Few, if any, journalists or information rights practitioners will mourn the forthcoming departure of the Information Commissioner, Elizabeth Denham, writes Neil Wilby.

A relentless self-promoter, she has, through inattention to the detail of running her own organisation, and recruiting and deploying sub-optimal managers, allowed the complaints system around the Freedom of Information Act (the Act) to devolve into an utter farce. That is well rehearsed elsewhere on this website, on social media and in the regional and national media.

Palpably poor decision making, apparent laziness, and a policy of line of least resistance, has allowed many public authorities, and particularly policing bodies and police forces, to run rings around the rights of those who make information access requests. Particularly, those who do so as an integral part of their vocation.

Under section 50 of the Act an applicant (the person making the request) has the right to complain to the Information Commissioner’s Office (ICO) if the internal review process has been exhausted with the public authority dealing with the request. An internal review is, in effect, a complaint about how the freedom of information request has been handled.

The outcome of that review process, in most cases takes over two months from the date the access request is first made. The ICO is currently taking up to a year to deal with complaints sent to them. Which means, in most cases, that the information requested for disclosure is stale by the time the decision is made by the statutory regulator to invite, not enforce, the public authority to comply. If, of course, the complaint is upheld.

On 16th June, 2021 an information rights request was made, under the Act, to West Yorkshire Police (WYP). This is the full text:

“Operation Platinum is the codename given by WYP to the investigation into the murder of Joe McCafferty in May, 1997.

“Please disclose the following information by way of the Freedom of Information Act, 2000:

“1. For each of the financial years ending 31st March, from 2015 until 2021, please give the expenditure allocated to this investigation.

“2. Please give the name and rank of the Gold Commanders who provided oversight on this murder investigation from 1997 until the present day (16th June, 2021), together with the period, in years, they served in the role (for example, ACC Sam Smith 1997-2003).

“3. It is accepted that in 1997 operational codenames were not routinely allocated and, if there was one generated at the time of the murder, it may have been different to Platinum (which is probably the one allocated to the cold case review). If there are other codenames, please disclose those also, together with applicable dates”.

Joe Edward McCafferty was a seven year old boy who was murdered in 1997, in the most horrific of circumstances, when an arsonist poured petrol through the letterbox of his aunt’s home in Marsh, Huddersfield and set it alight. The access rights applicant is Neil Wilby, who is working closely with the bereaved mother, the aunt and two of their close friends whom, all together, form the campaign group still seeking justice for Joe.

The hunt for his killer is the longest running unsolved child murder in the country. Mainly, the family and campaigners say, because of missed opportunities in the golden hours and days following the arson attack. There is also the taint of two detectives who had prominent roles in the murder investigation now having criminal convictions, and another Senior Investigating Officer (SIO) on the case who should have been prosecuted, on the clearest of evidence, but the force opted to cover up for him and allow him to retire instead.

It is trite that the bereaved family has been treated appallingly by the police force, from the day of that most awful of incidents right up to the present time. Operation Platinum is the archetypical ‘fish file’ that no-one in West Yorkshire Police really wants to go near.

Present day officers are fearful of breaking the conventional ‘omerta’ over exposing failings of their predecessor investigators.

Apologies are made to the bereaved mother, Tracey McCafferty, regularly, but the request to bring in a different police force to start an investigation afresh has, so far, been repeatedly rebuffed.

Much more will be heard about that issue in the coming weeks as a series of articles is planned, alongside a dense mainstream media campaign, commencing on 30th October, which would have been Joe’s 32nd birthday.

At first, WYP refused Neil Wilby’s information request in its entirety:

“WYP can neither confirm nor deny, that it holds any information regarding a Joe McCafferty as you have requested, as the duty in s1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of Section 30 (3) Investigations and Section 40 (5) Personal Information”. The letter carrying the refusal was dated 13th July, 2021.

A response to WYP was sent on the same day:

“I am writing to request an internal review of WYP’s handling of my FOI request ‘Operation Platinum’ as the exemptions relied upon to frustrate disclosure are unsustainable in law.

“Further, and in any event, the Public Interest Test has been misapplied. The balance should fall strongly in favour of disclosure. Not least because the bereaved family has lost faith in the investigating force and there are allegations of serious incompetence and/or impropriety in the conduct of the murder enquiries”.

Rather curiously, the force replied asking if the information request concerned the victim or the police investigation. As it was headed – in big bold letters – ‘Operation Platinum‘ and the questions concerned the investigation and not the deceased child, one might have thought that was blindingly obvious to anyone else apart from those dealing with the request?

A pointed reply to WYP was made, in consultation with the bereaved mother. So tired of being given the runaround by the police for over 24 years:

“The information request did not concern the person named by way of background.

“The requested disclosure concerns only Operation Platinum. It is why the section 40(5) is a red herring – and a clue that WYP is going to frustrate disclosure at any cost.

“A point I made, with some emphasis, to the bereaved mother in this unutterably sad case when I met her two weeks ago. During which, in as remote a location as could be arranged in the entire county, two police vehicles turned up within the first 90 minutes of that meeting getting under way (a liveried Ford Mondeo Estate bearing dog patrol markings and a liveried Peugeot 306 neighbourhood patrol car). With no conceivable business in such a location which, otherwise, probably sees a police vehicle once or twice a year, if that.

“The section 30(3) exemption is similarly fanciful – and is already causing further distress to a family looking for answers fairly and legitimately obtained. Not shameful obstruction and harassment at every turn.

“Finally, please allow me the liberty of being blunt: Those in the relevant business area(s), and involved in this disclosure request, need, in my respectful submission, to take a long hard look at themselves and question whether public service is really the appropriate vocation for them.

“Accordingly, and in order to mitigate the distress to a bereaved mother, I look forward to a prompt disposal of the internal review request and disclosure of the requested materials”

It prompted a welcome, if belated, change of direction by WYP, but they took the maximum time available (20 working days) to provide, on 10th August, 2021, what was still a weak, badly thought out, unsatisfactory response from a named disclosure officer working in the force’s information rights team. To spare his blushes, as he is believed to be of junior rank, he is not named here:

“Having now conducted my investigations following your request for an internal review, I can confirm the following in relation to your original request:

“1. For each of the financial years ending 31st March, from 2015 until 2021, please give the expenditure allocated to this investigation.

“West Yorkshire Police hold no information in relation to this request. An investigation is considered to be part of the organisation’s business and Officers will conduct the work as part of their daily role.

“This case forms part of the workload of the Homicide and Major Enquiry Team, who’s remit is wider than homicide and manages both historic cases as well as reacting to new
demands. As such, staff are not specifically assigned to one case but resources will be
flexed in and out of an enquiry as required, in response to Forensic findings, Intelligence, anniversaries etc.

“2. Please give the name and rank of the Gold Commanders who provided oversight on this murder investigation from 1997 until the present day (16th June, 2021), together with the period, in years, they served in the role (for example, ACC Sam Smith 1997-2003).

“Unless there are exceptional circumstances, West Yorkshire Police do not appoint Gold
Commanders to provide oversight on murder investigations, there was no Gold Commander for this particular investigation.

“3. It is accepted that in 1997 operational codenames were not routinely allocated and, if
there was one generated at the time of the murder, it may have been different to Platinum (which is probably the one allocated to the cold case review). If there are other codenames, please disclose those also, together with applicable dates.

“According to our records, there is not another operational name.

“As further information has been provided, I have therefore upheld your complaint”.

Again in consultation with the bereaved mother, who was, contemporaneously, attempting to seek information directly from the present SIO on the murder investigation, Detective Chief Inspector Sharron Kaye, a second internal review request was made to WYP on 10th September, 2021. This time in these terms:

“I am writing to request a second internal review of West Yorkshire Police’s handling of my FOI request ‘Operation Platinum’. following disclosure made as part of the first internal review.

“1. Financial information – there is a significant tension between an account provided by a former qualified/approved senior investigating officer employed by WYP and the response provided in the IRR. You are invited, accordingly, to re-consider your version.

“2. Gold Commander – again there is a tension between the response provided by WYP and information available elsewhere. Not least, by reference to the following practice manuals for murders and major investigations.

murder-investigation-manual-redacted.pdf (college.police.uk) library.college.police.uk

“3. Operational codename – the response provided does seem feasible but in the light of concerns raised in paras 1 and 2 above, WYP is invited to apply a fresh pair of eyes to the available records.

“In conclusion, the original response to this access request, and the behaviour of the force generally towards the bereaved mother in this case, makes for a troubling matrix on any view.

“It would, therefore, provide a small measure of re-assurance, and give the appearance of being reasonable and proportionate, if WYP sought external, independent assistance in finalising this second internal review request.

This was the curt response from WYP on the same day:

“If you are unsatisfied with the response received following your internal review please follow the complaints procedure outlined within the letter.

“If you would like to make a new FOI request please advise accordingly”.

It drew this reply from Neil Wilby, venting further the frustrations and distress of Tracey McCafferty over the latest example of poor behaviour by the police force who have failed her, her son and her family so very badly:

“I refer to your response received a few moments ago. It is wrong both in fact and law: An applicant is entitled to an internal review following disclosure made by a public authority. Whether that is by way of finalisation of a request or first internal review.

“‘Cut and run’ is not an option open to WYP in this instance. For no other reason than I will not, as a journalist and “social watchdog”, permit it.

“As before stated, the entire approach of WYP towards both this applicant, and the bereaved mother at the heart of the disclosure request, is very seriously troubling. For emphasis, I repeat what was said at the time of that first internal review request : Those involved in the ‘cover-ups’ around this freedom of information request, and indeed the wider Op Platinum investigation, need to look inward and reflect upon whether public service is really a suitable vocation for them”.

That did not receive the courtesy of acknowledgement, or reply, from WYP. Adding further to the distress and discontent of a bereaved family.

On 12th October, 2021, just beyond the 20 working day period allowed for response to the second internal review, the force were notified by Neil Wilby that a section 50 complaint had been made to the Information Commissioner’s Office.

In effect, WYP had managed to waste four months since the information request was first made and indulged themselves with what, taken at their face, are responses that, at best, are designed to obfuscate and at worst, to deceive.

On 19th October, 2021, unusually quickly for them, the ICO responded saying the complaint had been accepted and setting out, by rote, the procedure for dealing with it, as they would do with any applicant in these circumstances. The Operation Platinum request was going to the back of a very long queue.

On the same day, a reply was sent to the ICO. An uncomplicated application and one made in full expectation that it would receive a favourable response:

“This is a very difficult, sensitive matter: I am working closely with the bereaved mother of a murdered 7yo boy.

“It is the longest unsolved child murder in England and Wales – over 24 years without justice.

“In these exceptional circumstances, it would be appreciated if the ICO could attend this matter as a priority”.

But it was not to be and, to make matters worse, Neil Wilby was actually sat in a meeting with Tracey McCafferty, and her fellow campaigners, when the response from the ICO came through the following day. It was emailed on behalf of Laura Tomkinson, who is described as ‘Group Manager’ of the ICO, so, quite senior in the organisation, it is fair to assume. Not least because she deploys someone more junior to send her emails, rather than dealing with a matter of such gravity as this, personally, as one might reasonably expect:

“Your request to expedite this complaint has been considered by a manager.

“Whilst we are extremely sympathetic to your request, we will not be expediting this particular complaint.

“There are very few instances in which cases are expedited by the Commissioner.

“All of the complaints we receive are very important to us and to those who submit them. To be fair to everyone, we deal with them in date order of receipt. Unfortunately, this case cannot be expedited ahead of complaints submitted to us on an earlier date.

“When your case reaches the top of the casework queue it will be allocated to one of our Case Officers who will then contact you directly to explain how they intend to progress your complaint.

“Your case was received on 12 October. We would expect to be able to allocate your case to a Case Officer in approximately 6 months time. Please note that this is an estimate only.

“The Information Commissioner’s Office has experienced increased demand for its services and this has meant that it is taking a longer period of time to allocate complaints.

“We apologise for the delays experienced and thank you for your patience”.

It is a crass response, absent of cogent reasoning and, particularly so, in failing to explain what the parameters are for the Information Commissioner to classify the expedition of a case as exceptional. Ranking this case alongside an unresolved request to a parish council for the cost of pencil sharpeners would seem to a bereaved family incredibly poor judgement.

It would, also, have taken less time for Ms Tomkinson to write to WYP, rather than try to find reasons for the ICO to do nothing for SIX months.

The ICO decision has, unsurprisingly, been appealed, with a request that Elizabeth Denham considers the matter herself.

Both she and Ms Tomkinson have been offered right of reply to this article.

A second request was made to West Yorkshire Police regarding Operation Platinum on 15th October, 2021. It’s progress can be tracked here.

A ‘Justice for Joe McCafferty’ petition calling for a different police force to investigate his murder has now passed 10,000 signatures following publication of this article. Your name can be added to the campaign at this link. 5,700 signatures have been given electronically and a similar number on the paper petition. The latter almost entirely signed by local people concerned that a killer (or killers) is still on the loose in Huddersfield.

UPDATE: The email sent on Thursday, 21st October requesting an appeal against the decision has still not received the courtesy of acknowledgement, let alone a substantive response. It is difficult to comprehend what could have been a greater priority for the Information Commissioner since then, other than mitigating the anxiety and distress of a mother bereaved in the most horrendous of circumstances.

Perhaps she is absorbed with ordering another batch of expensive chocolates for her staff (read more here)?

Similar can be said about West Yorkshire Police: Whilst not contacted directly they are highly aware of this article, yet have done absolutely nothing to address the core issue; which is addressing their lawlessness, and lack of candour, in dealing with freedom of information and internal review requests concerning this horrendous murder.

It would take a competent disclosure officer around 3 to 4 hours to dispose of both unresolved information requests. Not a lot to ask, an independent observer might very fairly point out?

Page last updated at 0755hrs on Saturday 23rd October, 2021

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Photo credit: ICO

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