(Update 1st Jan 2015; The ICO has now published the decision notice which can be read in full here)
A couple of months ago I contacted the Information Commissioner and challenged the decision by Gloucestershire police not to disclose documents used in the criminal investigation into Carmarthenshire County Council. The investigation was over the pension and libel indemnity scandals relating to the chief executive.
Incidentally, contents of the various responses suggests that the main focus of police attention was the libel indemnity rather than the pension scam.
The Commissioner has issued a decision and agreed with the police...or the council. I'm not sure which, the lines are a little blurred.
Anyway, the original response from the police back in May, after the criminal investigation had been dropped, revealed that no one had been interviewed during the three month investigation and there had been no correspondence with the council. I could go no further with that, as they were telling me there was no information to be had.
I had also asked for documents relating to the investigation as well, (even if it was just a list) including the final police report. They said, in a nutshell, that to disclose these documents could compromise the detection of crime by revealing police tactics.
I asked the police to review their decision due to the clear public interest that an investigation by one public body into another should be open and transparent, and in this particular case there had already been unlawful findings.
The police then changed tack and, without elaboration, said it was because it might prejudice ongoing or future civil proceedings. It was not the police's role to disclose documents which might prejudice civil proceedings.
As Gloucestershire Police refused to specify, even in general terms, what civil litigation they were referring to I asked the Information Commissioner to review their refusal under that particular exemption.
To be clear, other exemptions were used which the police could fall back on if this one failed. However, I pursued the point.
The police argued that the press release regarding the outcome of the investigation should "satisfy the public interest in transparency and in knowing that a proper investigation had taken place"
The police also said that I had publicly stated my intention of pursuing a Judicial Review against the decision to indemnify Mr James. It was this which appears to be, partly anyway, the 'potential civil litigation' referred to.
In fact, this particular reference did not appear my blog until three weeks after the second police response (actually I said I was "exploring the possibilities").
The police have argued that it was 'not in the public interest to allow the open dissemination of information relating to civil proceedings, which was obtained as a result of a criminal investigation and which is not already in the public domain'
The police also provided (to the Commissioner only, as it was confidential) additional "specific public interest arguments which reveal information it considers to be exempt from disclosure"
The Commissioner, when weighing up the arguments, recognised that this particular case had all the essential ingredients for disclosure;
"In this case, the fact that the subject of the police investigation was the council's decision to fund a civil action against an individual who had been highly critical of it, and that there were questions as to whether this decision, add considerable weight to this [public] interest"
However, along with the predictable counterbalance that police investigations should be 'free and frank' without the threat of FOI, as well as the unknown arguments within the 'confidential' attachment, what the Commissioner saw as the "key" factor against disclosure was the "timing" of my request.
Whilst noting my 'intention' to bring a Judicial Review, as "stated on her blog", he has also considered the;
"ongoing nature of the complainants dispute with the council....which shows no sign of being resolved...she has actively fought to have the [libel] judgement overturned".
"In light of all this, the Commissioner considers it reasonable to believe that further civil litigation is a strong possibility, and that the constabulary's concerns about prejudicing that process by disclosing information relating to its criminal investigation are credible"
There is agreed recognition by all sides that the indemnity "could be subject to challenge by way of judicial review on conventional public law grounds" (WAO report) but it is quite clear that the council are covering all possible bases in their instructions to the police over the disclosure of documents.
Whatever the council's concerns are, all this begs the question whether information recovered during the criminal investigation, or created during the investigation itself, would further damage the council's case should further civil proceedings occur.
Much of the legal opinion and documentation relating to the libel indemnity is already in the public domain but clearly there is more and the council, and the police, are very reluctant for anyone to see it. So for now, at least, it will have to remain a mystery.
To be honest I won't be bringing a judicial review any time soon, this is something the Wales Audit Office should have done. I have more pressing issues to deal with.
I only have the Information Commissioner's decision letter in hard copy and as it runs to several pages I am unable to put it on the blog. The ICO will at some point in the next few weeks upload it onto their website here. The case reference is FS50556313.
Meanwhile, the thread of the original request and review to Gloucestershire police and their responses can be found here, and for reference, the Wales Audit Office report into the libel indemnity is here.
A couple of months ago I contacted the Information Commissioner and challenged the decision by Gloucestershire police not to disclose documents used in the criminal investigation into Carmarthenshire County Council. The investigation was over the pension and libel indemnity scandals relating to the chief executive.
Incidentally, contents of the various responses suggests that the main focus of police attention was the libel indemnity rather than the pension scam.
The Commissioner has issued a decision and agreed with the police...or the council. I'm not sure which, the lines are a little blurred.
Anyway, the original response from the police back in May, after the criminal investigation had been dropped, revealed that no one had been interviewed during the three month investigation and there had been no correspondence with the council. I could go no further with that, as they were telling me there was no information to be had.
I had also asked for documents relating to the investigation as well, (even if it was just a list) including the final police report. They said, in a nutshell, that to disclose these documents could compromise the detection of crime by revealing police tactics.
I asked the police to review their decision due to the clear public interest that an investigation by one public body into another should be open and transparent, and in this particular case there had already been unlawful findings.
The police then changed tack and, without elaboration, said it was because it might prejudice ongoing or future civil proceedings. It was not the police's role to disclose documents which might prejudice civil proceedings.
As Gloucestershire Police refused to specify, even in general terms, what civil litigation they were referring to I asked the Information Commissioner to review their refusal under that particular exemption.
To be clear, other exemptions were used which the police could fall back on if this one failed. However, I pursued the point.
The police argued that the press release regarding the outcome of the investigation should "satisfy the public interest in transparency and in knowing that a proper investigation had taken place"
The police also said that I had publicly stated my intention of pursuing a Judicial Review against the decision to indemnify Mr James. It was this which appears to be, partly anyway, the 'potential civil litigation' referred to.
In fact, this particular reference did not appear my blog until three weeks after the second police response (actually I said I was "exploring the possibilities").
The police have argued that it was 'not in the public interest to allow the open dissemination of information relating to civil proceedings, which was obtained as a result of a criminal investigation and which is not already in the public domain'
The police also provided (to the Commissioner only, as it was confidential) additional "specific public interest arguments which reveal information it considers to be exempt from disclosure"
The Commissioner, when weighing up the arguments, recognised that this particular case had all the essential ingredients for disclosure;
"In this case, the fact that the subject of the police investigation was the council's decision to fund a civil action against an individual who had been highly critical of it, and that there were questions as to whether this decision, add considerable weight to this [public] interest"
However, along with the predictable counterbalance that police investigations should be 'free and frank' without the threat of FOI, as well as the unknown arguments within the 'confidential' attachment, what the Commissioner saw as the "key" factor against disclosure was the "timing" of my request.
Whilst noting my 'intention' to bring a Judicial Review, as "stated on her blog", he has also considered the;
"ongoing nature of the complainants dispute with the council....which shows no sign of being resolved...she has actively fought to have the [libel] judgement overturned".
"In light of all this, the Commissioner considers it reasonable to believe that further civil litigation is a strong possibility, and that the constabulary's concerns about prejudicing that process by disclosing information relating to its criminal investigation are credible"
There is agreed recognition by all sides that the indemnity "could be subject to challenge by way of judicial review on conventional public law grounds" (WAO report) but it is quite clear that the council are covering all possible bases in their instructions to the police over the disclosure of documents.
Whatever the council's concerns are, all this begs the question whether information recovered during the criminal investigation, or created during the investigation itself, would further damage the council's case should further civil proceedings occur.
Much of the legal opinion and documentation relating to the libel indemnity is already in the public domain but clearly there is more and the council, and the police, are very reluctant for anyone to see it. So for now, at least, it will have to remain a mystery.
To be honest I won't be bringing a judicial review any time soon, this is something the Wales Audit Office should have done. I have more pressing issues to deal with.
I only have the Information Commissioner's decision letter in hard copy and as it runs to several pages I am unable to put it on the blog. The ICO will at some point in the next few weeks upload it onto their website here. The case reference is FS50556313.
Meanwhile, the thread of the original request and review to Gloucestershire police and their responses can be found here, and for reference, the Wales Audit Office report into the libel indemnity is here.
8 comments:
What I find a little puzzling about this is that the Gloucestershire Constabulary seems to be saying that they are refusing to disclose documents that they say can't possibly have.
I say this because according to them they have carried out a high(ish) profile investigation which necessarily must have touched on issues of misconduct in public office without actually speaking to anybody or even corresponding with the council.
One thing I know is that the Police service in Carms is no fan of CCC. BUT they wil be acting very cautiously indeed in terms of FOI and will spend a lot of public money defending they're own position - not the councils which doesn't really help you.
I can't see how an investigator can say that a proper enquiry has taken place without interviewing anybody or gathering documentary evidence. It just doesn't sound right. If they maintain this line then we have to assume that all the material they have is already in the public domain.
Perhaps a complaint via IPCC which may examine the enquiry ?
Anon 08:28
I agree, it seems bizarre that there was no communication, I was also told that there was no contact whatsoever between the police and the Crown Prosecution Service, even at an advisory level.
There were reports, at the beginning of the investigation that a couple of boxes of documents were taken by the police from County Hall. I strongly suspect though that if this is true, there was ample time for the contents to be carefully vetted beforehand.
Mark James, as we know, eventually 'stood aside' whilst the investigation continued but as I have evidence (disclosed during the libel case) that he has no qualms about using his position to directly try and influence a live criminal investigation, I have my doubts over this one.
There is clearly something being withheld which, one way or another, could prejudice a civil action.
Whether or not the investigation was thorough and independent, we should, according to the police, be satisfied to have been told this through their press release.
Personally I think this has potential to explode in someone's face - if I were the PCC of either DPP or Gloucestershire Constabulary I would be a little concerned as they will have to carry the can when the truth does come out, as all this happened on their watch.
You don't have to be a detective to know that you can't carry out an enquiry without speaking to someone or looking at a document. It's a nonsense.
Bearing in mind that organisations have a duty to assist with FIO requests are GC saying that they didn't speak to anybody or examine docs knowing that DPP did on there behalf ? In other words is one force playing off the other.
The ACOP officer at DPP must have spoken to individuals or examined documents before deciding to offload the enquiry to GC. They are probably saying that this work did not form part of the enquiry.
Without at least a level of cooperation from either force you may as well be banging your head against a wall.
The answer will Im afraid come via a whistleblower, either via CCC or the police forces involved - it would of course Be much more sensible for the PCCs to get together to try and navigate a way forward to minimise harm or embarrassment in the future.
It seems to me there is a very thin thread of rationale upon which the police and the Information Commissioner have based their decision to keep secret the information subject to this Freedom of Information request. If the information were to be disclosed it could only further the interests of truth and justice rather than inhibit them. The excuse that such disclosure may impede hypothetical litigation is a feeble one against the much more important principle of serving justice. The onus should not be on the applicant to argue that the grounds for withholding the information are unwarranted because there is little or no prospect for such litigation being initiated in the future. In fact, if there were to be such litigation, then I hope that the presiding judge would feel obligated to facilitate the disclosure of the relevant information in order to fulfil the judicial imperatives as laid down in the Civil Procedures Rules of dealing with cases justly and ensuring that the parties are on an equal footing. Such obligations can hardly be met if one party, the Carmarthenshire County Council or the police, are privy to material information that is kept secret from the other party.
Given that it has been decided that there will be no criminal proceedings then public bodies such as the police and the Information Commissioner’s Office have a public and civic duty to facilitate justice in civil proceedings, not to undermine it. These public bodies should also give a more robust meaning to the notion of public interest. The public interest in this instance would be served by placing all information in the public domain in order that the residents of Carmarthenshire can make informed decisions about the behaviour of their elected representatives. Such informed choice is a fundamental tenet of democracy. Additionally the public have a right to know that the police - as the public body responsible for law and order, detecting criminals and protecting the public - have fulfilled these obligations by carrying out a thorough investigation into suspected criminality at Carmarthenshire County Council. It is risible to assert that this obligation has been fulfilled by a press release. Neither the concepts of justice nor democracy seem to have been uppermost in the minds of the Police, nor the Information Commissioner, in determining this matter. As a result they have done a disservice to both.
Hear hear.
It must be now for the elected PCC of Dyfed Powys Police to take this forward. He must read this blog.
The fact that Gloucestershire Police conducted the enquiry should make no difference as it was done on behalf of DPP.
Come on Mr Salmon, you have shown you have balls in the past - get this sorted as it is most unsatisfactory as it stands.
Ask yourself one question, how can an enquiry have been conducted without speaking to anybody or communicating with the council - and what about the box of documents removed from CCC , where does that fit into this sterile non-communicative enquiry.
According to an investigating officer working for Dyfed Powys Police in professional standards, an investigation is 'a systematic enquiry in an attempt to establish the truth'. I have this in writing - make of that what you will. To me this would mean interviews would be imperative.
I will add to my comment regarding a 'systematic enquiry' - there were no interviews in my case either! Clearly something is very wrong.
If I remember correctly, ICO decision notices can be appealed within 28 days of the notice by either the FOI requester or the public body to the First Tier Tribunal (Information Rights).
It's up to Jacqui if she wants to do that though as I doubt the public body will do so as ICO agrees with them. If that happens, it'll be many more months before there's a further decision on the FOI request and of course FTT decisions can be appealed to I think a court.....
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