Neil Wilby Media

A request made under the Freedom of Information Act, 2000 (the Act) by the author of this article, Neil Wilby, has resulted in a county police force deliberately breaking the law.

Lancashire Constabulary (Lancs), and its chief constable, plainly do not consider themselves bound either by Parliament’s edicts or the College of Policing‘s Code of Ethics and have declined to provide a response to that request, comprising of disclosure of a single document.

On 4th June, 2023, the applicant, Neil Wilby, wrote to Lancs, via MySociety‘s WhatDoTheyKnow platform, and asked for a copy of a sealed civil court judgment in which the Chief Constable, as corporation sole, was the claimant in successful injunction proceedings brought against a member of the public under the Anti-Social Behaviour, Police and Crime Act, 2014 (read more about that claim here).

The request couldn’t really be more simple. It is a single document, albeit requiring some redactions of personal data from what is suspected is its present form. It is required as part of a wider journalistic investigation.

Both Section 10 the Act and the College’s Authorised Professional Practice (APP), embodied within the Code of Ethics, are explicit in terms of how and when such a request should be provided with a response: PROMPTLY and, in any event, within 20 working days. The latter to be regarded as a backstop, not a target date.

In the event, if the police force dealing with such a request suspects that it may not be able to comply, it is required to notify the applicant without delay and propose an extension of time.

In the present case, that did not happen and the 20 working day deadline passed with no disclosure or an explanation for its absence.

By way of Section 45 of the Act, an internal review (or complaint in other words) of Lancs’ handling of the disclosure request, so far, has been sought and this was acknowledged by the force data protection team almost immediately. Absent of an apology or explanation of events (or lack of them) to date.

APP requires a police force to respond to such a complaint within a further 20 working days. It is merely a ‘good practice’ requirement under the Act.

The remedy available to any applicant, in the event of continued non-disclosure at the end of the internal review period, is a complaint to the Information Commissioner’s Office (ICO) which can take around a year to resolve. A fact of which most police forces are acutely aware and exploit ruthlessly.

Even if a complaint to the ICO is successful, the remedy, usually, is for the police force to be given up to 35 days more to disclose. Meaning that, if the particular request outlined here runs the full course, disclosure can be expected around September, 2024.

Assuming, of course, an appeal to the information rights tribunal is not lodged by either the applicant, or the police force, in which case another six to nine months can be added.

In the event, a response to the FOIA request came just one day after the publication of this article (5th July, 2023). It was, evidently, a ‘rush job’ and, presumably, to counter any escalating damage arising from the article.  Either way, it was flawed and led to  a response in these terms on the same day (6th July, 2023):

“Thank you for the response to my request, however, I am writing to request a second internal review of the handling of my FOI request ‘Copy of civil court judgment’. The first internal review concerned the breach of Section 10 of the Act.

“In the response to the request you have relied upon section 40 (5) and a NCND [Neither confirm nor deny] exemption.

“The Information Commissioner is very specific when dealing with this particular sub-section of the Act – indeed it is one with which I am familiar having succeeded at First Tier Tribunal over this very exemption against the North Yorks PCC – and you are required to specify which subsection of 40 (5) you seek to rely on:

“For convenience, I have included the relevant ICO Guidance at this link (scroll to the very bottom where there is a table of exemptions helpfully provided):

https://ico.org.uk/media/for-organisatio…

“Accordingly, you are invited to review your response and be specific as to, firstly, which precise section you seek to rely upon to exempt disclosure (if indeed that is your continuing position) and, secondly, to be more precise as to the detailed reasons as to why you rely on that particular section/sub-section”.

The response to both Internal Review requests came together in an email dated 25th July, 2023, well within the 20 working day limit.

There was an apology in these terms with regards to the delay in responding to the original request:

“We apologise that your response was not sent within the 20 working day period. The
response was provided within 24 working days on 6th July 2023. Although we strive to meet
compliance targets, it is not always possible due to the fluctuating workloads and our staffing
levels. Please accept our sincere apologies for any inconvenience this has caused you”.

The response to the second internal review is best described as a curiosity: Lancs claim they were correct to refuse disclosure in their first response to the FOIA request which simply cited Section 40 (5) as the exemption relied upon.

“Your Internal Review has now been considered and I can confirm that the information you
are seeking cannot be provided at this time. It is deemed that the exemptions applied in the
first instance were done so correctly.

They go on to further airbrush their discrepancy in this way:

“The request made was for data relating to a named individual and the outcome of a civil
court proceeding involving Lancashire Constabulary in 2020.

“Lancashire Constabulary is neither confirming or denying that information is held by virtue of section 40 (5B)(a)(i).

“The duty to confirm or deny does not arise in relation to other information if or to the
extent that any of the following applies—
(a) giving a member of the public the confirmation or denial that would have to be given to
comply with section 1(1)(a)—
(i) would (apart from this Act) contravene any of the data protection principles

“Lancashire Constabulary is aware of ICO guidelines and under both the original FOI and this
Internal Review we have considered all aspects of the NCND guidance in relation to the
above exemption.

That last part simply cannot be true as the ICO is explicit in setting out that when a public authority (or police force) relies on S40 (B) it must “In all cases, consider the details of the exemption. In any refusal notice under FOIA you need to explain exactly which subsection is engaged, and why (see page 5 of the ICO Guidelines here)”.

More importantly, under both the Act and College of Policing Authorised Professional Practice, the force should have issued a fresh FOIA response with the different exemption upon which they now rely, so that it could be challenged by a further Internal Review prior to any complaint being made to the ICO.

The full correspondence relating to the subject WhatDoTheyKnow FOIA request can be viewed on their website at this weblink. The sharp-eyed will note that the last post on that thread concerns a complaint made to the ICO regarding concerns over the Internal Review response.

That complaint to the statutory regulator will put Lancs to proof that the request actually identifies a living person, allowing them to hide behind NCND and ‘personal information’. Similarly, it is argued that a written court judgment, following a five day public hearing and when an ex-tempore version (read here) is already in the public domain, is not ‘personal information’.

Code of Ethics issues are to be raised also with Lancs’ Professional Standards’ Department.

On a wider public interest note, David Crompton (at the time the SYP chief constable) told the Commons Home Affairs Committee in 2014, as part of the Cliff Richard Inquiry chaired by Keith Vaz MP, that, if a police force responds with NCND, it means ‘Yes, we have the information”..

Mr Crompton and the present Lancs chief constable, Chris Rowley, were close working colleagues for a number of years at WYP.

Meanwhile, in the present day and whilst this class of blagging, blustering and law-breaking is condoned by senior officers, at least one of whom in Lancs must have quality assured their FOIA and Internal Review responses, public confidence, generally, in police forces and their chief constables, to conduct their business lawfully, ethically and professionally continues to ebb away. Particularly, as the breaches here are so brazen and in a public-facing setting.

One can only speculate, in those circumstances, what goes on behind closed doors at Lancs’ HQ. The recent policing, search and communications debacle over the sad death of a female member of the public in the nearby River Wyre only provides part of those answers.

A further clue is that a second FOIA request, made to Lancs on 30th June, 2023 (read here), has also failed to draw a response within the statutory time limit, inviting even closer journalistic scrutiny of this police force and its casual approach to the law of the land.

Follow Neil Wilby on Twitter (here) and Neil Wilby Media on Facebook (here) for signposts to any updates.

Page last updated: Monday 7th August, 2023 at 04h15

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Picture credit: Lancs Constabulary

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