Edward Williams v The Information Commissioner

For the purposes of the law-enforcement exemption in section 31(1)(g), read with section 31(2)(b) of the Freedom of Information Act 2000, an inquest is not a function directed to ascertaining whether a person is responsible for improper conduct. Its statutory purposes concern identifying the deceased and determining how, when and where the death occurred, including its circumstances where necessary to avoid a Convention breach. Further, prejudice to public confidence in the outcome of proceedings is not, by itself, prejudice to the proceedings or to their ability to reach a fair outcome. A tribunal must identify the applicable interest, establish that the alleged prejudice relates to it, demonstrate causation, and assess whether the risk is real and significant.

An appellant challenged the refusal by Devon & Cornwall Police to disclose a custody record under the Freedom of Information Act 2000. The Information Commissioner upheld reliance on section 31, and the First-tier Tribunal dismissed the appeal and upheld the Decision Notice. The First-tier Tribunal held that an anticipated inquest fell within section 31(1)(g), read with section 31(2)(b), and that disclosure risked undermining public confidence in IOPC misconduct proceedings and the inquest. The Upper Tribunal considered whether those conclusions involved material errors of law.

1. The appeal was allowed. The First-tier Tribunal’s decision involved material errors of law, was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and the case was remitted for reconsideration by a panel of the First-tier Tribunal at an oral hearing.
2. The statutory purposes of an inquest are narrowly defined by sections 5 and 10 of the Coroners and Justice Act 2009. They concern the identity of the deceased, how, when and where the deceased came by death, and, where necessary to avoid a Convention breach, the circumstances of the death. An inquest may not determine criminal or civil liability. It therefore does not involve exercising functions for the purpose of ascertaining whether a person is responsible for improper conduct within section 31(2)(b) of the Freedom of Information Act 2000.
3. The Upper Tribunal accepted that section 31 requires a prejudice-based assessment followed by the public-interest test. The tribunal must identify the applicable interest, determine whether the alleged prejudice relates to that interest, establish causation between disclosure and the prejudice, and decide whether the risk is real and significant.
4. A risk that disclosure will undermine public confidence in the outcome of an investigation or inquest is not, by itself, prejudice to the relevant law-enforcement function. The relevant prejudice must concern the process of ascertainment or the ability of the proceedings to reach a fair outcome. The First-tier Tribunal’s reasons did not clearly identify such prejudice in relation to the IOPC proceedings.
5. The First-tier Tribunal’s errors were material. Its public-interest balancing exercise relied substantially on the concerns that were legally irrelevant or did not engage the exemption. It had not considered the alternative exemptions in section 31(1)(a), (b) and (c), so the outcome might have been different.
6. The remitted tribunal was directed to reconsider the case at an oral hearing. Any further evidence was to be provided within one month, and the new panel was not bound by the previous First-tier Tribunal decision.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal decision of 30 June 2021 was set aside for material error of law and the case was remitted for reconsideration.
• First-tier Tribunal (General Regulatory Chamber) (Information Rights): appeal dismissed and the Information Commissioner’s Decision Notice upheld.