Neil Wilby Media

For the second time in two months, Lancashire Constabulary (“Lancs”) has opted to break the law rather than make disclosure to a journalist over a concise, public interest request for information.

A lengthening report of the first request, made under the Freedom of Information Act (‘FOIA” or “The Act”), appears elsewhere on this Neil Wilby Media website at this link. It concerned a civil court judgment from March, 2020 in which Lancs was the successful applicant.

The force, in a belated response, say that they can ‘neither confirm nor deny (NCND)’ whether the information is held, citing a risk of disclosing ‘personal information’. For the purists, or FOIA nerds (which includes the author of this article, Neil Wilby), the exemption relied upon is section 40(5B)(a)(i).

Section 40(5) is what is termed an absolute, class-based exemption. Therefore, Lancs say that neither a public interest test nor evidence of harm in disclosure needs to be outlined.

Neil Wilby disagrees profoundly with the application of that exemption and that first request now rests with the Information Commissioner’s Office for their view on the issue. It has been put to the statutory regulator that Lancs, in common with a number of other police forces and policing bodies over the years, had made a pre-formed decision not to disclose and reached for the NCND exemption to frustrate and inconvenience an enquiring journalist.

The second request, made on 30th June 2023, did not produce a response within the period prescribed by law, either.

On 1st August, 2023 this message was relayed to Lancs by the applicant via the iconic WhatDoTheyKnow public platform:

“I am writing to request an Internal Review of Lancashire Constabulary’s handling of my FOI request ‘Operation Malaya’

“Section 10 of the Freedom of Information Act states:

“Time for compliance with request.
(1) Subject to subsections (2) and (3), a public authority must comply with section 1(1) PROMPTLY and in any event not later than the twentieth working day following the date of receipt.

“There are many rulings from First Tier Tribunal (Information Rights) judges to the effect that , under the Act, the twentieth working day is a backstop, not a target date. ‘Promptly’, is the key indicator.

“The instant request is very simple in its construction and the retrieval of the requested information, very obviously, should place no undue burden on a well-run police force with efficient information management processes.

“It is, therefore, profoundly disappointing, not least as the applicant is a newsgatherer authorised by the National Police Chiefs Council and the public authority is a law enforcement agency, that Lancs chooses to disrespect Parliament in this way and on a public platform with a substantial and influential audience reach and penetration, no less.

“Your force is, accordingly and respectfully, encouraged to remedy this unlawful defect at the earliest available opportunity.

“For the benefit of readers and fellow users of WhatDoTheyKnow, this is the second time, within the space of less than two months, that Lancs has conducted its affairs in this way. That suggests a pattern of police misconduct that warrants further journalistic investigation.

The force responded and logged the Internal Review request on the same day, promising a response ‘in due course’. There was no indication as to when they intended to provide a finalisation of the FOIA request. Or any apology or explanation for the unlawful delay.

The information sought regarding Operation Malaya forms part of a wider journalist probe, not least as it features in a civil claim against Lancs currently grinding its way through Preston County Court, alleging investigative and complaint handling failures of the force over a lengthy period,

This article will be updated once the FOIA request is finalised by Lancs. But the signs, at present, are that the second request will prove to be as controversial and hotly disputed as the first.

The twin pillars of the Act, firstly, that requests are applicant blind and, secondly,  there is a presumption to disclose, do not appear to carry much weight at Lancashire Constabulary HQ.

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 08h15

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Picture credit: Lancs Constabulary

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