Tribunal Upholds South Yorkshire Police's Right to Withhold Hillsborough Compensation Figures for Health and Safety Reasons

Citation: [2024] UKFTT 64 (GRC)
Judgment on

Introduction

In the decision of “The Chief Constable of South Yorkshire Police v The Information Commissioner & Anor: UKFTT-GRC 2024 64,” the First-tier Tribunal (General Regulatory Chamber) for Information Rights examines the delicate balance between the public interest in transparency and individuals’ rights to privacy and protection of mental and physical health. This case pivots on the interpretation of the Freedom of Information Act (FOIA) 2000, with particular scrutiny of sections 38 and 42.

Key Facts

  • The Chief Constable of South Yorkshire Police (SYP) appealed a decision by the Information Commissioner that they were not entitled to rely on sections 38 and 42 FOIA to withhold information requested about compensation payouts following the Hillsborough Disaster.
  • The decision centers on a request made by Rob Waugh for the total amount paid out as compensation to victims of the Hillsborough Disaster.
  • After initial refusals on various grounds, including personal information (s.40) and health and safety (s.38), the matter was brought before the Tribunal.
  • SYP claimed a disclosure under FOIA could harm the mental health of individuals involved and was thus exempt under sections 38 and 42.

Section 38 - Health and Safety

The Tribunal opined that the exemption under section 38 was engaged for the following reasons:

  • Release and media reporting of the compensation figure may lead to speculation about the amounts individual claimants received, causing psychological distress or envy.
  • The information being reported on could reopen painful issues and exacerbate mental health conditions.
  • The expert psychiatric opinion established a causal link between disclosure of the compensation figure and potential harm to individuals, satisfying the exemption’s requirement.

Section 42 - Legal Professional Privilege

While it was ultimately unnecessary to decide on section 42 due to a ruling under section 38, the Tribunal noted that it would have sided with the Commissioner that section 42’s legal professional privilege did not apply. This conclusion centers on the nature of the compensation settlement figures, which do not constitute privileged legal communication as per established case law (“BGC Brokers LP and others v Traditions (UK) Ltd and others [2019] EWCA Civ 1937”).

Outcomes

The Tribunal determined the following:

  • The exemption under section 38 was engaged due to the potential harm to individuals’ mental and physical health if the compensation figure was disclosed.
  • Disclosure of the requested information was outweighed by the public interest in protecting the health of the affected individuals.
  • The public authority was entitled to withhold the requested information.
  • The appeal was allowed, and a substitute decision notice was issued by the Tribunal in favor of the Chief Constable of South Yorkshire Police.

Conclusion

In balancing the scales of justice, the Tribunal emphasized the critical nature of both public interest and the safeguarding of individuals’ mental and physical well-being. The case underscores the weight given to the testimony of expert professionals in evaluating the potential consequences of releasing sensitive information. In this instance, the predicted harm to vulnerable individuals took precedence over the public’s right to transparency and led to the upholding of the exemption under section 38 of the FOIA. This decision is indicative of the broader jurisprudential trend on prioritizing the protection of health and safety over public access to information in certain instances.