Gloucestershire Police - Freedom of Information review

Update 26th September 2014; I have now made a complaint to the Information Commissioner

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Back in May, the 12th to be exact, I made a Freedom of Information request to Gloucestershire Police for details of the criminal investigation relating to Carmarthenshire County Council.

The investigation followed the Wales Audit Office public interest reports concerning the unlawful libel indemnity and pension payments and also followed a request for a police investigation from Plaid MP Jonathan Edwards.

Gloucestershire Police conducted the investigation as the local force, Dyfed Powys were considered to be to 'close' to the local authority.
The investigation was concluded in early May.

The original Freedom of Information request was for;

1. The final report following the conclusion of the investigation
2. A list of any persons interviewed, and /or job titles, and whether any of these were interviewed under caution
3. Whether or not the CPS were involved and if so, any relevant correspondence.
4. Correspondence between Gloucestershire Constabulary and Carmarthenshire County Council
5. A list, or summary, of all documents in either paper or electronic form which formed part of the investigation.

I was subsequently informed that the investigation did not involve any correspondence with Carmarthenshire Council, nor did they speak to anyone at County Hall and there was no involvement with the Crown Prosecution Service.
In addition, the list of documents used in the investigation, and the final report was withheld. The full original response can be seen here (pdf)

On the 17th June I asked for an internal review of their response. I said;

Points 1 and 5 were considered to be exempt from disclosure. As I said in my request I would have been satisfied with a list of individual documents rather than the documents themselves. I would like you to review your decision and reconsider whether any/all disclosure is possible either in full or as a list. 

As the investigation has concluded and no criminal findings were made, please also review your decision not to disclose the final report. 

With reference to my whole request, this investigation involved two public bodies and I would like to add that transparency is of the utmost importance

The response to this review, another refusal, finally arrived this morning. It can be read in full here (pdf)

Far from deciding to release either the list of documents or the final report, further 'exemptions' have been applied and the initial exemptions revamped.

When considering whether or not to release information, a public body considers three steps; factors favouring disclosure, factors favouring non-disclosure and then it applies the public interest 'balance' test. In other words, it weighs up the pros, the cons.

The response to my original request used a Section 30 exemption which, to put it simply, decided that if the list of documents and the final report were released it might alert potential criminals to the manner of police investigations and there is a danger that they might reduce their offending to an undetectable level.
The 'balance' test was then applied and concluded that;

'To disclose the requested information would hinder the prevention and detection of crime and lead to criminals avoiding detection. It could also undermine the effectiveness of procedures used by other agencies to prosecute offenders'. 

The response to the review, received today, states that in respect of this 'balance' test, 'some of the factors were not appropriate given the nature of the information requested'

The revised exemption now reads thus;

Section 30 – Factors favouring disclosure
Disclosure of this information would provide the public with an awareness of how the Police Service undertakes investigations and enable them to satisfy themselves that an investigation has been thoroughly undertaken.  

Section 30 – Factors favouring non-disclosure
Disclosure of information relating to the matters considered by Police as to whether there has been any criminal wrongdoing would involve the disclosure of a substantial amount of information relating to actual or potential civil litigation proceedings. 

Disclosure under Freedom of Information is disclosure to the world at large and it is not in the public interest to allow the open dissemination of information relating to civil proceedings, which is not already in the public domain. 

Balance test
The Police Service is charged with enforcing the law, preventing and detecting crime and protecting the communities we serve and there is a public interest in the transparency of policing operations to ensure investigations are conducted appropriately. 

However, the Police are responsible for matters falling within the jurisdiction of the criminal law and it is firmly against the public interest for the Police to disclose information relating to civil proceedings in which the Police are not involved and have no responsibility in terms of the outcome. 

Disclosure in relation to civil proceedings is subject to the procedures and rules of the Civil Courts and that function should not be potentially usurped by the Police. 

In view of the above, it is our opinion that the public interest in maintaining the exemption outweighs the public interest in disclosure.

Two further exemption have also been applied, Section 40 which concerns third party personal data (this does not require a public interest test) and Section 42, Legal Professional Privilege (LLP) which protects correspondence between a client and their lawyer. In this particular case, the public interest test failed and the LLP exemption succeeded. Quite who, or which body was claiming LLP I'm not sure.

What surprises me is the revised Section 30. What 'actual or potential' civil litigation proceedings are being referred to? The libel trial? Any future civil action by the Wales Audit Office? Something else? And what information, relating to any of these, is not already in the public domain? The response seems suggests that to release the information could jeopardize the outcome of civil litigation proceedings.

As for the answers to those questions, your guess is as good as mine.

The full thread of the request and review can be read here and my earlier post on the subject, here.