lead to unwarranted consequences.

In this instance, the Tribunal clarified that the protections afforded by the amended Police (Conduct) Regulations and principles of the UK GDPR provide a framework within which expectations of confidentiality must be navigated. The case serves as a pertinent illustration of the nuanced application of FOIA exemptions in the context of personal data and emphasizes the requirement of a tangible and overriding legitimate public interest to warrant breach of an individual’s expectation of privacy.