Police Ombudsman for Northern Ireland v Information Commissioner & Anor

Section 30 of the Freedom of Information Act 2000 applies only where the public authority holding the information had a duty to conduct the relevant investigation and held the information for that investigation’s purposes. The investigation must be one conducted by that authority, not by another body. The character and purpose of the information may be relevant to determining why it was held, even where the statutory test refers to information held at any time. The exemption does not create a general relationship with disclosure duties in criminal proceedings. Concerns about future criminal investigations may engage other exemptions, but cannot extend section 30 beyond its statutory language.

Mr Rainey requested information from the Police Ombudsman for Northern Ireland concerning administrative arrangements for meetings between the former Ombudsman and journalists making the documentary No Stone Unturned. The Ombudsman relied on sections 30 and 44 of the Freedom of Information Act 2000.

The First-tier Tribunal had rejected the section 30 claim, holding that the information was not held for the purposes of the Ombudsman’s investigation into the Loughinisland Massacre and did not concern information obtained from confidential sources. The Ombudsman appealed on grounds concerning the identity and duration of the investigation, the effect of criminal disclosure duties, and the relevance of possible police investigations.

1. Appeal dismissed. The First-tier Tribunal’s decision did not involve an error of law.

2. Section 30(1)(a) required an investigation which the public authority holding the information had a duty to conduct. The Ombudsman’s investigation into the Loughinisland Massacre satisfied that requirement. The fact that other bodies might conduct related or subsequent criminal investigations did not make those investigations the relevant investigation for section 30.

3. The critical question was whether the remaining information had been held for the purposes of the Ombudsman’s investigation. The correspondence was created after the investigation had concluded and concerned only administrative arrangements for meetings. The timing was not decisive, because information could in principle be held after an investigation ended. Its nature and purpose were decisive. The First-tier Tribunal had therefore applied the statutory test correctly.

4. The structure of the Police (Northern Ireland) Act 1998 confirmed that investigations under sections 56 and 57 reach a point of completion when the investigator must submit a report. Sections 58, 58A and 59 then governed steps taken after the investigation, including criminal, mediation and disciplinary proceedings. The Ombudsman had neither reopened the investigation nor commenced a new one.

5. The reasoning in R (Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37; [2015] AC 225 did not require an extended meaning of investigation. Section 30 contained no link to disclosure duties under the Criminal Procedure and Investigations Act 1996, other legislation or the common law. Consequently, no issue of priority between FOIA disclosure and criminal disclosure arose.

6. Section 30(2) was also not engaged. The information did not relate to obtaining information from confidential sources. The decision was confined to section 30 and did not determine whether other exemptions, including section 31, might apply.

• 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), reference EA-2023-0218, decision dated 29 July 2024: section 30 was not engaged.