Appeal Number: EA/2005/0027 FS50072311
FREEDOM OF INFORMATION ACT 2000
Heard on Papers
on 26th May 2006)
Decision Promulgated 19th June 2006
Mr. David Marks
INFORMATION TRIBUNAL DEPUTY CHAIRMAN
Mrs Jacqueline Blake and Mr John Randall
|THE INFORMATION COMMISSIONER||Respondent|
The Tribunal upholds the Information Commissioner s Decision Notice dated 24 November 2005 and dismisses the Appeal.
Reasons for Decision
By an order dated 10 March 2006, the Tribunal directed that the appeal be dealt with without an oral hearing. The Appellant did not take issue with that direction and, in any event, the Tribunal is of the view that the determination of this appeal would not have benefited from an oral hearing, since all the materials on which the parties relied are recorded or set out in documentary form.
"Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of
(a) any investigation which the public authority has a duty to conduct with a view to it being ascertained
(i) whether a person should be charged with an offence, or
(ii) whether a person charged with an offence is guilty of it,
(b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or
(c) any criminal proceedings which the authority has power to conduct."
Section 30(2) of the 2000 Act is concerned with much the same sort of information, but which is obtained from confidential sources. Section 30 (2) is not applicable to the present appeal.
5. As section 2(2)(b) makes clear, the relevant exercise is to weigh the public interest in maintaining the exemption which is manifested by the relevant provisions against the public interest in disclosing the information. If the weighing process is in favour of the maintenance of the exemption, then any duty to communicate or disclose is disapplied. It necessarily follows that not all public interest considerations which might otherwise appear to be relevant to the subject matter of the disclosure should be taken into account. What has to be concentrated upon is the particular public interest necessarily inherent in the exemption or exemptions relied on.
"[freedom of information] should not undermine the investigation, prosecution or prevention of crime, or the bringing of civil or criminal proceedings by public bodies. The investigation and prosecution of crime involve a number of essential requirements. These include the need to avoid prejudicing effective law enforcement, the need to protect witnesses and informers, the need to maintain the independence of the judicial and prosecution processes, and the need to preserve the criminal court as the sole forum for determining guilt. Because of this, the Act will exclude information relating to the investigation and prosecution functions of the police, prosecutors, and other bodies carrying out law enforcement work such as the Department of Social Security or the Immigration Service. The Act will also exclude information relating to the commencement or conduct of civil proceedings."
In striking the balance of interest, regard should be had, inter alia, to such matters as the stage or stages reached in any particular investigation or criminal proceedings, whether and to what extent the information has already been released into the public domain, and the significance or sensitivity of the information requested.
"The number of street storage boxes used for the delivery of mail and their location that were broken into in Glasgow in the last year."
The "last year" in question was 2004. The background to this request is reflected in a short series of written exchanges between the Appellant and the Royal Mail s Glasgow Mail Centre, in the course of which the Appellant explained his concerns regarding the security of mail in what he called "mail street storage boxes" , described by the Royal Mail as "pouch boxes". The Appellant was concerned about the breaking into of such boxes in the Glasgow area in which he is a resident, and the resultant theft of mail. Prior to his formal freedom of information request, the Appellant had written to the Royal Mail asking for details of the number of break-ins into such storage boxes in the Glasgow area, and the Royal Mail had refused to provide such information.
"We have applied the public interest test and believe that, in this instance, the public interest in withholding the information outweighs the public interest in disclosing it. This is because disclosing the information can facilitate the commission of similar crimes."
"On the other hand, there is little public interest in this level of detail, given that members of the public posting mail do not use street storage boxes and information regarding box locations cannot be used by them in any way. Finally, some of this information is being used as evidence in current criminal proceedings, and the Appeals Panel therefore also considers it exempt under section 32 of the Freedom of Information Act."
This Appeal is only concerned with section 30, and not section 32 of the 2000 Act.
(i) at the time of the original request, a suspect had been charged with theft of the mail from pouch boxes in the Glasgow area and related offences; and
(ii) the information sought as to the location of these street boxes was employed to build up and identify crime patterns to try to predict the areas in which the suspects might next operate, which in turn informed decisions as to where surveillance should be conducted, moreover, the information in question was being used to develop intelligence in support of the investigation and, finally, the information sought was being used to identify vulnerable pouch boxes to allow the Royal Mail to take preventative action, such as upgrading security.
The response formally confirmed that the information sought to be disclosed was exempt under section 30, there being further express agreement that the exemption under section 32 did not apply.
(i) both the Royal Mail and the police were involved in ongoing investigations into a widespread and increasing number of attacks on street storage boxes which had led to one prosecution and which might to lead to further criminal proceedings;
(ii) the Royal Mail had demonstrated that criminals selected their targets when deciding which type of storage box to attack, the evidence pointing to specific targeting of boxes which had previously been the subject of break-ins, the Royal Mail further pointing out that the then current investigation by the Royal Mail showed that out of 1,074 street boxes in one Glasgow area, there were 90 attacks on 66 boxes of a particular type during a given period;
(iii) even though there was a legitimate public interest in connection with knowledge as to the Royal Mail s security arrangements, particularly in relation to where attacks had taken place, there remained the risk that disclosure of the requested information would increase the risk of further break-ins, such as to diminish the benefits of such disclosure at the expense of a longer term strategy developed to eradicate further attacks;
(iv) coupled with the factors referred to in (iii) above, there would in consequence be a knock-on effect on the prioritisation afforded to the updating of the 50,000-or so storage boxes in current use across the country, not least in terms of additional expense; and
(v) overall, disclosure would therefore seriously hamper the Royal Mail s efforts in protecting against criminal activity and in prosecuting those who committed offences in relation to post boxes.
(i) the evidence before the Commissioner showed that police were failing to prevent attacks on mail boxes on the basis that what he called the Royal Mail s "delivery system" had been insecure since inception;
(ii) if the public were informed of the locations of break-ins, this would assist in enabling the public to identify the weak boxes and press for replacements;
(iii) it followed from (ii) above that the money required, estimated by the Appellant to be in the sum of £1,000 per box based, in turn, on an estimate of 40% of the boxes used on a nationwide basis being "deficient" would amount to a total of £20 million by way of overall expenditure, which the Appellant considered should be spent quickly;
(iv) much of the information sought by the Appellant had been kept confidential by the Royal Mail "to ensure knowledge of poor security
risk assessment management of the situation is hidden from the public";
(vi) the Royal Mail s concern that if locations were known, there would be an increased risk of further attacks "would be totally allayed" if quick replacement occurred, thus the failure to effect replacements constituted a significant matter of public interest ;
(vii) the Commissioner had taken a wrong view of the costs factor since in asserting that disclosure of the locations would be at the expense of a longer term strategy to eradicate attacks, the Commissioner had failed to take into account other increased costs, such as police and court related expenses "which could be offset by rapid replacement of boxes" , apart from the costs attributable to repairing boxes and compensation costs arising in respect of lost or destroyed mail; and
(viii) overall, it was therefore "in the public interest that poor risk assessment and slow replacement of insecure boxes [was] made widely known".
"As you will be aware, the above exemptions are non-absolute and require the application of the Public Interest Test. I accept that accountability would favour disclosure in that the provision of the information you have requested may assist you in assessing what action, if any, to pursue with the Royal Mail, in relation to your concerns over security of storage boxes. That said, the applicability of the exemptions listed above favour non-disclosure, and it is my belief that supplying you with the requested information may lead to further criminal acts being carried out towards Royal Mail Storage Boxes. To provide you with the locations of those storage boxes within Glasgow, which have previously been the subject of theft, would be to provide you with information showing the possible vulnerability of certain boxes. If this information was placed into the public domain it is my opinion that this could lead to the targeting of boxes by those actively involved in crime. You may argue that once a storage box has been violated, the security would be upgraded by the Royal Mail, thus preventing the re-occurrence of crimes at those locations. If that was the case, to provide those locations could alert the criminal element to the location of the boxes where security has not yet been increased, therefore leaving those boxes at risk. There is therefore a clear public interest in maintaining the confidentiality of the storage box locations in order to discourage such acts."