Decision notice

estimated reading time: 38 min Reference: IC -80804 -J7C6
Freedom of Information Act 2000 (FOIA)
Decision notice
Date: 8 February 2022
Public Authority: Chief Constable of Av on and Somerset
Constabulary
Address: Force Headquarters
PO BOX 37
Portishead
Bristol
BS20 8QC
Decis ion (including any step s ordered)
1. The complainant has requested information about an incident in w hich a
member of the pub lic was seriously injured by a police dog when Avon
and Somerset Constabu lary (AS C) sh ut down a n illegal rave . ASC
withheld the information , citing sections 30 (Investigations and
proceedings) , 31 (Law enforcement ), 38 (He alth and safety ) and 40
(Per sonal inform ation) of FOIA.
2. The Commissioner’s decision is that ASC was entitled to rely on section
40 (2) to with hold the informa tion it held in re spect of parts 1), 2) , and
5) of the request . It was also entit led to rely on section 40(2) to
withhold some of the information it held in respect of part 3) of the
request . ASC was entit led to rely on section 30 to withho ld th e
information it held in resp ect of part s 6 ), 7) and 8) of the requ est.
Howev er, it was not entitled to rely on these exemption s to withhold the
information it held in respect of part 4) of the request . B y failing to
dis close that informa tion, an d som e inf ormation it he ld in respect of part
3) of t he request which was not exempt under section 40 , within the
statutory time for compliance , ASC breached sectio n 1 and section 10 of
FOIA .
3. The Commissioner requires ASC to take the following steps t o ens ure
compliance with the legislation.
• Disclose the in format ion it hold s in respect of part 3) of the
request, en suring it redacts all information which the
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Commissioner has identified as being exempt under section 40(2)
of FOIA .
• Disclose the informatio n it hold s in respect of part 4) of the
request .
4. ASC must take these steps within 35 calendar days of the date of this
decision notice. Failure to comply may result in the Commissioner
making written certi fication of this fact to the High Court pursuant to
sect ion 54 of the Act and may be dealt with as a contemp t of court.
Request and response
5. On 26 N ovember 2020 , the complainan t wrote to ASC and req uested
information in the following terms :
“BACKGROUND
...
An investigation has been launched into a police dog a ttac k on a
woman that left her with life -changing in juries.
Th e incident, which o ccurred during an opera tion to shut down an
illegal rave on the outskirts of Bristol, has exacerbated concerns about
the frequency that police are using force on members of th e pu blic
amid the ongoing Covid -19 pandemic.
[Name r edacted] was hospitalised wit h injuries to her leg a nd foot
that inclu ded a fractured bone. The injuries required skin grafts,
muscle grafts, and reconstructive surgery.
“I was dancing when I was att acked wit h no warning at all," [name
redacted] told The I ndependent .
“I didn’t even kn ow it was there. The do g came out of nowhere,
grabbed me by the thigh and pulled me to the floor.
“I was screaming in pain and the dog bit through my thigh muscle and
tor e out fat . ”
REQUEST
1) What is the name of the dog.
2) What is the name and number of the p olice dog handler .
3) Prov ide the dog's police records, notes etc .
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4) Which officer gave order to attend with dogs, provide the order .
5) Provide dog handler dog handling training reco rd, qua lifications,
etc.
6) State if dog handler or oth er officer gave dog command to bite
victim and reaso ns.
7) Provide copy of report you are sending to the IOPC.
8) Provide your reasons for the dog attacking .”
(Numbering has been added by the Commissi oner , for clar ity .)
6. ASC responded on 18 December 2020 . Noting that the incident the
reques t related to was currently under investigation , it refused to
disclose the request ed information , citing the fo llowing non -disclosure
exemptions of FOIA :
• section 30(1)(a)(b )(c) – Investigatio ns and proc eedings conducted
by publi c authorit ies
• section 40( 2) -Personal information .
7. The complainant requested an internal review on 18 December 2020.
8. ASC provided the outcome on 30 December 2020 . It upheld its decision
to apply sec tions 30 and 40 of FOIA . It sa id that the w ithheld
infor mation was also exempt under section 38 ( Health and Safety ) of
FOIA .
Scope of the case
9. The complainant contacted the Commissioner on 30 December 2020 to
complain about the way his reque st for informat ion had been handl ed.
He disag ree d with ASC ’s decision to withhold the information .
10. During the investigation , AS C to ld the Commissioner th at section 31(1)
(Law enforcement ) also applied in respect of part 7) of the reque st. It
al so said that it inte nded t o d isclo se so me information wh ich it had
previously cons idered exempt , although it has not go ne on to do so.
Information in sco pe
11. ASC provided the C ommis sioner with a copy of the inf ormation it said
fell within the scope of the request. Th e C ommissioner notes tha t some
of it was created after the request and th at it therefore falls outside o f
its scope.
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12. By way of background, ASC also pro vided him with an internal report
which it said fell outside of the scope of the request . However, t he
Commissioner notes that t he internal re port contains information which
fa lls within scope of parts 1), 2) , 4), 6) and 8) of th e request. He has
therefor e conside red that information for disclosure in this decision
notice.
13. The anal ysis below considers whether ASC was entit led to rely on
sections 30 and 40 to refuse the reques t. It has not been necessary to
consi der th e other exempt ions ment ioned a s they were not cited by ASC
in connection with the information which the C ommissioner has
determined should be disclosed. The Commissi oner has also considered
ASC ’s compliance with s ection 1 a nd section 10 of FOIA .
Reasons for decision
Secti on 40 – per son al data
14. ASC applied section 4 0(2) to withhold the information it held in respect
of parts 1), 2) , 4) and 5) of the request . It also told the Commis sioner
that the inf ormation it held in respect of part 3) co uld be disc losed i f
“anonymised ”. The Commiss ioner has taken this as a claim that only
some of that information is exempt under section 40(2) of FOIA .
15. Section 40(2) of FOIA provides tha t i nfo rmation is exem pt from
disclosure if it is the perso nal data of an in dividu al other than the
req uester and where one of the conditions listed in section 40(3A)(3B)
or 40(4A) is s atisfied.
16. In t hi s case , the relevant condition is contained in section 40 (3 A)( a) 1.
This applie s where the disclo sure o f the informa tion to any memb er of
the public would cont ravene any of the principles relating to the
proce ssing of personal data (‘the DP principles’) , as set out in Article 5
of the General Data Protection Regu la tio n (‘GDPR’).
17. The first step for the Commi ssioner is to determine wheth er the wi thheld
information consti tutes personal data as defined by the Data Protection
Act 2018 (‘DPA’). If it is not pers on al data then section 40 of FOIA
cannot apply.
1 As amended by Sche dul e 1 9 Par agra ph 58(3) DPA.
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18. Second ly, a nd only if the C ommissioner is satisfi ed tha t the req uested
information i s per sonal data, he mus t estab lish whether disclosure of
that data would breach any of the DP principles .
Is the infor ma tion personal data?
19. Section 3(2) of th e DPA defines perso nal d at a as:
“any inf ormation relating to an ident ified or identifiable living
indiv idual ”.
20. The two ma in elem ents of personal data are that the informa tion must
relate to a living person and that t he person must be identifiable.
21. Information will relate to a per so n if it is about them, linked to them ,
has biographical significance for them , is used to info rm decis ions
affecting them or has them as its mai n focus.
22. An identifiable living individual is on e who can be identified, directly or
indirectl y, in parti cular by reference to an identifier such as a name , an
identification number, l ocati on data, an online identi fier or to one or
more factors specific to the physical, physiological, genetic, mental,
economic, cultural or social identity of the individual.
23. Part s 1) , 2) and 5) of the request ask for in forma tion on the dog handler
and th eir dog . The ir focu s is clearly on knowing information whic h i s
specifically about the handler ( their identity, training , qualifications and
overall ap titude ).
24. Th is is all information which relates to th e dog handler in questi on . The
second p art of the te st is whether the withhe ld information identi fies
that individual.
25. The Commissi oner accepts that the name and badge number of the
handler is information wh ich will directly identify th em . This information
therefore falls within the definition of ‘personal data’ in secti on 3(2) of
th e DPA.
26. The handler ’s dog -handling training and quali fication s (if held) is clearly
information about them specifically . Ne vertheless , the C ommission er
has considered whether it would be possib le to disclose t his information
in an anonymised form . If a non ymisation was poss ible , the n, once
anonymised , the information would not be personal data.
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27. On this point, the Commissioner’s guidance on section 40 2 states:
“The DPA defines personal data as an y infor mation re la ting to an
identi fied or identifiable livi ng individual. If an individual cannot be
directly iden tified from the information, it may still be possible to
identify them ”.
28. In view of the high profile natu re of this inc ident and the intercon nected
nat ure of working relationsh ip s with in the police fo rce, t he
Commissioner is satisfied that t he identi ty of the handler of the d og
involved in the incident will be know n to the ir colleagues . Therefore , it
would no t be possible to truly anonymise th is infor mation bef ore
discl osing it, as their colleagues would know that the information
pertained to t hem. The Commi ssioner is therefore satisfied that the
information falls within the definition of ‘personal data’ in se ction 3(2) of
the DPA .
29. ASC said that web se arches of the dog ’s name reve al the na me of its
ha ndler , and therefore that the dog ’s name is also information which
identifie s the handler. The Commissioner conduct ed a cursory search
and was able to replicate t he resu lts ASC described . Because of this
ab ility to identify the handler via the do g’s name, the Commissioner is
satisfied that the dog ’s name fa lls within the definition of ‘personal data’
in sect ion 3(2) of the DPA. This would also be the case in respect of
colleagues who, even were the na me not in the public domain, would
kn ow who the handler was if th e dog ’s name were di sclosed.
30. With reg ard to part 3) o f the request, the w ithheld infor mation
comprises information about the dog, with pass ing references t o its
handler and other persons (vet s, t rai ners and similar) . For the re asons
set out ab ove, t he Commissioner is satisfied that the names of the dog ,
the handler and the other indiv iduals fa ll within the definition of
‘personal data’ in sec tion 3(2) of the DPA. However, AS C told the
Commissi oner th at it was content that the re m aining information about
the dog itself could be disclosed ; to his knowledge, this has not been
done .
31. Turning to part 4) of the request, ASC holds the identity of the senior
officer in question . For the reas ons se t out above , the Commissioner is
satisfied that this i s inf ormation which relates to and identifies that
indiv idual . This is therefore information which falls within the definition
of ‘personal data ’ in section 3(2) of the DPA .
2 https:/ /ico.org.uk/media/for -organisations/documents/1213/personal -
information -section -40 -regulation -13.pdf
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32. The fact that information co nstitu tes th e personal data of an identifiable
living individual does not automatically e xclude it from dis closure under
the FOIA. The second element of th e test is to determine whether
disclosure would cont ravene any of the DP principles .
33. The most relevan t DP princip le in this case is principle (a) .
Would disclosure contravene principle (a) ?
34. Article 5(1)(a) of the GDPR states that:
“Personal data shall be p rocessed lawfully, fairly and in a transparent
manne r in relati on to t he data subject”.
35. In the case o f a n F OIA re quest, the personal data is processed when it is
disclosed in response to the request. This mea ns that the information
can only be disclosed if to do so would be lawful, fair and transparent.
36. In order to b e lawfu l, one of the lawful bases list ed in Articl e 6(1) of t he
GDPR must apply to the processing . I t must also be generally la wful .
Lawful proc essing: Article 6(1)(f) of the GDPR
37. Article 6(1) of the GDPR specifies the requirements for lawful p rocessing
by provi din g that “processing shall be lawful only if and to th e extent
that at least one of the ” lawful bases for processing li sted in the Articl e
applies.
38. The Commissioner considers that the lawful basis most applicable is
basis 6(1)(f) which states:
“pr ocessin g i s necessary for the purposes of th e legi timate inter ests
pursued by the controller or by a third party except where s uch
interests are overridden by the interests or fundamental right s and
freedoms of the data subject which require pro tection of persona l
data, in particular where the data subjec t is a child ”3.
3 Article 6(1) goes o n to sta te that: -
“Point (f) of the first subpara graph shall not appl y to processing carried
out by pub lic auth orities in the performa nce of their tasks ”.
However, se ction 40(8) FOIA (as amended by Sche dule 19 Paragraph 58(8)
DPA ) provides that :-
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39. In considering the application of Article 6(1)(f) of the GDPR in the
context of a request for information under the FOIA , it is necessary to
consider the following three -part test :-
Legitima te inte res t test : Whether a legitimate inter est is being
pur sued in the request for information;
Necessity test : Whether disclo sure of the inform ation is necessary to
meet the legitimate intere st in question;
Balancing test : Whether the above in terests ove rride t he legitimate
interest(s) or fu ndamen tal ri ghts an d freedoms of the data subject.
40. The Commissioner considers that the te st of ‘necessity’ under stage (ii)
must be met before the balancin g test under stage (iii) is applied.
Legitimate int erests
41. In c onside ring any legitimate interest(s) in the discl osure of the
requested information under FOIA, the Commissioner recognises th at a
wide range of interests may be legitimate interests. They can be the
requester’s own interests or the interests o f third par ties, and
commercial interests as well as wi der so cietal benefits. These interest(s)
can include broad general principles of ac countability and transparency
for their own sakes, as well as case -specific interests. However, if the
requester is pu rsuing a pu rely p riva te concern unrelated to any broade r
publ ic interest, unrestricted disclosure to the general public is unlikely to
be proportionate. T he y may be compelling or trivial, but trivial inte rests
may be more easily overridden in the balancing test.
42. The co mpla inan t ha s not offered any explan ation as to what legitimate
interest is being p urs ued in the request. The Commissioner su rmises
that it is the legitimate interest in ex ternal scrutiny of the actions of the
police in relation to an incident in which a mem be r of the public was
injured .
“In dete rmining for the purposes of t hi s section whether the lawfulness
princ iple in Article 5(1)(a) of the GDP R would be contravened by the
disclosure of information, Article 6(1) of the GDPR (lawfulness) is to be
read as if the second sub -paragraph (d is-applying the leg itimate
interests gat ew ay in relation to public authorities) were omitted ”.
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Is discl osure necessary?
43. ‘Necessary’ means more than desirable but less than indispensable or
absolute necess ity. Accordingly, the test is one of reasonable necessity
and involves conside ration of alternative measures wh ich ma y ma ke
disclosure of the reques ted inf ormat ion unnecessary. Disclosure under
FOIA must therefore be the least intrusi ve means of achiev ing the
legitimate aim in question.
Par ts 1), 2) , 3) and 5) of the request
44. As set out a bove, the complainant has not made any submissions as to
why disclosu re of th e withhe ld information is ‘ne cessary’ . In the absence
of the c omplainant ’s input, t he Commissioner does not cons ider that
disclosu re of this p ersonal data is reasonably necessary for the purposes
of the legit imate inte rests he has identified abov e. Quite s imply, t here
are other measur es which can achieve external scrutiny of the police in
regard to the in cident the request relates to . The backgr ound and
actions of the handler (and others) have b een , or will be , subj ect to
proper scrutiny followin g IOPC proc edure s, and then , if appropriate, in
any dis ciplinary proceedings . The fitness of the handler in terms of their
handling of the dog and thei r lev el of training or qualification , can
therefore be effectively , formal ly scr utinised without the rele ase of thei r
per sonal data or the personal data of anyone involved in training or
assessing the dog . A formal investigation with full access to the facts of
the matter and an in -depth knowledge of pr ocesses is the appro priate
for um for such a determination as opposed to a less informed evaluation
by the general public.
45. Since disclosure under FOIA is not th e least intrusive means of achieving
the legitimate aim in qu estion , it follows that i t is not “necessary ”.
46. As the Co mmissi oner has decided in this case that disclos ure is not
necessary to meet the legi timate interest s in discl osure , he has not gone
on to conduct the balancing test . As disclosure is not necessary, t here is
no lawful basis f or this processing and it is un lawful . It therefore does
not meet the requireme nts of principle (a).
Pa rt 3) of the request – other information
47. As note d in parag rap h 30 , section 40( 2) is only being applied to
withhold personal data and ASC has conceded that the information it
hold s in respec t of part 3) of the reque st , ot he r than th e names of
indi viduals and the dog, may be disclosed.
48. The C ommissioner has been unable to identify any harm which wo uld
flow from informa tion which is purely about the dog (as distinct from
information on the hand ler ’s (or other people ’s) interaction with the dog )
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being disclosed . ASC should therefore take the steps specified in
par agrap h 3.
Part 4) of the request
49. ASC holds the identit y of the senior officer in question . The
Commissioner cons iders that the interest s of p ublic scrutiny and
accountability wo uld be served by knowing their identi ty and that
disclosure of this information woul d achieve that legitimate interest. He
is therefore satis fied that disclosure of this information is necessa ry to
meet th at in tere st.
Ba la nce between legitimate interests a nd the data subject’s interests
or fundamental rights and freedoms
50. It is necessary to balance the legitimate interests in disclo sure against
the data subject’s interests or fundamental rights and freedoms. In
doing so, i t is necessary to consider the impac t of disclosure. For
example, if t he data subject would not reasonably expect that the
information would be disclosed to the public under FOIA in response to
the request, or if such disclosure would cause unjus tifi ed har m, their
interests or rights are lik ely to override legitimate int erests in disclosure.
51. In considering this balancing test, the Commissioner has taken into
account the following factors:
• the potential harm or distress that disclosure may cause;
• whet her th e information is already in the publ ic domain;
• whether the information is already known to some individuals;
• whether the individual expressed concern to the disclosure; and
• the reasonable expectations of the individual.
52. In the Commissioner’s vi ew, a key issue is whether the individuals
con cerned have a reasonable expectation that their information will not
be disclosed. These expectations can be shaped by factors such as an
individual’s general expectation of privacy, whether the information
rel ates to an employee in their professional r ole or to them as
individuals , and the purpose for which they provided their personal data.
53. It is also important to consider whether disclosure would be likely to
result in unwarranted damage or distress to that i ndiv idual.
54. ASC offered the fo llowing commentar y on th e information it held in
respect of part 4) of the request :
“Our stance has changed and I would recommend that we should
disclose
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This is due to the s eniority of the Officer, and obtaining consent to
overco me section 40. ”
55. ASC ha s confirmed that th e individual is a senior officer . The
Commissioner considers that , as such, they would have an expectation
that information a bout operational decision s they make will be subject to
greater public scrutiny tha n deci sio ns ma de by less se nior officers. ASC
ha s not argued that discl osing the inform ation would prejudice any
investigation . It confirmed to the Commissioner three times that the
information cou ld be disclosed . The Commission er also note s that ASC
says that con sent to the disclosure has been o btaine d from the person
con cerned . The consent of the data subject significan tly addresses any
concerns about the effect s of disclosure on them, in this case .
56. Base d on the a bo ve factors, the Commissioner has determined that
ther e is sufficient legitimate intere st to outweigh the data subjects’
fundamental rights and freedo ms. The Commissioner therefore
considers that there is an Article 6 bas is for processing and so the
discl os ure of the information would be lawful.
Fairness and transparency
57. Ev en though it has b een demonstrated that disclosure of the requested
information under FOIA would be lawful, it is still necessary to show that
disclosure would be fair and tran sparent un de r principle (a).
58. In relation to fairness, the Com missioner consi ders that if the discl osure
passes the legitimate interest test for lawful processing, it is highly likely
that di sclosure will be fair for the same reasons.
59. The requirement f or transpa re ncy is met because as a public authority,
ASC is subj ect to FOIA .
60. In this instance, the Co mmissioner has decided that ASC has not
demonstrate d that the exemption at section 40(2) is engaged in respect
of the information it holds in relation to part 4) of the request .
Concl usion
61. The Commissioner has decide d that ASC was entitled to wi thhold t he
information requested at parts 1), 2) and 5) unde r section 40(2), b y
way of section 40(3A)(a).
62. In respect of part 3), it was entitled to reply on sect ion 40(2 ) to
withhold personal data. However, as it agrees that not all of the
information it hol ds in respect of part 3) of the request is pers onal da ta,
it should disclose the rem ainder as no other exemptio n has been cited in
respect of this part of the reques t.
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63. In respect of pa rt 4) of the request , ASC was not en tit led to with hold the
information under sec tion 40(2) of FOIA . As sec tion 30 of FOIA has also
been cited in respe ct of thi s part of the request, t he Commissioner has
considered below whether section 30 pr ovides grounds for i t to be
withheld .
Secti on 30 – Investigations and procee dings
64. The C ommi ssioner has con sidered whether ASC was entitled to r ely on
se ction s 30(1) (a) and (b) of FOIA to withhold the inform ation it held i n
respect of parts 4), 6), 7) and 8) of the req uest .
65. Section s 30(1)(a) and (b ) of FOIA state :
“Information hel d by a public authority is exempt in formation if it has
at any tim e been hel d by the authority fo r the purposes of -
(a) any investigation which t he public authority has a duty to
conduct with a view to it being ascertaine d-
(i) whether a person should be charged with an offence, or
(ii) w hether a person charged with a n offen ce is guilty of it,
(b) any investigation which is conducted by the auth ority and in the
circumstances may lead t o a decision by the authority to in stitute
criminal proceedings which the authority has power to conduct… ”.
66. The phrase “at any time” me ans tha t information can be exempt under
section 30(1) if it relates to an ongoi ng, closed or abandoned
investigation.
67. As joint arguments were submitted in respect of both subsections cited
by ASC , the C ommissioner has con sidered them together.
Is the exe mption engaged?
68. Section 30 is a ‘class based’ ex emption and it is not necessary to show
that disclosure would, or would be likely to, result in any prejudi ce, for it
to be engaged. It is en ough that the information sought by the request
falls within the p articul ar class of information described by the
exemption.
69. In order for the exe mption to be engaged, any information mus t be held
for a specific or particu lar investigatio n and not for inve stigations in
general.
70. The withh eld information in resp ect of par t 7) of the request is a referr al
form to the IOPC detailing the circumst ances in which a member o f the
public wh o attended an illegal rave came t o be serio usly injured during a
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police operation to shut i t down . Al though the purpose of the referra l
form is for the IOPC to consider and d etermine a n appropr iate mode of
investigat ion for the incident, there is a cons iderable overlap in the
report between informa tion about the injury and information de tailing
the wider context in which it occurred , to the exten t that t he two are
interlinked ; it would not be possible to give a clear account of the injury
without describ ing th e w ider circumstances , which were the su bject of a
criminal investigation . The referral form conta ins extensive descriptions
of ASC ’s operat ion t o shu t down the illegal ra ve and allegations of
widespread criminal behav io ur . Media reports indicate tha t 10 a rrests
were made and several prosec ution s followed. The Commissioner is
satisfied that t he information in the referral form was sour ced from
informa tion held in support of th e criminal investigation which resulted
in th ose prosecution s.
71. As a police f orce, ASC has a du ty to investigate allegation s of c riminal
offences by virtue of its core fun ction of law enforcement. The
Commiss ioner i s theref ore sati sf ied that it has the p ower to carry out
investigations of the ty pe desc ribed in section 30(1)(a) of FOIA and that
the information contained in the IO PC referral form was held by ASC for
the purpo ses of a specific , criminal investi gation .
72. The C omm issione r also notes that the referral to the IOPC was made
because a m ember of t he public sustain ed a seri ous injury during the
police operat ion. The circum stances of the injury met the criteria for
manda tory referral to the IOPC, and the result ant invest igation would be
required to consider , amongst other th ings, whether th ere was ev idence
that the incident amoun ted to an assault occasioning actual bodily ha rm ,
contrar y to Section 47 of the Offences Again st the Person Act 1861 4. The
IOPC has the power to refer its findings to the Di rector of Public
Prosecutions , should the y indica te a crimi nal offence has taken p lace .
73. The info rmation held in respect of part 4) of t he re ques t is the i de ntity
of the senior o fficer res pons ible for the tactical response to sh utting
do wn the illegal rave.
74. The withheld inf ormation in r elati on to parts 6) and 8) of the request
concern s the operat ional events which led up to the d og bite. This
information is contained wit hin the IOPC referral report , and the internal
report .
4https://ww w.poli ceconduc t.gov.uk/sites/default/f iles/Documents/st atutoryg
uidance/2020_statutory_guidance_english.pdf
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75. The information the refore for m s part of the matters being considered by
both the IOPC and the accompanying criminal investigation into the
illegal rave.
76. Taking all th e above into account, t he Commissioner is satisfied that the
exemption provided by section 30(1)(a) of FOIA is engage d in respect of
the inf ormation it holds for part s 4), 6), 7) a nd 8) of the request .
77. W ith regard to secti on 30(1) (b), the Commissioner ’s g uidance s tates
that this exemption may on ly be claimed where a public authority has
the power to institute a nd conduct criminal proceedings that result from
its investigation.
78. The Comm issioner has not b een presented with a ny evide nce that ASC
holds su ch p owers. H is understanding, from previous e xperience of
considering this exemptio n, is that charging decisions on criminal
investigations are generally made by the Crown Prosec ution Servi ce.
The Commission er therefore conside rs that section 30(1)(b) of FOIA is
no t engaged by the information and he has not considered its
application fur ther in this decision notice.
Public interest test
79. Section 30(1)(a) is subject to a publi c interest test. This means t hat
even though the exemption is engaged, the in formation may only be
withheld if, in all the circ umstances of the case, the public inte rest in
maintaining the exemp tion outweighs the public interest in disclosing
the informati on.
Public int erest arguments in favour of disclo sure
80. The com plainant did not offer an y sub missions as to why the pub lic
intere st favoured disclosure , beyond stating that disclosure of all the
information he ha d requested was in the public interest .
81. ASC acknowledged that disclosure of information about its po licing of
the incident wo uld dem onstrate to t he public that it is transpa rent and
accou ntabl e. It would also al low the public to understand the
circumstances that led to the incident in which a member of the publ ic
was serious ly injured , thus inform ing any public debate on the mat ter.
82. Ho wever, w ith regard to part 4) of the requ est, ASC specifically
commen ted:
“… I feel the application of secti on 30 would favour disclosure on
balancing the public interest .”
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Reference: IC -80804 -J7C6
Public interest arguments in favour of maintaining the
ex emption
83. ASC said that , at the tim e of the request , the information formed part of
a live criminal investiga tion into the illegal rav e. Premature d iscl osure
would have th e po wer t o prejudice and un dermine that investi gation .
“Information relating to any ongoi ng investi gation whether this be an
internal or external investi gation of members of the public or
member s of the police force are ver y rarely disclosed via th e Freedom
of Info rmation Department . Should dis closure be made at this time it
would seriously un dermine th e right to a f air trial of all those
involved .”
84. It a lso argued that d isclosure of information about how the operation
was policed would inform crim inal s of the tact ical abilities and
capabilit ie s employ ed by ASC . Such methods continue to be use d when
policing incident s of this nature, including protests. To make public these
details would compromi se general law enforcement an d interfere w ith
evidence gathering . This would be to the de triment of p roviding an
efficient policing service and a failu re in providing a duty o f care to all
members of the public.
Bal ance of the public interest
85. When conside ring the public interest in m aintaining exemptions the
Commissioner con siders it importan t to be clea r about what they are
designed to protect.
86. The pu rpose of sectio n 30 is to preserve the ability of relevant publi c
authorities to carry out effective inve stigations. Key to the balanc e of
the public interest in a case where t his exemption is f ound to be
engaged i s whether disclosure could have a harmful impact on the
ability o f the police to carry out effective inves tigations. Clearly, it is not
in the publ ic interest to jeopardise the ability of the police (and other
relevant bodies ) to invest igate crime effectiv ely, and in turn, increase
the risk of har m to members of the pub lic from offenders.
87. The Commissioner has considered what public interest there is in ASC
disclosing the request ed information. He has also considered whe ther
disclosure wo uld be likel y to har m any investigation, which would be
counte r to the public interes t, and what weight to give to these
compe ting public interest factors.
Part 4) of the request
88. ASC ha s stated that the public interest fav our s disclosure and that it
intend ed to discl ose th is informa tion (but it has not done so) . It has not
argued that dis closing the information would prejudice a ny
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Reference: IC -80804 -J7C6
investigation . The i nformation does not revea l anything operational ly
se nsitive abo ut the investigation it per tains to and the senior of ficer
concern ed (who would be well place d to gauge whether disclosure would
be prob lem atic ) has c onsented to the dis closure of their n ame . The
Commissioner can see no discernibl e harm arising from disclosure ; had
the party been the subject of an investigati on themselves then this view
would probab ly differ, but no such argument h as been made by ASC .
The Commissioner is therefore satisf ied that the public interest in favour
di sclosing the information outweighs tha t in favour of maintaining the
exemption .
89. ASC should now take the acti on spec ified in paragr ap h 3.
Pa rt s 6), 7) and 8) of the request
90. The Co mmissioner recognise s the importance of the public havi ng
confidence in pub lic authori ties th at are tasked with u ph olding the law.
It is in the public inte rest that the police having an effective and
transparent accountability mechanism and public c onfiden ce will be
increased by permitting it to be scrutinised , which may involve
ex amining t he deci sions taken in parti cu lar cases .
91. In this case , the C ommissione r cons iders t hat there is significant public
interest in disclosure , given the seve rity of the injuri es susta ined from
th e police dog. Disclosure would add to the public ’s unde rs tanding of the
incident , including how it occurr ed , the circumstances the poli ce faced at
the time and the assistance offered to the v ictim . This is a valid fact or in
favour of di sclosure of some wei ght.
92. Turning to the public interest in the maintenance of the exem ption, as
set out above, se ct ion 30(1)(a) exists in order to protect the ability of
relevant public authorities t o carry out effective investigations. C learly it
is in th e public interest fo r ASC to be able to carry out effectiv e
investigations int o an illega l rave , where other , seriou s cr iminal offences
were observed . It is o f further signi ficance that ASC ’s criminal
investigati on was ongoing at the time the reques t was received . On that
poi nt, the Commissioner’s guidance on section 30 5 states :
“…as a gen er al rule t here wi ll always be a stron g public interest in
maintaining the secti on 30 exemption whilst an inves tigation is
ongoing .”
5 https://ico.org.uk/media/1205/investiga tions -and -proceeding s-foi -section -
30.pdf
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Reference: IC -80804 -J7C6
93. The C ommissioner understa nds t hat the IOPC ’s investig atio n of the
incident was also underway , the request being received just over thr ee
weeks after the referral to the IOPC was made . It remains ongoing and ,
depending on its findings (specifically, whe ther it finds any ev idence of a
cr iminal offence) , there rema ins the potential for fur ther prosecution,
which the withheld inform ation in this case would be relevant t o. Such
action could be undermined by premature disclosure of this info rmation
unde r FOIA .
94. Having regard to his guidanc e, the Commissioner recognis es that the
public inter est in maintaining the exemption in relatio n to info rmation on
a live criminal in vestigation is of very significant weight. Disclosure of
information th at may prejudice a possible future pro secution would be
str ongly counter to the pub lic interest.
95. As rega rds ASC ’s argum ents about the wider impact on law en forcement
if the information was disclosed , as a general rule, the Commissioner
accepts that certain information held by the police about criminal
inves tigatio ns can impart intelli gen ce which may be usefu l to those
seeking to commit criminal offen ces and e vade detection. Its disclosur e
may also, in future, deter people (victims, witnesses and suspects) f rom
cooperating wi th the police, for f ear that infor mation which might be
capabl e o f identif ying them ma y be placed in the public domain. The
Commi ssioner h as placed weight on these as arguments for withholding
information, when the informatio n requested has be en, for example,
spe cific details of offe nces, locations, date s, and the n ames or othe r
identifiers of victims , witnesses or suspects. He no tes tha t the withheld
inf ormation conta ins such in formation.
96. In conclusion, the Commissioner recognises that the re is a valid publ ic
interest in the disclosure of the infor mation in the re ferr al form in order
to impr ove public knowledge and understanding of th e circu mstances of
this ser ious incide nt and the actions taken by ASC in relation to it.
However, th at it oc curred in circu mst ances (an illegal ra ve where other
crimina l offences were witn ess ed ) which gave rise t o a criminal
investigation is also relevant in rela tion to the public interest in
preserving a space to carry out the ongoing processes relating to it. The
Commissioner’s vie w is that the pu blic interest in prote cting the criminal
investigation process is stronger than the arguments favouring
disclo sure . H is finding is therefore that th e public interest in favour of
maintaining the exemption outweighs tha t in favour of dis closure. It
follows that AS C was entitled to rely on section 3 0(1)(a) to refuse to
dis close the reques ted information.
97. In light o f this conclusion, it has not been nec essary for the
Commissioner to go on to also consider the other exempt ions cited by
ASC .
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Reference: IC -80804 -J7C6
Section 1 – general right of acc ess
Sec tion 10 -time for co mpliance
98. Section 1(1) of FOIA states that an individual who asks for inf ormation
is entitled to be info rmed whether the information is held and, if the
information is held, to have that information communicated to them.
99. Sec tion 10( 1) of FOIA states tha t on receipt of a request for information,
a public authority sho ul d respo nd to the applicant within 20 w orking
days.
100. The complainant submitted his request on 26 November 2020. ASC
holds information falling within the scope of the req uest that is not
cove red by a non -disclosure exemption and which it has not disclosed to
the co mplainant , despite assuring the Commissioner , on more than o ne
occasion, that it would do so .
101. ASC has therefore breached section 1(1)(b) and section 10( 1) of th e
FOIA.
102. The Commissi oner now req uires ASC to take the action specified in
paragraph 3, above
103. The Commissioner uses intelligen ce gathered from individual cases to
inform his insight and compliance function. This aligns with the goal in
his draft “O penness by design” 6 strategy to improve standards of
accountability, openness and transparency i n a dig ital age. The
Commissioner aims to increase the impact of FOIA enforcement ac tivity
through targeting systemic non -compliance, consistent with the
approa ches set out in his “Regulato ry Action Policy” 7.
6 https://ico.org.uk/media/about -the -ico/consultations/2614120/foi -strate gy -
document.pdf
7 https://ico.or g.uk/media/about -the -ico/documents/2259467/regulatory -
action -policy.pdf
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Reference: IC -80804 -J7C6
Right of a ppeal
104. Either party has the right t o appea l agains t this decision notice to the
First -tier T ribunal (Information Rights). Information about the appeals
process may be obtained from:
First -tier T ribunal (Information Rights)
GR C & GRP Tribunals,
PO Box 930 0,
LEIC ESTER,
LE1 8DJ
Tel: 0203 936 89 63
Fax: 0870 739 5836
Email: grc@justice.gov.uk
Websit e: www.justice.gov.uk/tribuna ls/gene ral -regu latory -
chamber
105. If yo u wish to appeal ag ainst a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Inf ormation Tribunal web site.
106. Any Notice of Appeal shou ld be se rved on the Tribunal within 28
(ca lendar) days of the date on whi ch this decision notice is sent.
Signed ………………………………………………

Samantha Bracegirdle
Senior Case Officer
Information Commissioner ’s Office
Wycliffe H ouse
Water Lane
Wi lmslow
Cheshire
SK9 5AF
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