Download Freedom of Information Act Exemptions: Home Office Decision and Document Analysis and more Schemes and Mind Maps Reasoning in PDF only on Docsity!
Freedom of Information Act 2000 (Section 50)
Decision Notice
Date 14 April 2009
Public Authority: Ministry of Justice Address: 102 Petty France London SW1H 9AJ
Summary
The complainant requested prison-related information regarding Myra Hindley, Fred West, Harold Shipman and Reggie Kray. The public authority refused to supply the information, applying section 22 of the Act (information intended for future publication). It subsequently refused to release the information through the application of section 12 of the Act (cost limit). The Commissioner decided that section 22 could not be applied to any of the requested information or section 12 to the request.
However, following intervention from the Commissioner the public authority applied several other exemptions to withhold some of the requested material. Each was applied to specific categories of information contained therein: section 31 (law enforcement), section 32 (court records), section 38 (health and safety), section 40 (personal information), section 41 (information provided in confidence), section 42 (legal professional privilege). The Commissioner upholds this decision and therefore requires that in respect of the public authority’s revised position, the information not withheld under these exemptions is disclosed to the complainant. However, the Commissioner has also found there to have been several procedural breaches of the Act in the public authority’s handling of the complainant’s request, specifically section 1(1)(b) (duty to communicate information), section 10(1) (time for compliance with request), section 17(1) (refusal of request) and section 17(7) (procedure for dealing with complaints and right of appeal).
The Commissioner’s Role
- The Commissioner’s duty is to decide whether a request for information made to a public authority has been dealt with in accordance with the requirements of Part 1 of the Freedom of Information Act 2000 (the “Act”). This Notice sets out his decision.
The Request
- On 4 and 5 January 2005 the complainant requested the following information from the Home Office:
i. “Personal information and/or letters regarding Myra Hindley. I am especially interested in psychiatric reports shedding light on the state of Hindley’s mind. I would also like documents which reveal anything about:
- her relationship with Ian Brady or former prison warder [name given]
- details of the reasoning behind any parole decisions
- details of any information passed to prison therapist [name given].”
ii. “Personal information and/or letters regarding Fred West who hanged himself in Winson Green jail, in Birmingham on New Year’s Day 1995. Also any details of Fred West’s, prison arrangements, psychiatric reports, and any other information regarding Fred West held by the Home Office or Prison Service.”
iii. “Personal information and/or letters regarding Harold Shipman. I am especially interested in psychiatric reports. I would also like to see any other documents not already in the public domain.”
iv. “Any personal information and/or letters regarding Reggie Kray. I would be particularly interested in documents relating to any parole, health or disciplinary matters concerning Kray and his time in prison – although my request is in no way limited to these specific areas.”
- On 17 January 2005 the Home Office responded to the complainant, in which it stated that it held the requested information but is withholding it under section 22 of the Act (Information intended for future publication). It explained that in the case of Shipman, the Kray Twins, West and Hindley, it planned to put this information into the public domain and will do so, via The National Archives (TNA), in 2005.
- On 19 September 2005 the complainant contacted the Home Office to request an internal review of its response. In doing so, he stated that “The nine month delay since the request was lodged contravenes section 22(1)(c) of the Act which states that it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to “.
- The Home Office responded to the complainant on 10 October 2005, in which it reiterated its intention to put the information in question into the public domain via TNA at “some point” in 2005. However, it stated that it was unable to provide any new information or give a definite date for publication.
- The complainant contacted the Home Office on 26 January 2006 to enquire as to why the requested information had not yet been released via TNA and therefore failed to meet its own deadline of publishing before the end of 2005. He pointed
sensitive information will be section 38 (health and safety) and section 40 (personal information). This exempt material will be transferred to TNA closed for a limited period.
- Public interest test
- The primary consideration which weighs in favour of withholding the information requested is the overriding public interest in avoiding harm to interested parties, most notably the victims’ families.
- Given that these papers cover extremely sensitive subject areas it is essential that time is taken to inform and consult with any living relatives of the victims as well as the relevant police forces. This is in order for their views to be taken into account and to reduce the risk of harm when the papers are finally released at TNA.
- An ongoing piecemeal disclosure of the information held by the Home Office might in itself cause distress to individuals, given the likelihood of media interest being sustained over a longer period. It is consequently the Home Office’s view that a single disclosure of all the non-exempt information held by the Home Office, by means of its transfer to the National Archives, is the course of action that best serves the public interest.
- There is a further public interest in not releasing single documents without the context of the remainder of the material – a piecemeal approach could lead to the public receiving an inaccurate impression of events.
- The public interest considerations in favour of early disclosure are the general public interest in open government accountability which may lead to increased trust and engagement between the public and the government.
- In this case the public interest arguments for withholding the information considerably outweigh those in favour of release.
- Delay in opening the information to public viewing
- The original date for when these papers were likely to be open at TNA was incorrect. The delay has been caused by the vast amount of sensitive information that needs careful consideration and consultation.
- Another factor that has added to the delay is the resource implication for the department that such a huge ongoing review creates and we can only allocate a reasonable level of manpower in order to complete the reviews of this sensitive material. However, it is doing all it can to make sure that non- exempt information is open for public viewing at the earliest possible date.
- Internal Review Conclusion
- It was correct to cite section 22 given the intention to publish and the balance of the public interest. However, over and above that they should have refused these requests on cost grounds before referring to the exemption and the fact that some of the information will be withheld when the bulk of it is published.
- The use of section 22 was never intended to imply that all the information held on these offenders was to be published at TNA, as it was always accepted that other exemptions were likely to apply to a certain amount of the information.
The Investigation
Scope of the case
- On 21 May 2006 the complainant contacted the Commissioner to complain about the way his request for information had been handled. The complainant specifically asked the Commissioner to consider the following points:
i. The unreasonable length of time between the response to his request and the date he was informed that the requested documents would be deposited at the National Archives, at which time he was informed that he would be able to access the information. ii. The Home Office’s failure to fulfil its pledge to release the requested documents.
- The complainant also raised other issues that are not addressed in this Notice because they are not requirements of Part 1 of the Act.
- Following the Commissioner’s intervention which resulted in the Home Office carrying out an internal review, on 13 October 2006 the Home Office contacted the Commissioner to inform him that a full review of the request had now been completed and the complainant had been informed of the outcome (see paragraph 11). It explained that the complainant’s internal review request of 19 September 2005 was treated as general correspondence and not recorded within the FOI monitoring procedures.
- On 13 October 2006, the complainant informed the Commissioner that he was dissatisfied with the outcome of the Home Office’s internal review, as set out in its letter to him of 13 October 2006. He therefore requested that the Commissioner investigates his case as per his complaint of 21 May 2006.
Chronology
- On 18 October 2006, the Commissioner contacted the Home Office to investigate the following points that were communicated to the complainant in the outcome of the internal review of 13 October 2006:
i. Whether it had considered disclosing to the complainant elements of the requested information that would not exceed the cost limit, such as the information about Hindley previously requested by and released to another requestor; ii. Full details of the number and nature of the documents involved in each of the cases, including details of where and how they are stored; iii. Details of what work had been undertaken to prepare the papers for transfer to TNA since the request of 4 January 2005; iv. Steps which had been taken to consult the victims’ families and relevant police forces, together with any responses received; and
did not apply, the papers would be transferred as open for viewing by the public.
- With the advantage of hindsight it is apparent that the date for transfer of the material to TNA was never going to be achievable.
- Thus far the review of the Shipman, West and Kray papers has not been commenced. Efforts have instead been concentrated on the Hindley papers which it and TNA believe to possibly be of the greatest interest to the public. Once they have been transferred to TNA their attentions will be turned to the others.
- Prior to October 2005 the Prison Service were retrieving and collating the relevant papers from a variety of locations around the country, the decision already having been taken in advance that any information within them not subject to exemptions should be transferred open, to TNA. The review of the papers then commenced in October and has been ongoing since then without interruption.
- The initial review of the Hindley papers is now complete and 170 files have been sensitively reviewed. As of 17 October 2006 the actual redactions have been completed on 14 files, and on these 14 files a total of 1441 redactions have been necessary. There are a further 156 files, or about 4 metres of papers, requiring redactions before transfer can take place. It is estimated that it will be in a position to transfer this material to TNA around Easter 2007.
- Finally, with regard to the consultation with third parties which it was undertaking, the Home Office stated the following:
- Throughout the review of the Hindley papers extensive but entirely necessary discussions with all interested parties, be they other government departments or the relatives of victims, have been entered into, and continue to be held.
- The information released by TNA in December 2005 was originally transferred by the DCA, and in light of the media reaction to that release, including the reported reaction of the victims’ families, important lessons have been learned and shared.
- Views differ between interested parties and their views are therefore impossible to predict without individual consultation.
- In its submission, the Home Office also included two annexes, detailing an inventory of the papers it had received from the Prison Service in relation to Hindley, West and Shipman (but excluding files held in its storage facility in relation to West and audio cassettes in relation to Shipman).
- On 6 July 2007, the Commissioner contacted to Home Office to invite it to put forward any further representations it wished to make on its position in relation to the case. The Home Office responded to the Commissioner on 17 July 2007, in which it informed him of the following additional points:
- Since 3 November 2006 the Commissioner has issued two decision notices which deal with the issue of the application of section 41 to information relating to deceased individuals (FS50071069 and FS50101391). It has always been the intention to release Myra Hindley’s medical information open to TNA; however it is felt necessary to review
this position in light of these decisions….it has been concluded that Myra Hindley’s medical information is exempt under section 41 of the Act.
- As a result of the decision to exempt medical information under section 41 the Home Office has had to go back through the files in order to remove it. This work is well underway but 84 files have still to be gone through to complete this process. There also remains a considerable amount of listings work to undertake prior to transfer along with the completion of FOI exemptions forms and other documentation. All of this will then need to be checked by TNA and the FOI exemptions applied will also have to be approved by the Advisory Council. In this matter the Home Office is somewhat dependent on when the Advisory Council is sitting and, although it is optimistic that this process will be completed by the end of this year, it is possible that the Advisory Council may not be in a position to consider the papers until early 2008.
- On 3 August 2007, the Commissioner wrote to the Home Office to inform it that, as a result of its letter of 17 July 2007, he no longer considered himself to be in a position to be able to reach a decision without receipt of further representations and clarification. The Commissioner advised the Home Office that this would be best achieved through a representative of his visiting in person in order to both view the requested information and further discuss its position. Specifically, the Commissioner informed the Home Office that, on his visit, his representative proposed to undertake/discuss the following matters:
- Viewing the volume and nature of the information held (in relation to all four individuals);
- An update on the work carried out by the Home Office since November 2006 on the information relating to West, Shipman and Kray;
- Viewing samples of information the Home Office wishes to exempt under section 41 of the Act (information provided in confidence);
- Clarification as to what other exemptions the Home Office wishes to apply (if any) and viewing samples of the information to which these exemptions have been applied;
- Viewing samples of information which the Home Office does not consider to be exempt; and
- Analysis of the Commissioner’s views of the Home Office’s application to date of sections 12 (cost limit) and 22 (information intended for future publication).
- The Home Office agreed to the Commissioner’s request for a meeting, which took place on 22 August 2007. At the meeting, his representative (referred to from here on as ‘the Commissioner’ for ease of reference) advised of his view about the application of sections 12 and 22 (see analysis section). He also viewed several samples of requested information which the Home Office wishes to exempt from disclosure under section 41, as well as samples it intends to release. The Home Office also advised the Commissioner of the work carried out to date on the transfer of the material to TNA in respect of its application of various exemptions and that which remained to be carried out, most of which it advised would be completed by the end of 2008. The Commissioner was advised that work had so far only been carried out on aspects of the Hindley material, and was provided with a schedule of further work to be carried out on this, together with
- An explanation cannot be provided of what exemptions will be applied to the West, Shipman and Kray papers until such time as the review of those papers has been completed. The application of exemptions in the Hindley papers should, however, give some indication of the type of information likely to be considered exempt.
- Further to the Home Office’s submission, the Commissioner contacted it on 2 April 2008 to request samples of documents it wishes to withhold from the Hindley files from each subcategory of information identified as falling within each exemption applied. The Commissioner was informed that because the information had been transferred to TNA, and because of the nature and sensitivity of the information, it would be easier for him to view these samples in situ. The Commissioner agreed to this suggestion and a representative of his visited TNA on 15 May 2008 to undertake this viewing.
- Prior to his visit, the Home Office supplied the Commissioner with a list of extracts of information, entitled ‘Examples of exemptions applied to Hindley files’, which would fulfil his request for examples of redactions; these were the extracts which the Commissioner viewed during his representative’s visit. This list consisted of various extracts falling within the several classifications.
- On 31 July 2008, the Home Office wrote to the Commissioner to inform him that the work on the West and Shipman papers had been completed and it notified him of the exemptions that would be applied to this information when it is transferred to TNA, and the categories of information which fall within each exemption. The Home Office also provided the Commissioner with a schedule of the categories of information being withheld, one each for Shipman and West. A justification for withholding each category of information was included, each by reference to exemption, piece number, piece details, extract details and covering dates. The Commissioner notes that the reasoning provided to withhold information relating to West and Shipman, as set out in the submission to him of 31 July 2008, was either identical or very similar to that used in relation to the Hindley papers.
- On 7 November 2008, the Home Office wrote to the Commissioner to notify him that it had been necessary to revisit the Shipman and West files due to a concern that some of the information they contained might be damaging to prison security if released and decided to apply section 31(1)(f) – “prejudice to the maintenance of security and good order in prisons or in other institutions where people are lawfully detained” - to some information, predominantly relating to Shipman. The Home Office provided a full explanation as to why it was applying this exemption. It also identified some further documents it had earlier overlooked, consisting or court records, medical information, which it wished to withhold. A justification for withholding each category of information was also included, each by reference to exemption, piece number, piece details, extract details and covering dates.
- On 3 December 2008, the Commissioner visited the Home Office to view the information it had decided to withhold under section 31(1)(f) of the Act. The Commissioner also asked for confirmation as to the current position in respect of the Kray material. The Commissioner was informed that all review and redaction
work on it had been completed and that the transfer of this information to The National Archives would most likely take place in early 2009.
- On 13 January 2009, the Ministry of Justice wrote to the Commissioner to notify him of the exemptions which will be applied to the information on the Kray brothers when it is transferred to TNA, and the categories of information which fall within each exemption. The Commissioner was also provided with a schedule of the categories of information being withheld. A justification for withholding each category of information was included, each by reference to exemption, piece number, piece details, extract details and covering dates. The Commissioner notes that the reasoning provided to withhold information under the exemption specified was either identical or very similar to that used in relation to the other papers requested by the complainant.
Finding of fact
- The requested information has, at the date of this Notice, been transferred to the National Archives. However, the decision relates to the status of the information at the time the request was made, in which it was held by the Home Office. Yet this Notice is being served on the Ministry of Justice (MoJ). This is because of a reorganisation of responsibilities between the Home Office and MoJ on 8 May 2007, in which responsibility for the requested information (including its past handling) passed to the MoJ. Although the information continued to be administered by the Home Office beyond that date, the Home Office therefore undertook this work on behalf of the MoJ.
- The Commissioner viewed samples of information relating to Hindley being withheld under each exemption applied. A schedule of the information viewed can be found in annex A. The Commissioner also viewed all the information falling within the scope of the request being withheld under section 31(1)(f).
Analysis
- The provisions of each of the exemptions referred to in this section can be found in Annex B.
- The Commissioner must restrict his decision to whether the application of the Act to withhold the requested information was correct in relation to the circumstances of the case at the time of the complainant’s request. However, he may use his discretion take into account reliance on different/additional provisions of the Act used by the Home Office/Ministry of Justice subsequent to the outcome of the internal review in reaching this decision provided that these could have applied at the time of the request. In the circumstances of this case he accepts that it would be reasonable for him to accept late reliance on the provisions claimed.
Section 12 - Cost Limit
- In the outcome of its internal review of 16 October 2006, the Home Office stated that the original responses should have instead refused the requests under the £600 cost limit as permitted by section 12 of the Act as a vast amount of information would need to have been collated in relation to some of the offenders, and an amount which would exceed the limit in relation to all.
- Technically, each of the four elements of the complainant’s request constitutes a separate request. However, the Commissioner considers them to be sufficiently similar that they can be aggregated when considering the cost limit. This is because there is an overarching theme or common thread running between the requests in terms of the nature of the information that has been requested. The fact that requests concern different individuals does not mean that they cannot be similar. This line was upheld by the Information Tribunal in the case of Ian Fitzsimmons v Information Commissioner and the Department for Culture, Media and Sport [EA/2007/0124].
- However, in its submission to the Commissioner of 3 November 2006, it was clear from the Home Office’s explanation and content of its annexes of information held, that the information had already been collated and was held by the Home Office. It was also clear that no work needed to be undertaken in order to separate information within the scope of the request from other information (or, in other words, to locate and retrieve relevant from irrelevant material)..
- The Commissioner’s analysis of the Home Office’s response leads him to conclude that the cost limit was applied instead to the amount of time that it would take to prepare the papers for disclosure in terms of cataloguing and going through the information to identify and redact information which it considered should remain exempt from disclosure under the Act post-transfer to TNA.
- Under Regulation 4(3) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004, a public authority may, for the purposes of its estimate of the cost limit, take account only of the costs it reasonably expects to incur in relation to the request in:
(a) determining whether it holds the information, (b) locating a document containing the information, (c) retrieving a document containing the information, and (d) extracting the information from a document containing it.
- The key to the proper interpretation of this provision is that the “information” in this context is the information requested, not the information to be disclosed. A public authority cannot therefore take into account for these purposes the cost of considering whether the information requested was exempt. Furthermore, the time taken to redact a document when the process of redaction is to blank out exempt information, leaving only the information which is to be disclosed in response to the request, does not fall within regulation 4(3)(d).
- The Commissioner has therefore concluded that the Home Office did not provide a reasonable cost estimate and cannot rely on section 12 to withhold the information requested.
Exemptions
Section 22 – Information intended for future publication
- Following the internal review, the Home Office continued to rely upon section 22 in order to withhold the information but did so in addition to section 12 rather than the sole basis. However, as the Commissioner has decided that section 12 does not apply to the requested information, he proceeded to analyse whether some or all of the material could be withheld under section 22 alone.
- The Commissioner is satisfied that ‘publication’ of this information can relate to the time at which it has been transferred and is made available to the public for inspection at TNA. He believes this to be the case for the following reasons:
i. An FOI publication scheme contains information which a public authority commits to publish upon request. However, information only available to the public by inspection can also be placed in that scheme. Using this interpretation, the Commissioner is satisfied that even if the requested information will only be available at the TNA for the public to inspect, it will constitute information that has been “published”. In reaching this conclusion the Commissioner notes the ready availability of the TNA’s inspection facilities and systems.
ii. There is no requirement under section 22 for the public authority holding the information to be the body who will publish the information to which the exemption has been applied.
- The Commissioner notes that the line as to when the information was to be published changed a number of times, such as:
i. “By the end of 2005” (Response to the request) ii. “At the earliest possible date” (Outcome of the internal review) iii. “Easter 2007” (November 2006) iv. “Early 2008” (July 2007) – Hindley. This letter also altered its position in relation to the scope of the publication of information. v. “Towards the end of 2008” (March 2008) – Kray. vi. “Early 2009” (December 2008) - Kray
- Section 22 does not require a public authority to specify the date when it plans to publish the information. It merely requires an assertion that it had a view to publish the information at some future date at the time when the request for information was made. However, in considering section 22(1)(c) timing is a key factor in considering what is reasonable in the circumstances. The Commissioner
2008 (Hindley) and its letters to the Commissioner of 31 July 2008 (West and Shipman) and 13 January 2009 (Krays). The categories and explanations are as follows:
i. Personal data included in correspondence from members of the public A large amount of correspondence was sent to the Home Office and Prison Service. The names, addresses and other personal information contained within that correspondence are exempt as to release it would breach the first data protection principle that data should be processed fairly. Those who corresponded with the Home Office/Prison Service on this issue did not have an expectation that their correspondence would be made available to the public at large and it would consequently be unfair to them to publish their personal data in this way.
ii. Names of prison and probation officers, those sitting on Parole and Review Boards and Boards of Visitors, tutors and educational officers, doctors and other medical staff who came into contact with Hindley, Shipman or West during the course of their duties There remains a significant level of interest in any information relating to these individuals. It is considered that if the names of those who had contact in a professional capacity were released, they would be likely to be targeted by journalists or others seeking to gain new insights and stories to publish. It would breach the first data principle that personal data should be processed fairly to release information which could lead to intrusion into the personal lives of those who came into contact with them as public servants or in the exercise of their professional duties. There is an expectation that public officials’ names (after a certain passage of time) are released in the context of them performing their public duties but it would not be fair to do so in this case. Those officials named did not have a choice about who they were responsible for and their names are not otherwise connected with these individuals in the public domain.
iii. Personal data of friends and relatives The release of personal data of living relatives and friends would also breach the first data protection principle. It would be unfair to the individuals concerned to release their personal information, which they would expect to remain private, simply because the public are interested. It is also likely that the release of this information would cause those individuals to receive particular media interest and intrusion into their private lives. This exemption is being applied to information which is not currently in the public domain
iv. Personal data of victims’ families Data within this category has been removed on the basis that its release would breach the first data protection principle as its release would be unfair to the victims’ families.
v. Personal data of Ian Brady Releasing Ian Brady’s personal data would breach the first data protection principle that information should be processed fairly and lawfully. His personal data is protected by the Data Protection Act and although the public are
interested in it, the Home Office is of the view that the release of the material held would do little to serve a genuine public interest.
vi. Personal data of fellow inmates (Shipman, West, Krays) Fellow inmates’ names have been redacted on the basis that they have no expectation that their data would be released in this context and they too would be likely to be the subject of press intrusion as a result of their association with Shipman or West. It would breach the first data principle that personal data should be processed fairly to release information which could lead to intrusion into the personal lives of those who came into contact.
- The Home Office also provided the Commissioner, in confidence, with additional reasons to explain its decision in respect of the application of section 40(2) to each of the categories outlined above.
- The relevant subsections of section 40 provide that:
(1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.
(2) Any information to which a request for information relates is also exempt information if- (a) it constitutes personal data which do not fall within subsection (1), and (b) either the first or the second condition below is satisfied.
(3) The first condition is- (a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of "data" in section 1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of the public otherwise than under this Act would contravene-
(i) any of the data protection principles, or (ii) section 10 of that Act (right to prevent processing likely to cause damage or distress)…..
- In relation to section 40(2)(a), the Commissioner is satisfied that the requested information is personal data as defined in the Data Protection Act 1998. That Act defines personal data as:
…data which relate to a living individual who can be identified- a) from those data, or b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller…
- Given that Hindley was in prison for many years it is possible that the authors of some of the letters and indeed people referred to within them could be deceased. However, the Commissioner has erred on the side of caution in this respect and assumed that these people are still alive, because he does not have the capability
prejudgement that an article will be the outcome. The Commissioner also accepts the Home Office’s view that the names of officials by reference to their dealings with each individual in this context are not already in the public domain.
- The Commissioner also notes that the personal data of fellow inmates is likely to constitute sensitive personal data – at least in part because it would confirm that the individual (assuming they are still living) has been convicted of a crime, though admittedly not what that crime is. There is also a possibility that by revealing this information there may be rehabilitation of offender issues. Although individuals who are sent to prison may have reduced expectations of privacy and greater intrusion into their private live may be warranted, they still have rights under article 8 of the Human Rights Act 1998 (right to respect for private and family life) and therefore under the DPA. Moreover in relation to sensitive personal data there is no schedule 3 condition in the DPA to permit the disclosure of this information. Therefore whether or not any of this information may be in the public domain, the processing (release) of this information would be unfair under the terms of the DPA. This particular issue was considered in a previous decision of the Commissioner (FS50158274) in which the public authority was prevented by the DPA from releasing sensitive personal data, the content of which was already substantively in the public domain.
- As such, although the Commissioner accepts that there is a general interest in access to this information (which is akin to the legitimate interests served by the contents of these documents which are not being withheld under section 40), he has concluded that the legitimate interests of the public that would be furthered by the disclosure of this information is outweighed by the prejudice to the rights, freedoms and legitimate interests of those individuals. This would not be fair to those individuals.
Section 38(1)(a) – information which would be likely to endanger the physical or mental health of any individual
- In its letters of 31 March 2008 and 31 July 2008, the Home Office advised that section 38(1)(a) was being applied to three categories of information:
i. Information identifying and relating to those who had a particularly close relationship with Myra Hindley. ii. Information relating to the victims’ families (Hindley). iii. Certain information relating to the victims (Hindley and West).
No information relating to Shipman or the Krays has been withheld by the Home under section 38.
- The Commissioner only considered the application of section 38 to the third category of information identified as falling within section 38. This is because he is satisfied that the information falling within the first two categories is exempt under section 40(2). For reasons of confidentiality, the Commissioner cannot state the Home Office’s reasons for withholding information falling within the third category, aside from stating that it was considered that disclosure of this information would be distressing to some of the victims’ families.
- In order for section 38 to be engaged, it must be the case that release of the specified information would or would be likely to endanger the physical of mental health of any individual. In this respect, the Commissioner took into account the decision of the Information Tribunal in the case of John Connor Press Associates Limited v The Information Commissioner [EA2005/0005], in which the Tribunal confirmed that “the chance of prejudice being suffered should be more than a hypothetical possibility; there must have been a real and significant risk” (para 15). This interpretation follows the judgement of Mr Justice Munby in R (on the application of Lord) v Secretary of State for the Home Office [2003]. In that case, the view was expressed that “likely connotes a degree of probability that there is a very significant and weighty chance of prejudice to the identified public interests.
- The degree of risk must be such that there ‘may very well’ be prejudice to those interests, even if the risk falls short of being more probable than not”. Therefore, the risk of prejudice need not be more likely than not, but must be substantially more than remote. In this case, the Commissioner understands from the Home Office’s submissions that its position it that disclosure of the information withheld ‘would be likely’ to endanger the physical or mental health of an individual(s). He therefore assessed the withheld information with regard to the Tribunal’s interpretation of this limb of the exemption.
- The Commissioner considers an individual’s mental wellbeing to fall within the scope of section 38. In this he includes emotional and psychological wellbeing, including the likelihood of causing significant upset or distress. In this case, having looked at most of the information relating to the victims to which section 38 (alone) was applied, the Commissioner believes it to be evident that the consequences of the disclosure of this information into the public domain, especially the likelihood of it being reported in the media, is such that is would cause significant distress to the families of the victims referred to in the material. As such, the Commissioner is satisfied that the exemption is engaged.
- In reaching his view the Commissioner relied heavily on his view that much of the material he viewed was graphic in nature, particularly the descriptions of the way in which the crimes were carried out, and of the harm this information would cause to the surviving relatives of the victims, if disclosed. In addition, given the degree of publicity surrounding Hindley and West, although the victims’ families are probably accustomed to coverage, there is still an interest in avoiding the matters repeatedly being raised for this reason.
- However, as section 38 is subject to the public interest test, the Commissioner went on to consider whether the exemption can be maintained in this respect. He considers the following public interest factors in the disclosure of this information to be relevant in this case:
- The passage of time since the murders took place and the information was produced.
