Police Ombudsman for Northern Ireland v Information Commissioner & Anor

For the purposes of Freedom of Information Act 2000 section 44(1)(a), information is exempt only where disclosure is prohibited by or under an enactment. Section 63 of the Police (Northern Ireland) Act 1998 prohibits disclosure of information received from a third party in connection with an Ombudsman function. It does not extend to all information held by the Ombudsman, or to material that would not have existed but for information received.

The words “in connection with” require more than a remote nexus with an Ombudsman function, but do not require a strong and close nexus. Section 63 must be interpreted independently of FOIA. Its criminal character is relevant, but does not justify expanding the ordinary meaning of its language.

Mr Rainey requested information from the Police Ombudsman for Northern Ireland concerning the Ombudsman’s second report into the Loughinisland massacre. The Ombudsman relied on the absolute exemption in section 44(1)(a) of the Freedom of Information Act 2000, contending that disclosure was prohibited by section 63 of the Police (Northern Ireland) Act 1998.

The First-tier Tribunal (General Regulatory Chamber), reference EA-2023-0218, decided on 26 October 2023, rejected the Ombudsman’s wide construction of section 63 and found that some information was not exempt. The Ombudsman appealed on statutory interpretation and the effect of section 63 as a penal provision. The central issue was whether the requested information was information received in connection with an Ombudsman function and therefore prohibited from disclosure.

1. Appeal dismissed. The First-tier Tribunal did not make an error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.
2. Section 63 of the Police (Northern Ireland) Act 1998 must be interpreted by reference to its language read as a whole and in statutory context. “Received” means taken in and indicates information coming from someone other than the Ombudsman or an officer. It does not mean all information held by the Ombudsman. The exception in section 63(1)(e), particularly its reference to the person from whom information was received, supports that construction.
3. Disclosure may be direct or indirect. Information may therefore be disclosed by communicating something which effectively discloses information received. Borderline questions concern the application of the statutory language, rather than ambiguity in its meaning.
4. The phrase “in connection with” may bear a broad or narrow meaning according to statutory context. In section 63 it requires more than a remote nexus between the provision of information and an Ombudsman function, but does not require a strong and close nexus. The information’s content is relevant only insofar as it assists in identifying that connection.
5. Section 63 must be interpreted independently of FOIA. Section 44 does not require an expansive construction merely because information may require protection. Other protections, including the duty of confidence under section 41 FOIA, may be available.
6. Section 63 creates a criminal offence. The principle against penalisation under a doubtful law is relevant to the objective assessment of statutory meaning, but the language was not doubtful. It did not justify adopting the Ombudsman’s wider construction.
7. The First-tier Tribunal’s decision therefore stood. Information substantively provided in connection with efforts to ensure accurate reporting of the Ombudsman’s public statement could fall within section 63, while information supplied only to arrange meetings was remotely connected and outside its scope.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal had not erred on a point of law.
• First-tier Tribunal (General Regulatory Chamber): decision dated 26 October 2023, reference EA-2023-0218; section 63 did not prohibit disclosure of all the information in question.