Tribunal clarifies criteria for withholding information in Police Ombudsman case under FOIA

Citation: [2023] UKFTT 900 (GRC)
Judgment on

Introduction

In the matter of the Police Ombudsman for Northern Ireland v The Information Commissioner & Anor, the UK First-tier Tribunal (General Regulatory Chamber) heard an appeal concerning the application of Section 44 of the Freedom of Information Act 2000 (FOIA), in relation to the withholding of information based on Section 63 of the Police (Northern Ireland) Act 1998. This case provides insight into the interpretation of statutory provisions regarding prohibited disclosure of information and the Ombudsman’s functions.

Key Facts

The Police Ombudsman for Northern Ireland (PONI) appealed against a decision notice which determined that PONI was not entitled to rely on Section 44(1)(a) FOIA to withhold requested information about its engagement with the makers of a documentary titled ‘No Stone Unturned’. The Commissioner initially determined that the withheld information did not fall under the statutory bar of Section 63 of the Police (Northern Ireland) Act 1998, i.e., information received in connection with the Ombudsman’s functions.

The tribunal focused on several critical legal principles:

  1. Information Exempt by Statute (Section 44 FOIA): Section 44 provides that the information is exempt if its disclosure is prohibited by any other enactment. It constitutes an absolute exemption, not subject to the public interest test.

  2. Received Information (Section 63 of Police Act 1998): This section creates a prohibition on the disclosure of information the Ombudsman “received” in connection with any of its functions, subject to a penal sanction.

  3. Statutory Interpretation: The tribunal emphasized considering the ordinary meaning of the statutory text within the full context of the statute and its historical, social, and legal background.

  4. Presumption Against Doubtful Penalisation: When interpreting a penal statute, if ambiguity exists, the interpretation that avoids imposing a penalty should prevail.

  5. Nexus of ‘In Connection With’: The interpretation of the phrase ‘in connection with’ is essential as it determines whether information is connected sufficiently to the Ombudsman’s functions to trigger the prohibition on disclosure in Section 63.

Outcomes

The tribunal partly allowed the appeal, holding that:

  1. Information Received: Only information that the Ombudsman ‘received’ which includes or is drawn from third-party information, is covered under Section 63.

  2. Functional Connection: To qualify as ‘received in connection with’ a PONI function, the provided information must have a nexus to a PONI’s function that is more than merely remote.

  3. Exemptions Application: Documents deemed by the tribunal as falling within the scope of FOIA Section 44, due to being covered under Section 63 of the Police Act 1998, were identified in a closed annex to avoid jeopardizing the purpose of the protections intended by the statute.

  4. Additional Exemptions Raised: PONI was also permitted to raise additional exemptions (Sections 30 and 42 FOIA), which would be considered in a separate future hearing.

Conclusion

This Tribunal decision underlines the intricate balance required when interpreting statutes associated with the disclosure and withholding of information. It highlights the specific needs of the Ombudsman’s operations in Northern Ireland’s unique socio-political context. The detailed analysis of the term ‘received’ along with the phrase ‘in connection with’ serves as guiding points for similar adjudications on information exemptions under FOIA, signifying a cautious approach where penal implications may arise. Additionally, the ruling anticipates the need for circumspect handling of sensitive information, even within the public’s right to information.

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