Operation Hotton regarding Charing Cross case

Freedom of information request reference no: 01.FOI.22.023144

I note you seek access to the following information:

My request relates to the Charing Cross case/Operation Hotton, detailed here

https://www.policeconduct.gov.uk/news/misconduct-panel-rules-former-met-constables-would-have-been-dismissed-over-texts (LINK NO LONGER ACCESSIBLE)

I am requesting the written decision of the legally qualified chair who presided over the gross misconduct proceedings for PC A and PC B [referenced in the IOPC link above]. Please provide the full determination if possible and any case or decision summaries or equivalent.

[I'm not sure if I'm using the right terminology in terms of "written decision" but hopefully the nature of what I'm seeking is clear]

Decision

I have today decided to disclose some of the requested information. Some data has been withheld as it is exempt from disclosure and therefore this response serves as a Refusal Notice under Section 17 of the Freedom of Information Act 2000 (the Act) by virtue of the following exemptions:

Section 40(2)(3A)(a) - (Personal Information)
Section 31(1)(g)(2)(b) – (Law enforcement)

Reason for decision

A Freedom of Information Act request is not a private transaction. Both the request itself, and any information disclosed, are considered suitable for open publication. This is because, under Freedom of Information, any information disclosed is released into the wider public domain, effectively to the world and not just to one individual. Recently the General Data Protection Regulation (GDPR) was been introduced across the European Union (EU) and the European Economic Area (EEA).

In respect of the United Kingdom, GDPR was enshrined in UK law through the Data Protection Act 2018. The MPS, like all UK public authorities are obliged to comply with the Data Protection Act 2018 and this includes the protection of personal data. Information captured by your request, can fairly be considered "personal data" and sensitive, with a clear identifiable link.

In most cases, personal data is exempt from disclosure under the remit of the Freedom of Information Act. Where an individual is requesting third party personal data the MPS must ensure that any action taken adheres to the principles of GDPR/ the Data Protection Act 2018.

To clarify, the Freedom of Information Act only allows disclosure of personal data if that disclosure would be compliant with that law. The disclosure of the information you have requested must be carefully managed in order to ensure that there is no prejudice to any person in any possible way, however remote.
Section 31 (1)(g)(2)(b) - Law enforcement - As with any FOIA request that relates to an incident or investigation, it is of paramount importance that the response does not disrupt or have any negative impact the prevention or detection of crime or current as well as any possible future investigation. This is the case even in respect of unrelated incidents as full disclosure in this particular instance would damage public confidence in the ability of the MPS to handle information sensitively.

The MPS is concerned that the public disclosure of the requested information in full may be used by those with the necessary intent to undermine and frustrate any possible current or future investigation by disclosing information held in fine detail, which could in turn detrimentally affect MPS law enforcement capabilities or hinder any investigation.

Section 40(2)(3A)(a) - Personal Information - The Freedom of Information Act provides an exemption for Personal Data and this is known as the section 40 exemption. The information sought under your Freedom of Information request includes the following which we consider to be the Personal Data of the individuals that could be identified through the release of this information/ Personal information requested within this FOIA request includes:

• Disclosure of identifiable personal data

Where the request is seeking access to third party personal data the Section 40(2) exemption may be engaged. In order to apply the Section 40(2) exemption, the disclosure of the requested information must satisfy either the first, second or third conditions as defined by subsections 3(A), 3(B) and 4(A) of the Data Protection Act 2018.

The first condition ensures that the exemption would apply in circumstances where the disclosure of the information would breach any of the Data Protection Act 2018 principles. There are six Data Protection principles specified within Article 5(1) of the General Data Protection Regulation (GDPR).

In this instance we have decided that the disclosure of the Personal Data would be incompatible with the first Data Protection principle which requires that personal data shall be: ‘processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);

Under the Data Protection Act 2018, the disclosure of personal data is considered to be lawful if:

a. There is a legitimate interest in the disclosure of that personal data.
b. The disclosure of the personal data is necessary to meet that legitimate interest.
c. The disclosure would not cause unwarranted harm to the data subject.

Here, we need to balance the rights and freedoms of the individuals involved with any legitimate public interest in disclosure. Having considered the release of the identified personal data, the MPS has found, having considered the legitimate interest test, that, whilst there is not a public interest in disclosure of the personal information and the information requested is uniquely personal to individuals.

The data subject in the circumstances of your request would have a legitimate expectation that this type of personal data would not be used for non-policing purposes (i.e. FOIA requests – disclosures for which are put up publicly on the MPS website Publication Scheme).

Disclosure in the circumstances of your request would be unlawful and would therefore contravene the first data protection principle. I have therefore applied the exemption provided under Section 40(2) of the Freedom of Information Act to this information as the first condition, defined in subsection 3(A)(a) of Section 40 has been satisfied.

Disclosure

Please find attached the disclosure of a Notice of outcome under the Freedom of Information Act.