What became of the drink-drive policemen?

Should police stick with coffee and doughnuts?

The Scottish Information Commissioner Kevin Dunion has issued an interesting decision notice which could provide scope for a more relaxed interpretation of S.40(Personal Information) south of the border.

The case in question relates to the results of disciplinary hearings held on police officers found guilty of drink-driving.

Dumfries and Galloway Police told Guardian reporter Ian Cobain how many officers were convicted but refused to state what had then happened to them. The police force said the disciplinary hearing information was covered by S.38 of the Freedom of Information Scotland Act – the rough equivalent of S.40 in England, Wales and Northern Ireland.

The police force admitted two officers had been convicted of drink-driving but refused to state what had become of them. However, following an internal appeal the police stated that neither officer now worked for them – but didn’t state how they came to have left the force.

As a matter of contrast between the systems north and south of the border it is interesting to note that the original question was sent on February 1, 2008 and the Scottish Information Commissioner was already in contact with Dumfries and Galloway Police Force on March 18.

In summary Dumfries and Galloway Police said the release of the information would be a breach of the first Data Protection principle, there was no ‘legitimate interest’ under the act and that officers had a right to privacy under Article 8 of the European Convention on Human Rights. It also stated that it was common knowledge within the force that these two officers had been the subject of misconduct hearings and if the information was released people would know exactly what had happened to them.

The Commissioner accepted that the information was ‘personal data’ under the terms of the Data Protection Act but he also accepted that Mr Cobain had a ‘legitimate interest’ in obtaining the information.

The reporter had argued the offence of drink-driving was a serious crime and guidance in England stated that convicted officers should be dismissed while in Scotland the policy was not as clear cut.

The Commissioner then stated how he had to conduct a balancing exercise to see if  the “legitimate interests of Mr Cobain outweigh those of the police officers” and if so the information of what became of the police officers could be disclosed without breaching the first data protection principle.

In summary he said: “The Commissioner accepts the police officers may have had a certain expectation that the outcome of the disciplinary hearing would not be disclosed. Indeed, he accepts that it is uncommon for the outcome of disciplinary hearings to be disclosed. However, given the special role which police officers play in society, and the seriousness of the offence, the Commissioner considers that in this case the rights and freedoms or legitimate interests of the officers involved are outweighed by the legitimate interests of Mr Cobain.”

Because disclosure would not be a breach of the Data Protection Act the information was not covered by S.38 of FOISA.

We have seen few decisions where the protection afforded an individual under the Data Protection Act can be waived so this has important ramifications. High profile public servants have had to come to terms with the fact their salaries will become public knowledge now if they fall out of line they can no longer expect a complete blanket ban on how they were dealt with.

The decision notice can be seen here [link] and if you are interested in the fate of the two officers I have asked the question here [link].