The Commissioner's decision notice (FS50138960) stated that the entire report comprised the requester's personal data because it was compiled in response to her complaint. The Commissioner retreated from this position during the appeal to the Tribunal, but maintained that the information that was not her own personal data was the personal data of third parties which was exempt under s.40(2).
Applying the Court of Appeal's judgment in Durant v Financial Services Authority, the Tribunal found that not all the information in the report comprised personal data:
...it is clear that not all the information in the Report comprises personal data. For example, we consider that there is nothing in the Introduction, and very little in the Glossary of Terms and Abbreviations, or in the Executive Summary and other general background material that comprises personal data of either the Appellant or third parties. Most of that information does not identify any living individual, much less does it contain any information which could be said to be personal or biographical of any person. In the absence of any other exemption being engaged, such information must therefore be disclosed.
We accept that fairness is in fact a broad concept, capable of embracing a range of considerations. In particular, we accept that fairness should not be considered from the point of view of the data subject alone. It is necessary to also consider the interests of the data user (here, the Appellant), and also, where relevant, the wider considerations of accountability and implicit in FOIA.
When considering the information that related to individual police officers the Tribunal was referred to its decision in Waugh v Information Commissioner and Doncaster College, which concerned information relating to the dismissal of the Principal of Doncaster College and where the Tribunal said there is a “recognised expectation that the internal disciplinary matter of an individual will be private”. But it concluded the present case was different for the following reasons:
First, the focus of the Report is about the way in which the Public Authority carried out the inquiry rather than being about any particular officer. While the Report does consider certain complaints against individual officers, the information about disciplinary consequences is limited to a brief mention that management advice is recommended. We also note that the Public Authority’s letter to the Appellant and her husband dated 5 June 2003 (referred to in paragraph 27 above), contains essentially the same information. In particular, it sets out the names of individual officers against whom disciplinary action (by way of management advice), had been taken. In addition, the redacted Report as disclosed to the Appellant in response to her subject access request, also contains names of certain officers, identifies complaints against them and sets out the Report’s findings and recommendations. Although these disclosures were made to the Appellant and not to the world at large, as already noted, they were not made in confidence, and it is clear that they have not been treated in confidence. Indeed it would be surprising if they had been since one of the Appellant’s stated objectives has been to bring about changes in the way investigations are carried out and how families of the victim are treated. In these circumstances, we consider that disclosure would be fair.
We do, however, consider that in relation to certain parts of the Report which records opinions expressed by officers in what appear to be an “off the cuff” manner, there would likely have been a reasonable expectation that they would not be disclosed. We consider that disclosure of such information would not be fair.
For the most part, however, for the reasons set out above, we find that disclosure of the information is fair.
There is also a wider public interest in transparency and accountability in relation to the investigation of serious offences and in ensuring that mistakes made are identified and not repeated. Against these interests, are the interests of the police officers in the privacy of their personal data. The protection afforded by condition 6 is in relation to unwarranted disclosure. The factors set out above which point to the fairness of the disclosure, in our view, also support a finding that on the facts of this case, any prejudice to the rights and freedoms or legitimate interests of the police officers is not unwarranted.
In relation to the information about the offender, the Tribunal concluded that although some of the information was his sensitive personal data, some of it should nevertheless be disclosed:
We consider that the objective of transparency and accountability of the Public Authority’s handling of the investigation can only properly be achieved through the disclosure of the Report so we find that disclosure is necessary for the legitimate interest of the Appellant and wider public. In our view, disclosure cannot be said to be unwarranted by reason of prejudice to the rights and freedoms of the Offender, where the information is already in the public domain and has been put there by the Offender himself. For the same reason, we consider that in relation to information that is sensitive personal data, condition 5 is met (information that has been made public as a result of steps deliberately taken by the data subject).
We do not, however, consider that disclosure of the personal data of the Offender, as contained in the Report, would be fair in all cases. In particular, we do not consider that detailed matters concerning the Offender’s past employment or allegations of other offences with which the Offender was either not charged, or which were not pursued against him, can be said to be fair. These are not matters that relate directly to the purpose of the Report, or to the Appellant’s or public’s interests identified above. That information, therefore, is exempt.