PUBLIC INTEREST TEST PROCESS
Applicant Name: Shona SCOTT / Reference: SM289/13The requests to be considered are;
What childrens establishments were involved in the Operation?
EXEMPTION / FAVOURING DISCLOSURE / FAVOURING NON-DISCLOSURESection 40(2) / The disclosure of the names of the children’s establishments requested would enlighten the public as to the extent of the investigation and make them aware which such establishments had been investigated by Operation CARE (and therefore which ones had not). That may encourage other persons to approach the police if they know of other allegations in respect of other establishments which were not investigated from the list, if provided. This may assist in the detection of crime. / Many of the ‘children’s establishments’ requested were and perhaps still are foster homes and the address by which the scene of enquiry is held is/was the personal home address of private individuals who were and perhaps still are foster parents. A scene of enquiry was not created unless a formal allegation had been received. To provide that address in answer to this request would be to identify individuals who resided at the address at the time of the alleged offence firstly as foster parents and secondly as foster parents who were subject of allegations in respect of that role. Many people in the neighbourhood of such an identified property would be able to identify relevant individuals conclusively. The individuals could also identify themselves. A response therefore constitutes both persona data and sensitive personal data. On the basis that the request does not ask for a differentiation between establishments from which a person was convicted of offences, it would be neither fair nor lawful to provide addresses of foster homes that had been subject of investigation. In addition the final report also contains names of suspects.
Section 38 / It is arguable that naming children’s establishments would provide the public with an indication about which children’s homes had been subject of allegations and therefore which had not. That may be viewed as an opportunity to judge which establishments were ‘safer’ than others and give the opportunity for individuals to take action to protect themselves or others from harm. / Providing the names of the children’s home provides nothing other than its’ name. It gives no indication of the degree or circumstance of the investigation or its’ outcome. This negates the aspect mentioned which could favour disclosure because insufficient information is provided by which informed decisions about personal safety can be made. The establishments were all subject of investigation at least a decade ago and therefore the ability to make informed decisions about them in a contemporary setting is further diminished.
It would not be a police tactic to publicise a premises which is believed may be harmful to the public as the sole method of dealing with a perceived or real hazard. Instead, if the premises represented such danger, other tactics than mere publicity would be deployed to remove the danger.
The practice of publicising any details of alleged child abuse locations, and by so doing identifying a group or an individual who might be responsible for such offences is to be avoided if the health and safety of the occupants or workers in such establishments is to be protected (a core police function).
Regrettably, there is sufficient evidence to suggest that providing any details about locations or individuals who have been accused of child abuse, whether founded or unfounded, have resulted in fatalities and civil unrest.
Recent evidence of this is the murder of Bijan Ebrahimi who was beaten to death and his body set alight in Brislington in July 2013. It was reported by the media that his killer,believed his victim was a paedophile because he had been seen taking pictures around the Bristol estate where he lived. But police say there was no evidence for such an accusation.
There are unfortunately many other real examples of child abusers or mistakenly accused persons or suspected child abusers who have been subject of the law having been taken into the hands of individuals with often harmful and sometimes fatal effect.
I have considered the fact that the information is at least a decade out of date and it may be understood by many that what was then is not now. However, in view of past events,I cannot reconcile the public interest in releasing the information requested as being heavier than the potential for harm to come to individuals or premises or businesses by publicising what may be viewed as ‘targets’ by some in the public domain. The fact that the information is now historical further detracts from any public interest that there may be in releasing other contemporary information of such a category.
I have also considered whether some of the named premises are no longer in existence and, if not, whether the harm in naming them would be diminished. Apart from that being time consuming, I am not convinced that even if pointing out that a premise is no longer a children’s establishment, the potential for vigilantism would not be removed.
Section 30 / The names of the homes in this context were held only for the purposes of an investigation which Merseyside Police had a duty to conduct for the purposes in subsection (a)(i) and (ii). It is not in the public interest to name every scene of enquiry investigated by the police. Such disclosure would dissuade public cooperation with police enquiries were it to become known that such information might routinely be placed into the public domain.
Section 31 / The disclosure of the names of the children’s establishments requested would enlighten the public as to the extent of the investigation and make them aware which such establishments had been investigated by Operation CARE and therefore which ones had not. That may encourage other persons to approach the police if they know of other allegations in respect of other establishments which were not investigated from the list, if provided. This may assist in the detection of crime. / For the reasons stated above under the section of section 38 favouring non-disclosure there is a real likelihood that a publication of what is now historical information will increase the likelihood of crime being committed due to the intense public feeling in respect of child abuse allegations.
Crime can be more effectively prevented and detected by using other means that by publication of premises that have been subject of investigation, often with no prosecution arising from it.
Section 43 / Publication of information about private companies or enterprises may prejudice their business interests unfairly. This is true due to the passage of time since the operation and particularly the case if the investigation did not result in any prosecution.
Section 44 / A number of the homes that were investigated were subject of Court reporting restrictions during the period of the trial and, in some cases, for the period of any anticipated trials in respect of the same home. This was because of the harm perceived by the Judge in respect of the Court process. Publication would at that time have been a contempt of Court and if some restrictions have not been lifted by the Court would exempt some of this information from publication under section 44(1)(c) a contempt of Court. To safely release this information without fear of contempt it would be necessary to identify exactly which establishments were subject of reporting restrictions and confirm that, in each case, the restriction is no longer in force. This would be a very lengthy process and may invoke section 12 of the Act. However, I am convinced that the risks to health and safety (s38) and the danger of breaching the data protection Act in some instances is sufficient to refuse to name the establishments without recourse to section 12 or 44.
Decision: / Under section 40 foster homes will not be named in order to prevent the identification of individuals.
Under section 38, none of the homes will be named thereby protecting the establishments from damage and the current or previous staffs from harm.
Under section 31 none of the homes will be named in order to prevent crime as described under section 38 above.
It was a police tactic not to publicise the names of homes during the investigation and this was supported by the Judiciary by way of reporting restrictions. Unfortunately, even after 10 years there is contemporary evidence to show that persons suspected of child abuse, albeit in many case wrongly, are placed at increased risk by the merest whiff of alleged wrong doing in this arena.
I can see a public interest in providing details of the number and types of establishment which would provide an indication of the scale of the Operation. However, at the moment there is no ongoing case at any of the establishments and can find neither a policing purpose nor a public interest in naming them. If in the future there are further developments in respect of one or more of the children’s establishments then there may become a public interest in placing that establishment into the public domain that outweighs the current balance as I have found it to be against disclosure.
Prepared by: / G.E. Thomas, Disclosure Manager
Consultants on case:
Date of PIT: / 31/12/2013
What is ‘Public Interest?’
The ‘public interest’ refers to considerations affecting the good order and functioning of community, government and public service affairs, for the well being of citizens. In general, a public interest consideration is one that is common to all members of the community (or a substantial part of them), and for their benefit.
The public interest should normally be treated as distinct from matters of purely private or personal interest. Some public interest considerations may however apply for the benefit of individuals, for example: -
• the public interest in public services respecting privacy principles in their handling of information about the private affairs of citizens;
• the public interest in individuals receiving fair treatment, in accordance with the law, in their dealings with public services.
The public interest does not however extend to matters, which are merely of interest to the public to know in the sense of gratifying curiosity or providing amusement.
The basic structural principle of the Freedom of Information Act 2000 is that, in a democratic society, interested citizens should have the right to examine the operations of their public services through access to information and records held by those services. This ‘individual right of access’ holds good except to the extent that disclosure of certain information would be harmful to the wider public interest, or indeed to specific private interests deemed worthy of protection.
The notion of public interest is a unifying principle throughout the scheme of
the Freedom of Information Act 2000. The exemption provisions reflect Parliament’s assessment of the public interest considerations, which may warrant information being withheld from access. Indeed, in some cases, Parliament decided that the public interest considerations favouring nondisclosure were so strong as to make the exemptions absolute, irrespective of whether or not there were also strong public interest considerations favouring disclosure.
However, Parliament included, in most exemption provisions, a requirement to consider the ‘public interest test’, which would require disclosure of information or records where the public interest considerations favouring disclosure outweighed those favouring non-disclosure.
The Public Interest Test
The public interest test (PIT) in itself is a somewhat complex matter with many potential interpretations of each and every scenario. To provide a definitive guide to the application a decision to be taken on each and every scenario would not be possible. There are many facets to each problem with greater or less relevance and each of these can tip the balance in a different direction.
It is the intention of this guidance therefore to try to provide a methodical and clear framework. Use of the framework will provide a clear and unambiguous audit trail of fact interpretation to support the making of a balanced public interest decision.
Through the use of the framework, the interpretation by each user will be clear and any reviewer will clearly understand the interpretation used for each area. This enables focussed debate on interpretations in specific areas rather than an all-embracing review. In itself, this method will further focus review on many areas – an appreciation of other points of view and provide an informed review process for a well considered and balanced review or appeal decision.
From the outset however, a decision maker/reviewer should consider starting from the standpoint that is the essence of the Act. This standpoint is simply that information/records should be disclosed unless the structured and reasoned application of an exemption and the public interest test considerations favours non-disclosure.
It would be good practice to record in some format the structured reasoning for applying both the exemption and the considerations within the application of the public interest test, so that they are obviously clear and unambiguous for future reference.
If we are applying a structured and methodological application of a framework which allows this clear ‘audit trail’ of the decision between disclosure and nondisclosure we also need to record the comparative strengths and importance of each area of the matter in issue.
It should not be enough that a matter in issue relates in some way to that which gives rise to a public interest consideration. For public interest considerations to be relevant in the application of the public interest test, there must be a direct link between the disclosure of the information in issue and the advancement of, or prejudice to, the public interest.
If there are no public interest considerations favouring non-disclosure, the relevant information/record (or part thereof) is not exempt. If it can be shown that there are public interest considerations favouring non-disclosure, the matter will be exempt only if those considerations outweigh all public interest considerations favouring disclosure.
Public interest considerations that are not valid or can only be relied on in limited circumstances
Embarrassment – to the Force, service or an individual officer is not a valid public interest consideration favouring non-disclosure.
High Office – the fact that the person giving or receiving the information/record holds high office is not in itself sufficient to weigh against disclosure; an assessment of the consequences of the disclosure of the particular issue is required.
Policy development – the fact that information/records may relate to policy development does not, of itself, establish a public interest consideration favouring non-disclosure.
Candour and frankness – a claim that disclosure would prejudice the supply of frank and candid information in the future should be carefully considered. Claims could only be accepted where there is a very particular factual basis for supporting the view that there is a tangible prospect of harm to the public interest. The possibility of future publicity through disclosure should act as a deterrent. It should provide an incentive to improve the quality of the information/record before disclosure, and that would be in the public interest e.g. the early release of information about a crime, which may not have been fully substantiated before the release of the information.
Disclosure of confusing or misleading information – in most cases the Force would have a means of avoiding such a prejudicial effect by clarifying that matter and disclosing additional information which accurately explains the situation.
Information/records held do not fairly reflect the reasons for a decision. Where this occurs the Force would have the opportunity to provide additional information that accurately explains the reason for the decision.
Draft documents – there is no presumption that the disclosure of a draft document will be contrary to the public interest. There may be benefits to public access to draft material, to further the accountability and public planning process. Disclosure of this kind allows members of the public to examine the process by which the service/Force has come to a particular decision
Government Protective Marking Scheme – the protective marking of material under the Government Protective Marking Scheme will not, in itself, be valid grounds for withholding information. The content of the material should be examined and the relevant exemptions applied.
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The types of exemption
Exemptions are categorised in two ways - whether they are absolute or qualified and whether they are class or prejudice based.
Exemptions are divided in two ways – those that are class based or prejudiced based and those that are absolute or qualified.
Class based/ prejudiced based
Class
Class-based exemptions apply where all information falling into that particular class is exempt from release.
Prejudiced
Prejudiced-based exemptions come into effect where release would have some specified prejudicial effect.