You’ll have to Imagine what’s in my files

What would John have made of the use of S.23 combined with S.24

The Metropolitan Police Service (MPS) has received a dressing down over the way it dealt with a Freedom of Information request relating to files it holds on John Lennon.

A recent decision notice (link) from the Information Commissioner raps the MPS for failing to deal with the request properly and not coming up with any justification for the exemptions it claimed related to the material.

The saga began in September 2006 when a woman asked for all the information from the John Lennon files which were held by Special Branch. The former Beatle, who was shot by a crazed fan in New York 25 years ago, was known to have been on the radar of the security services in the 1960s because of his left-wing views.

MPS decision makers refused to confirm or deny if it held the information claiming it would be covered by S.23 (information to security bodies), S.24 (national security), S.31 (law enforcement), S.38 (health and safety) and S.40 (personal information).

In a damning verdict of the way the MPS processed the request the Information Commissioner has now ordered the force to state if it holds the information.

The Information Commissioner says: “In the absence of any explanation from the public authority, either at the refusal notice or internal review stage, or in its correspondence with the Commissioner, as to its reasoning for why these exemptions are engaged or, in relation to why the public interest favours the maintenance of these exemptions….. the Commissioner concludes that these exemptions are not engaged.

“The Commissioner also finds that the public authority failed to comply with procedural requirements……… through its inadequate handling of the request. The public authority is required……. to provide a confirmation or denial of whether it holds information falling within the scope of the request.”

The decision notice makes clear that just because the material in question is held by a security force does not necessarily mean that it is covered by S.23 or S.24. The MPS had four opportunities to explain why the information was covered by the exemptions but did not appear to make an attempt to provide a reasoning for its decision, the Information Commissioner said.

Click here for YouTube footage of the news reports from the day Lennon was shot.

Flight of fancy shot down by ICO

The CAA has responsibility for ensuring air safety in the UK

Two safety audit reports on a cargo airline should be released into the public domain despite pleas from the Civil Aviation Authority (CAA) that the documents should be kept confidential.

 

In a recent decision notice (link) the Information Commissioner’s Office ruled the CAA has incorrectly applied a S.31 (law enforcement) exemption to the information when a request to view the documents had been lodged under the Freedom of Information Act.

The original request, which was made more than two years ago, asked the CAA to hand over a copy of the safety audit report it had compiled on MK Airlines.

The CAA refused claiming the information was covered by the S.31 exemption in that its disclosure would be likely to prejudice its functions.

Basically the CAA said that it has responsibilities and authority under the Civil Aviation Act and the Air Navigation Act. It said that if the information were disclosed then other airlines and organisations it came into contact with would be less likely to co-operate and this erosion of trust would ultimately lead to the CAA being less likely to carry out its responsibilities properly.

However, the ICO rejected these arguments. Once again he reverted back to the Information Tribunal’s assessment of “likely to prejudice” from the decision of John Connor Press Associates v Information Commissioner (link) in which it was stated it should be a “real and significant risk” rather than a “hypothetical possibility”.

It said that the CAA had shown no clear evidence of the prejudice that it might suffer and that it was in the interest of airlines to co-operate with the CAA because they have to if they want to get a licence. The Commissioner also said that the CAA did not need the co-operation of the airlines but could compel them to provide information or risk losing their operators licence.

The Commissioner ruled S.31 was not engaged and did not even then go on to consider the public interest test.

He said: “The ability of the public authority to ascertain the competence of persons purporting to be airline operators or investigate and subsequently confirm the competence of current airline operators is embodied in the regulatory powers……

“It follows therefore that it is in the best interests of persons intending to become, or continue as airline operators to comply with specific requirements, and meet or maintain set standards.

“The trust and openness between the public authority and the aviation industry in this respect is one which is beneficial to both parties, and more so to airline operators or they risk losing their licence.

“In the face of the suggestion that disclosure could result in a lack of openess, the Commissioner is still not persuaded that this would be likely to prejudice the public authority’s ability to exercise its functions………. As noted above, the public authority could compel MK Airlines to provide it with the necessary information to enable it ascertain its suitability as an air operator or risk losing its air operator licence.”

Editor’s note: Once again a public authority found guilty for slapping an exemption on without any real thought of what the prejudice might actually be and how it might occur. The simple fact of the matter is that airlines HAVE to co-operate with the CAA if they want to keep flying. The fact these reports may now become public knowledge has the potential to embarrass both sides but that is not an exemption. This has important consequences for other public authorities, particularly police forces, who must show how they will be prejudiced if they want to apply an exemption.

The Oldest Swinger in Town

 

…….On January 12, 2005, less than two weeks after the Act came into force somebody wrote to West Yorkshire Police asking for the numbers of illegal firearms the force had seized in the last five years. The requester also asked: “Could I have copies of any reports prepared by, or received by West Yorkshire Police on the issue of gun crime or gun-related crime in the region or which include substantial reference to those issues over the same time period.”

The police provided the requester with a table showing the numbers of weapons it had confiscated and this was sent through on February 1, 2005. However, there was a clash over the second part of the request relating to the reports held by the police. It refused to hand them over citing four exemptions: Section 30 (Criminal Investigations), Section 31 (Law Enforcement), Section 38 (Health and Safety) and Section 41 (Information Provided in Confidence).

An appeal was lodged by the applicant which was considered by the police force where the refusal decision was upheld. This appeal decision was communicated to the applicant on April 12, 2005.

 The applicant then e-mailed an appeal to the Information Commissioner on April 29, 2005 and staff at the ICO logged it officially on May 14, 2005. What has happened to the appeal over the last three years and nine months is something of a mystery.

In a letter of October 2008 the ICO says: “By way of additional information, I have been advised that the case is currently waiting for the decision notice that has been prepared by the FoI case officer to be ‘signed off’ by a senior member of staff.” The ICO didn’t reveal the name of the applicant – exempt from disclosure under Section 40(2) of the Act.

West Yorkshire Police said it did not want to comment on the matter but confirmed it was still awaiting a decision and the matter had not been resolved informally.

Rest assured when a decision is forth-coming we will let you know about it and which complaint has replaced it as the ICO’s dust-gathering champion.