Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                       Case No.  GIA/3686/2013

ADMINISTRATIVE APPEALS CHAMBER

1.         This is an appeal by Mr C, brought with my permission, against a decision of a First-tier Tribunal made on 8 May 2013. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal in accordance with the directions given in the last paragraph of this decision.

2.         I incorporate in this decision, by way of factual background, the first 17 paragraphs of the judgment of Lord Dyson MR in R (Cubells) v IPCC [2012] EWCA Civ 1292. It is relevant to add that at some point Mr C obtained from a third party (as I understand it probably the coroner) a summary of the letter of instruction by the Second Respondent (GMP) to Dr Macdonald. A copy of that summary appears at p.180.

3.         The last event recorded by Lord Dyson in that factual history, the decision of Sir Stephen Sedley giving permission to proceed for judicial review, and directing that that judicial review claim be retained in the Court of Appeal, took place on 18 May 2012.

4.         On 28 May 2012 Mr C made the following information request to GMP:

            “Under the provisions of FOIA/DPA could you please release to me the instruction given to Police commissioned medical expert Dr Macdonald in respect of the investigation of my Mother’s death”

5.         In relation to Mr C’s rights under FOIA, GMP responded on 18 June 2012. It refused to confirm or deny whether it held the requested information, citing section 30(3) (investigations and proceedings), 38(2) (health and safety) and 40(5) (personal information) of FOIA.

6.         Following an internal review GMP wrote to Mr C on 13 July 2012 upholding its original position. GMP added, for the avoidance of doubt, that its response should not be taken as conclusive evidence that the information requested did or did not exist.

7.         In relation to Mr C’s rights under the Data Protection Act 1988 GMP responded on 25 June 2012 stating that the information which Mr C was entitled to was enclosed, and that “where redaction has occurred, this represents data not personal to you or information than can identify another individual.” The enclosed information consisted of about half a page of the GMP’s instructions to Dr MacDonald, which set out some of the history relating to the death of Mr C’s mother, and his complaint about her treatment. The rest of the text in that document was redacted.

8.         Mr C complained to the First Respondent (“the IC”) about the way in which his information request had been handled:

            “I would like to initiate a complaint in regard to the non release of information by [GMP] in respect of their instruction given to their commissioned medical expert, this being in regard to the ‘supposed’ investigation of my Mother’s death by this mentioned Force.” 

9.         During the IC’s investigation of the complaint GMP advised the IC that

            “In response to his request under the DPA a letter was sent to him, under cover of “Private and Confidential” in which a partial disclosure was made in so far as any information related to [Mr C] personally. Therefore, on a personal level, he is aware that the ‘instruction’ document exists.”

However, GMP went on to say that “this could not be taken into consideration or have any effect on the assessment. The assessment had to be applicant blind …..”

10.       By his Decision Notice, dated 22 October 2012, the IC decided that GMP was entitled under section 30(3) of FOIA to refuse to refuse to confirm or deny whether it held the requested information. The IC did not therefore go on to consider whether the same result would have obtained by reason of the other exemptions relied on by the IC (see para. 34 of the Decision Notice).

11.       By section 30(3) of FOIA:

            “The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1) or (2).”

12.       The IC decided that, if GMP held the requested information, it would fall within the classes of information specified in s.30(1) and (2) in that it would have been held for the purposes of a criminal investigation conducted by GMP. That has not been disputed by Mr C.

13.       The IC went on to consider the “public interest arguments in favour of confirming or denying that information is held” and the “public interest arguments in favour of maintaining the refusal to confirm or deny whether information is held”. When discussing the former the IC said in para. 25:

            “During the course of the Commissioner’s investigation, [Mr C] asserted that the requested information was held by GMP and that it was in the public interest for it to be disclosed.”

14.       The IC set out his conclusions, under the heading “balance of the public interest”, as follows:

            “29.      The [IC’s] guidance on the duty to confirm or deny explores the implications of the wording of the request in relation to the duty to confirm or deny. In the [IC’s] view, the wording of the request for information will affect whether or not a public authority will confirm or deny it holds that information. The [IC] also considers that, in many cases, the more specific the request, the lower the likelihood of the duty arising.

            30.       In this case the request focuses on a particular investigation rather than investigations in general and specifically asks for information about an investigation in relation to a named individual.

            31.       In the [IC’s] view, there are cases where it is important that the “neither confirm nor deny” response does not imply anything about whether information is or is not held. It should therefore be applied consistently by a public authority whether or not information is actually held. In other words, the authority should consider both whether any harm would arise from confirming that information is held and whether harm would arise from stating that no information is held. Otherwise, if the same (or same type of) request were made on several occasions over time, the changing response could reveal whether information was held.

            32.       In considering the balance of the public interest in relation to the application of the NCND exemption in this case, the Commissioner’s view is that significant weight has to be given to the need to protect the public authority’s ability to adopt a consistent approach when responding to similar requests in the future.

            33.       Having considered both sets of arguments in this particular case, the [IC’s] view is that the public interest arguments in favour of maintaining the refusal to either confirm or deny whether information is held outweigh those in favour of GMP issuing such a confirmation/denial. Therefore, the [IC] finds that GMP was entitled to rely on the refusal to confirm or deny provided by section 30(3) of the FOIA.”

15.       On 15 October 2012, a week before the date of the IC’s Decision Notice, the Court of Appeal had given the decision to which I referred in para. 2 above. That was a decision dismissing Mr C’s application for judicial review of the IPCC’s dismissal of Mr C’s appeal against the Professional Standards Branch of the GMP’s decision on his complaint in relation to the police investigation into his mother’s death.

16.       The FTT, by the decision now under appeal to me, dismissed Mr C’s appeal against the IC’s decision.

17.       The FTT’s reasoning under the heading “public interest arguments under section 2(1)(b)” included the following:

            “10.      The public interest in the GMP being permitted to give a “neither confirm nor deny” response to the Appellant’s information request, as set out in the Decision Notice and reiterated by the [IC’s] counsel, is that it prevents the public from determining a pattern from responses made over a period of time. If, to put it at its most simple, the GMP denied that it held information when it did not do so, but issued a “neither conform nor deny” response when it did, the public would very quickly discern that the second of those responses signalled that it did indeed hold the information. The GMP’s case, therefore, is that it must be permitted to maintain consistency if it is to retain confidentiality about the way in which it approaches a particular type of enquiry. On the facts of this particular case that means that the public (including those who may be the subject of an inquiry) will not be able to determine the circumstances when the GMP is likely to decide that it should seek a medical opinion and when it should not.

            ……………………………………………………………………………………

            15.       Counsel for the [IC] went further, discouraging us from attempting to second guess the GMP’s assessment that disclosing whether or not it held the information would have an effect on the overall consistency of its responses and hence the effectiveness of its investigatory activities. In particular, it was said, a pattern might easily emerge disclosing those cases, or categories of case, where the GMP decided to instruct a medical expert and those in respect of which it might decide that the nature of the allegations did not justify it. This, it was said, comfortably outweighed the limited public interest that might be served by the GMP revealing whether or not it held the requested information.”

18.       Under the heading “our decision on the public interest balance” the FTT said:

            “16.      We do not accept the Appellant’s argument that there is a public (as opposed to private) interest in the GMP disclosing whether or not it held the requested information at the relevant time. We expand on our reasons for having reached that conclusion in Confidential Annex 3 to this decision. Although we do not believe that the public interest in retaining consistency in respect of investigations into suspicious deaths in hospitals is as great as the GMP and [IC] have argued, we accept that it does exist in respect of investigations as a whole and that there must be a good reason for ordering any disclosure that might begin to dilute it. We found no such good reason in this case. We therefore conclude that the public interest in GMP being entitled to issue a “neither confirm nor deny” response outweighed the public interest in disclosing whether it held the information. The GMP was, therefore, justified in responding to the Appellant’s information request as it did.”

19.       Mr C had referred to the Court of Appeal’s decision in Appendix 4 to his grounds of appeal to the FTT. He had also referred, earlier in those grounds, to the fact that he had been informed by the GMP that the requested information did exist, and had been provided with part of it, pursuant to his subject access request under the Data Protection Act.

20.       In my judgment the FTT’s decision was wrong in law and must be set aside, for the following reasons.

21.       First, the FTT in my judgment failed to take into account the fact that, by the time when Mr C made his information request, the fact that GMP had obtained a report from Dr Macdonald was known to Mr C and was already in the public domain, by virtue of the decision of Simon J, made on 19 March 2012. This was an unreserved decision delivered in open court, and of which an official transcript was subsequently made.  Para. 5 of Simon J’s decision referred to the criminal investigation conducted by GMP into the death of Mr C’s mother, and continued:

            “The investigation considered documentation provided by the claimant, the medical notes supplied by the coroner, the Ombudsman’s report …… and a medical report from an independent expert, Dr McDonald, who concluded that there was no evidence of a cover-up.”

22.       In my judgment it is a nonsense to say that the public interest demands that a public authority give a “neither confirm nor deny” response when the fact that the information exists is already in the public domain.

23.       The IC submits as follows in relation to this point:

            “FOIA is ‘applicant blind’ (thus, what matters is not what the requester knows, but what the public knows); the public interest must be assessed at the relevant time, i.e. the date of the request (or GMP’s response to the request); information such as that in dispute here is only properly in the public domain if the relevant public authority has confirmed this expressly or by clear implication.

            Putting those propositions together, the question is whether, at the relevant time, there was in the public domain confirmation (i.e. from GMP itself, as opposed to statements from [Mr C] as to what he had learnt otherwise through public statements by the GMP) of the answer to [Mr C’s] question.

            On the facts of this case, the [IC] was satisfied that the answer to that question is “no”. The refusal of permission to apply for judicial review did not, in the [IC’s] submission, constitute such a public confirmation of the answer.”

24.       The significance of the question whether the existence of the requested information is already in the public domain is that, if it is, then ordinarily there can be no public interest in the public authority being able to give a “NCND” answer. Unless there is a real question as to the accuracy of the statement, in the public domain, that the information exists, it does not seem to me to matter how it got into the public domain. It does not in my judgment therefore generally matter whether it was put there by the public authority or by some other person. In the present case there was no doubt that the information that Dr Macdonald’s report existed (and therefore by clear implication that GMP had instructed her to advise) was correct. It had in effect been confirmed by the IPCC, who were represented before Simon J, and Simon J presumably had a copy of Dr Macdonald’s report before him. Moreover, it does not seem to me that there is any room, in this context, for an argument that if GMP were specifically to confirm, in answer to Mr C’s information request, that instructions to Dr Macdonald existed, the information that instructions existed would be more available to the public than it by then already was. I do not think that the degree of accessibility to the public of information in the public domain can be material for present purposes. Information is either in the public domain or it is not. But in any event the FTT did not rely on reasoning of that sort. Further, it was by no means obvious that confirmation, in answer to Mr C’s information request, that instructions to Dr Macdonald existed would make that fact more accessible to the public than it already was.

25.       By the time of the IC’s and the FTT’s decisions the fact that Dr Macdonald had been instructed by GMP was even more clearly in the public domain by reason of the widely reported decision of the Court of Appeal refusing Mr C’s judicial review application. As I have mentioned, Mr C referred to the Court of Appeal’s decision in his grounds of appeal to the FTT. Yet the FTT went to elaborate lengths to ensure that the open parts of its decision did not disclose that GMP had instructed a medical expert to advise. On the face of it that seems to have been wholly unnecessary. I have not been provided with a copy of the bundle which was used before the FTT, if indeed there was one, but as I understand it the skeleton argument on behalf of Mr C in the Court of Appeal (pages 93 to 112 of the Upper Tribunal Bundle) was before the FTT, which would therefore have been aware that the fact that Dr Macdonald had been instructed was stated in Simon J’s decision refusing permission.

26.       In paras. 7a, 8 and 9 of the decision the FTT said that, for the reasons which it set out in Confidential Annex 1 to the decision, it ruled at the hearing that the first 6 paragraphs of the Confidential Annex to the IC’s Decision Notice should be disclosed to Mr C and his counsel, “on terms that this was not a disclosure under the FOIA (which would have left the Appellant free to disclose it to the world) but a disclosure made solely for the purpose of the hearing (where it would be debated in a session that would be closed to all other members of the public) and on the basis that it would not be used for any purpose other than the conduct of the hearing. On that basis copies were made available to the Appellant and his Counsel under the terms of confidentiality. They were retrieved at the end of the hearing.” The first 6 paragraphs of the IC’s Confidential Annex told Mr C nothing which he did not already know Further, there was nothing which had prevented him from putting what he knew into the public domain. “Confidential Annex 1” to the FTT’s decision acknowledged that “in circumstances where the Appellant knows that a document containing the information he requests is in existence, and is aware of at least part of the content of the document, it is difficult to have a sensible debate on whether a “neither confirm nor deny” response is appropriate.” I agree entirely. But the point is that, unless the information requester has come by the information in circumstances which prohibit him making it available to the public, it is wrong to conduct the proceedings on the footing that he is not free to do so.

27.       In my judgment the public interest in GMP being able to give a consistent answer (i.e. an NCND answer) to requests for information about criminal investigations (see particularly paras. 10 and 16 of the FTT’s decision) is irrelevant where, as here, the fact that the information exists is already in the public domain.

28.       Secondly, in my judgment the FTT was clearly wrong, as a matter of fact, in stating, in its para. 14, that there was “no suggestion” of GMP performing inadequately in the conduct of the investigation into the death of Mr C’s mother. As the Court of Appeal recognised, Mr C’s whole contention is that Dr Macdonald did not appear to have been made aware of the blood picture taken on 26 October 2007; hence his wish to see the instructions to Dr Macdonald. Further, in stating in the next sentence that “we certainly see no grounds for concern on the basis of our review of the facts and materials in this case”, the First-tier Tribunal in my judgment made a judgment which was not open to it on the limited information available to it, and failed to deal with Mr C’s contention that the fact that Dr Macdonald was not aware of the blood picture must indicate some inadequacy on the part of part of the instructions given to her by GMP (a contention which he had summarised in Appendix 4 to his grounds of appeal to the FTT – p.74 of the Upper Tribunal bundle).

29.       Thirdly, the FTT did not in my judgment sufficiently specify what it considered the public interest factors in favour of maintaining the exemption in section 30(3) to be in this case. In para. 16 of its decision (set out at para. 18 above) it referred to “the public interest in retaining consistency in respect of investigations into suspicious deaths in hospitals.” That is clearly a reference back to the public interest which had been identified by the IC, as referred to in paras. 5 and 10 of the FTT’s decision. Para. 10 (set out in para. 17 above) refers to the IC’s contention that a NCND answer “prevents the public from determining a pattern from responses made over a period of time.”

30.       However, in my judgment the GMP and the FTT (in making its findings) needed to go further and explain why it would matter if the public were able to determine the circumstances where the GMP is likely to decide that it should seek a medical opinion and when it should not. On the face of it there is nothing in such knowledge which would prevent the police being able to conduct investigations as fully as if the public did not have such knowledge. In my judgment the FTT should not simply have accepted that the public interest would be damaged by such knowledge.

31.       Finally, in my judgment the FTT further went wrong in law in stating, in para. 16 of its decision, that “we do not accept the Appellant’s argument that there is a public (as opposed to private) interest in the GMP disclosing whether or not it held the requested information at the relevant time.” It is submitted on behalf of the IC that on a fair reading of the FTT’s reasons overall, it was not saying that there was no public interest in the disclosure of the disputed information. Rather, it was saying in its para. 16 that it did not accept how Mr C had put his public interest argument (a reference to its para. 13). It is submitted that the FTT had expressly recorded the Respondents’ acknowledgments that there was some public interest in the disclosure of the disputed information: see paras. 5, 12 and 14-15. However, in my judgment the first sentence of para. 16 is a clear statement that there was no public interest in the GMP disclosing whether or not it held the requested information at the relevant time. If that was not what the FTT meant, then its reasoning is obscure, and wrong in law for that reason also.

32.       I record that my reasons for giving permission to bring this appeal also included the reason that it was arguable that that the FTT wrongly limited its consideration of the public interest in favour of disclosure to the interest of the public in knowing whether instructions to a medical expert were held, and did not take into account (or sufficiently take into account) the interest of the public in being informed of the content of such instructions. The IC does not accept that the FTT did go wrong in that respect and has requested that, if I am minded to decide that issue, the IC should have the opportunity to make further submissions about it. As the issue is potentially one of more general importance which has not been fully argued before me, and as it is not necessary for me to decide it in order to dispose of this appeal, I therefore say no more about it.

33.       I record also that Mr C requested an oral hearing of this appeal. However, as I have decided the appeal substantially in his favour, I consider that an oral hearing is unnecessary, and therefore refuse that request.

Disposal

34.       In my judgment the FTT’s decision must be set aside as wrong in law. The consequence of my reasoning in paras. 21 to 25 above is that in my judgment the only decision which the FTT could properly have made on the duty to confirm or deny was that GMP was required to confirm that it did hold the requested information. The FTT should then have gone on to consider whether GMP should be required to disclose the information itself. That would no doubt have involved the giving of directions for further submissions by the parties, as a first step. In my judgment the appropriate course is for me to remit this matter to a differently constituted FTT. The new FTT will proceed on the basis which I have just indicated. When this matter is returned to the FTT it should therefore come before a Registrar or Judge, for the giving of directions in relation to further submissions and evidence.

Charles Turnbull

Judge of the Upper Tribunal

22 October 2014