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IN THE MATTER OF AN APPEAL TO THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000

B E T W E E N:-

- and -

EA/2018/0010

Appellant

THE INFORMATION COMMISSIONER

Respondent

RESPONSE BY THE INFORMATION COMMISSIONER

Introduction

1. The Respondent (“the Commissioner”) acknowledges the Appellant’s Notice of Appeal dated 09 January 2018 and serves this Response in accordance with rule 23 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the 2009 Rules”).

2. The appeal is brought under section 57(1) Freedom of Information Act 2000 (‘FOIA’), against the Commissioner’s Decision Notice dated 20 December 2017 with the reference number FS50630924.

3. For the reasons given below, the Commissioner opposes the appeal.

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Background

4. The Commissioner understands the following course of events to have prompted the Appellant to submit the request which is the subject of this appeal.

5. North East Lincolnshire Council applied for a council tax liability order against the Appellant for the 2015/16 tax year. The Appellant alleged that a false statement had been signed by a Council officer in support of the application. A liability order was granted by Grimsby Magistrate’s Court in October 2015.

6. The Appellant invited Humberside Police to investigate the allegations of perjury but the police force declined to do so.

7. The Appellant wrote to Grimsby Magistrate’s Court to ask the Court to confirm that a false witness statement had been produced, and inform Humberside Police so that they could commence an investigation. The Court replied stating that it would not be taking any action regarding the allegations.

8. The Appellant appealed against Humberside Police’s decision not to pursue the matter, and subsequently applied to commence proceedings against Humberside Police, by issue of a summons for failing to exercise its powers under s.26(5) and (6) of the Criminal Justice and Courts Act 2015. The court considered the application and refused to issue a summons. This was on the basis that the application and grievance were concerned with the previous order and supporting evidence which he had an opportunity to appeal, but chose not to do so.

9. On 27 August 2015 the Appellant was involved in an incident which led to him being arrested and charged with an offence under s.5 of the Public Order Act 1986. Two members of the public provided witness statements for the purposes of the criminal proceedings. The Appellant believes that the arresting officer had incited at least one of the witnesses to make a false statement, and that both witnesses had made false statements therefore committing perjury before the court.

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10. A hearing in relation to this offence took place on 30 September 2015. The Appellant attended and pleaded not guilty. The Court directed that the Appellant was prohibited from cross-examining the witness in person and arrangements were made for a solicitor to do so at a further hearing listed for 15 December 2015.

11. The Appellant submitted a complaint to Humberside Police on 8 November 2015 regarding the arresting officer, alleging that he had incited the witnesses to commit perjury. On 2 December 2015 the Appellant wrote to Humberside Police and requested that it also investigate his allegations that the two members of the public had made false statements before the Court.

12. Humberside Police explained that:

Your complaint is being held sub-judice at this time as there are outstanding criminal proceedings. The correct forum for you to challenge the evidence given by any of the witnesses is through the court. It is not practice to investigate an allegation such as you have made unless the magistrates or judge makes comment about the evidence and recommends the Force investigates the matter unless there are other aggravating circumstances to make an investigation imperative. In this case you have not provided any evidence, other than your opinion, which would suggest that it is necessary at this time to carry out an investigation.

I would re-iterate that if you wish to challenge the evidence the witnesses have provided the correct forum is the court system. It would be considered as an abuse of the complaints process to investigate the allegation you have made under the Police complaints process as the situation stands now.”

13. The Appellant subsequently forwarded his complaint regarding the arresting officer to the Court on 11 December 2015, together with an account stating that the two members of the public had both made untrue witness statements. The Appellant did not attend the hearing on 15 December 2015 as he did not consider the presiding judge to be ‘a fit and proper person to hear the case’. The Appellant was convicted of the offence and sentenced on 22 December 2015.

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14. The Appellant wrote to Humberside Police on 1 February 2016 and confirmed that the Magistrates’ Court had refused to reopen the case. In that correspondence the Appellant indicated that he has “for the foreseeable future decided against appealing” but would like an update on the police force’s investigation into his complaint regarding the arresting officer, and otherwise sought confirmation that the allegations of the two false witness statements had been recorded as crimes.

15. Humberside Police responded on 11 and 24 March 2016, after a further exchange of emails, and reiterated that the police force does not investigate allegations of perjury unless a request to do so comes from the court, and that as perjury is not a victim based crime the allegations had not been recorded as a crime.

16. The Appellant subsequently appealed the Magistrates’ decision to the Crown Court on 12 April 2016. However the appeal was out of time and leave to appeal was refused on 15 April 2016 on the basis that the Appellant had absented himself from the trial and had not provided an adequate reason for appealing out of time.

The Request

17. On 12 March 2016, the Appellant submitted the following request to Humberside Police:

“Under subsection (2) of Section 26 of the Criminal Justice Courts Act 2015 a police officer “is liable, on conviction of indictment, to imprisonment for a term not exceeding 14 years or a fine (or both)” if he fails under subsections (5) and (6) of the 2015 Act to exercise a power for the purpose of achieving the detriment of another person. Within the last few months Humberside Police has, to my knowledge, stated the following in relation to two separately reported incidents of perjury; - one committed by North East Lincolnshire Council, and the other by two members of the public in their witness statements which were outright lies.

Humberside Police do not investigate allegations of perjury unless a request to do so come from the court themselves.”

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Please see the link below which is a letter dated 13 January 2016 containing the above statement.

https://www.whatdotheyknow.com/request/humberside_police_wrongly_cla

ss#coment-65970

There has clearly been a failure in exercising police powers in both cases to the detriment of another person for which the officer who has acted improperly is open to a term of imprisonment or a fine (or both). Please disclose all related material (statutory or policy) which lawfully permits or advises Humberside Police that it may refuse to investigate allegations of perjury unless a request to do so comes from the court.” (Emphasis added)

18. Humberside Police wrote to the Appellant on 10 June 2016 stating that under the provision of section 1 FOIA it did not hold the requested information.

19. On 16 January 2017 the Appellant contacted the Commissioner, expressing his dissatisfaction both with the reliance on section 1 FOIA, and the time it had taken to produce that refusal.

The Applicable Law

20. Public authorities are under a general duty, under section 1 FOIA, to disclose information they hold where it is requested under the FOIA:

21. However the right under section 1 FOIA only relates to information that is ‘held’ at the time of the request (s.1(4) FOIA), meaning that it is recorded in some way. There is no specific obligation under FOIA for public authorities to ‘hold’ information.

22. Section 84 FOIA defines ‘information’. It says that ‘information (subject to sections 51(8) and 75(2)) means information recorded in any form’. So, if information is not recorded there is no right to such information under FOIA. FOIA does not deal in any way with what information ‘should’ be recorded.

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23. When deciding whether a public authority has not provided any or all of the requested information, it is the normal civil standard of proof which is applied when determining the case. This means that the Commissioner and Tribunal must decide on the ‘balance of probabilities’ whether the information is held.

24. The Tribunal has repeatedly confirmed that the relevant test is the balance of probabilities (see, for example, Councillor Jeremy Clyne v IC and London Borough of Lambeth EA/2011/0190). The principle was established in Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072), the Tribunal held that:

“There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority's records.However, it argued (and was supported in the argument by the Information Commissioner) that the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof and clearly applies to Appeals before this Tribunal in which the Information Commissioner's findings of fact are reviewed. We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed.” (at [13], emphasis added).

25. Consequently, when the Commissioner seeks to establish whether information is held by a public authority, the Commissioner will, as is the case in this particular matter, consider the searches carried out by the public authority, and/or other explanations offered as to why the information is not held. The Commissioner then reaches her decision on the balance of probabilities.

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The Commissioner’s Decision

26. During the Commissioner’s investigation Humberside Police confirmed that it had taken the following steps to check whether any information was held which stated that Humberside Police may refuse to investigate perjury unless a request to do so comes from the court:

(i)

The Professional Standards Branch (“PSB”) were contacted to establish if they held anything confirming that Humberside Police may refuse to investigate perjury unless a request to do so comes from the court, given that the PSB had provided the original statements set out above to the Appellant in response to two of his complaints. The PSB stated that the statements were likely provided owing to the context for the Appellant’s specific case and part of the decision making of the individuals investigating the complaints. The PSB confirmed that it did not hold any policy relating to this and suggested that Legal Services or the Force Crime Registrar may be able to assist.

(ii)

Humberside Legal Services referred to the CPS website (http://www.cps.gov.uk/legal/h_to_k/judicial_comments/), on the basis that Humberside Police did not hold any information.

(iii)

The Force Crime Registrar confirmed that he could not comment on investigations of state based offences of perjury nor the decision to investigate or not. There are many parameters to consider on where such allegations can be made from to decide whether an investigation occurs. The Force Crime Registrar referred to Home Office Counting Rules and stated that it would be for consideration to record within the Home Office Counting Rules under state based offences and record when all points to prove are made out. Humberside Police checked the counting rules but they were generic and did not refer or make any reference to perjury or state that Humberside Police would not investigate.

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(iv) Humberside Police’s Intranet, which held all policies and procedures, was searched to confirm that it did not hold any policy which confirmed Humberside Police may refuse to investigate perjury unless a request to do so comes from the court. The results were negative.

27. Humberside Police concluded that “It appears that no information was ever held and that it was stated based on the specifics of [the Appellant’s] case and advice from our legal team who had utilised outside resources. Humberside Police also confirmed that there was no requirement for the information requested to be held as each matter would be a case by case decision taking legal advice.

28. On 20 December 2017, the Commissioner issued her Decision Notice. The Commissioner considered that the searches conducted by Humberside Police were sufficiently thorough and reasonable such that any information within the scope of the request would likely have been found if held: DN §§13-23. She found that, on the balance of probabilities, Humberside Police did not hold any information falling within the scope of the Appellant’s request. The Commissioner did however find the Council had breached section 10(1) FOIA for failing to provide a response to the Appellant within the time for statutory compliance.

The Appellant’s Grounds of Appeal

29. The Appellant challenges the Commissioner’s conclusion that, on the balance of probabilities, Humberside Police do not hold any information within the scope of the request.

30. In support, the Appellant submits that the statement that “Humberside Police do not investigate allegations of perjury unless a request to do so comes from the court” suggests a blanket policy decision, whilst Humberside Police’s later explanation suggested that the statement was “based on the specifics of the [Appellant’s] related complaint to it and advice from its legal team” and “there was no requirement for the requested information to be held as it would be a case by case decision”. Furthermore the Appellant submits that the CPS guidance does not support Humberside’s Police’s statement.

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The Commissioner’s Response

31. The Commissioner opposes this appeal. Generally, the Commissioner relies on the Decision Notice as setting out her findings and the reasons for those findings, and repeats the matters stated therein. The Commissioner nonetheless sets out below her observations in respect of the Appellant’s Grounds of Appeal.

32. The Appellant’s request was for “all related material (statutory or policy) which lawfully permits or advises Humberside Police that it may refuse to investigate allegations of perjury unless a request to do so comes from the court”. The request was therefore specifically for information confirming that Humberside Police is not required to investigate allegations of perjury unless a request comes from the Court / has a discretion as to whether to investigate allegations of perjury unless a request comes from the Court. It was not a request for all information relating to perjury.

33. The Tribunal in Sophie Dunwell v Information Commissioner EA/2016/0289 commented that:

“10. … The rights under these provisions is for recorded information (s84 FOIA) … a public authority is not required to create new information. Nor is a public authority required to draw inferences from information it holds, or ask members of staff what they know about a specific subject. …

11. This is a very different from the position of the knowledge of an individual. An individual, looking at the records that the Appellant has examined, might well come to the same conclusion that she has, that a specific individual is indeed the developer. That however would be an interpretation of available information and a drawing of inferences from that information, it would not be the recorded information itself.”

34. It follows, therefore, that Humberside Police was only required to search for information that was already held. The Commissioner remains satisfied with the searches conducted by Humberside Police to find information within the scope of this request.

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35. The Commissioner notes that the Appellant asserts that there are inconsistencies in Humberside Police’s correspondence and submissions which suggests further information is or ought to be held. However, whilst the Appellant has concerns as to Humberside Police’s statements and position the fact remains that Humberside Police has carried out a number of searches and not found any information within the scope of the request. The substantive issues as to whether the statement from Humberside Police was correct or not, the legal or policy basis for Humberside Polices position, and the Appellant’s substantive grievance, are not matters for the Commissioner or Tribunal to address.

36. The Commissioner submits that, in accordance with Bromely above, the searches were appropriate and were sufficient to identify any information within the scope of the request, if held. The fact that Humberside Police has carried out these searches and not found any information within the scope of the request clearly demonstrates that no information is held on the balance of probabilities.

37. As noted above FOIA is only a means of access to recorded information. It is not an appropriate forum, nor is it the Commissioner or Tribunal’s function, to investigate and clarify Humberside Police’s investigative approach to allegations of perjury.

Conclusion

38. In light of the above, the Commissioner invites the Tribunal to uphold her Decision Notice and dismiss this appeal.

39. The Commissioner notes that the Appellant has requested a paper hearing in this matter. The Commissioner agrees that this is the appropriate course of action in this case and consents to a paper hearing.

Dated this 9 day of February 2018 Nicholas Martin Solicitor For and on behalf of the Respondent

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