Edward Williams v The Information Commissioner

For the exemption in section 30(1)(a)(i) of the Freedom of Information Act 2000 to apply, a public authority must have a statutory duty to conduct an investigation with a view to it being ascertained whether a person should be charged with an offence. The authority conducting the investigation need not itself make the charging decision. The exemption may apply where one public body investigates to assist another body in deciding whether charges should be brought. Statutory wording prevails over explanatory notes and administrative guidance where it is clear. The exemption remains subject to the public-interest test.

The appellant requested the IOPC’s report concerning a death in police custody. The Information Commissioner accepted that the IOPC was entitled to rely on section 30(1)(a)(i) of the Freedom of Information Act 2000. The First-tier Tribunal dismissed the appellant’s appeal, finding that the IOPC had a duty to investigate and that its investigation was conducted with a view to the CPS determining whether criminal charges should be brought. Permission to appeal to the Upper Tribunal was granted. The central issues were whether the exemption applied where another public authority made the ultimate charging decision, and whether the First-tier Tribunal had erred in law.

1. Appeal dismissed. Subject to an immaterial error in the First-tier Tribunal’s description of the statutory test, its decision involved no error of law.
2. Section 30(1)(a)(i) of the Freedom of Information Act 2000 differs materially from section 31. It requires an investigation which the public authority has a duty to conduct with a view to it being ascertained whether a person should be charged. It does not require the investigating authority itself to make that determination.
3. The IOPC’s statutory functions and duties under the Police Reform Act 2002, including Schedule 3, required it to investigate once the Director General had determined that an investigation was necessary. The statutory scheme required consideration of whether the report indicated that a criminal offence may have been committed and, where appropriate, referral to the DPP. The investigation was therefore conducted with a view to the DPP determining whether a person should be charged.
4. The word “ascertain” connotes an element of determination, but DVLA v Information Commissioner and Williams concerned section 31 and did not materially assist in construing section 30(1)(a)(i).
5. The First-tier Tribunal’s reference to whether an offence “has been committed”, instead of whether it “may have been committed”, was a non-material slip.
6. Explanatory notes and ICO guidance could not displace the clear statutory meaning. The section 30 exemption was engaged. The appellant did not pursue the public-interest issue on appeal.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; no error of law was identified.
• First-tier Tribunal (General Regulatory Chamber) (Information Rights): appeal against the Information Commissioner’s decision notice dismissed on 20 February 2023 under reference EA/2022/0224.
• Information Commissioner: decision notice dated 16 August 2022 held that the IOPC was entitled to rely on section 30(1)(a)(i) of the Freedom of Information Act 2000.