Transparency data for applications made for Chief Officers to provide notification of their post-service employment

Freedom of information request reference no: 01.FOI.23.029035

I note you seek access to the following information:

Please provide the number of applications made under the requirement for Chief Officers (or former Chief Officers) to provide notification of their post-service employment within 12 months of them leaving the police service for each financial year (as designated from 1 April to 31 March) from 2018 to 2022 inclusive.

Where an application has been made, please provide the following information:

- Name of applicant
- Title of former Chief Officer role
- Date left/retired from the police service
- New appointment/employment (including when taken up)
- PCC/CC recommendation on proposed appointment

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) and 40(3A) – Personal Information.

Reason for decision

In this case, section 40(2) and 40(3A) (Personal Data) of the Act applies to the information in question, as it relates to living, identifiable individuals. Furthermore, it is necessary to maintain the exemption in this case. The disclosure of this information under the Act is not necessary or proportionate in the circumstances, and therefore there is no legal gateway under the Act in which to release it.

The MPS recognises that there may be a legitimate public interest in disclosing the information requested. A legitimate interest is inherent in the disclosure of information upon request under the Freedom of Information Act given the associated benefit of enhancing the transparency and accountability of public authorities.

However, under the Act we must consider whether it is lawful to do so. Although these individuals worked for the Met, the information that you are requesting concerns their private life following their leaving of the Service, and not their public role when they were employed by the Met. In addition, as they are now no longer employed by the MPS they would not expect this information to be released in response to an FOI.

Section 40(2)(3A)(a) – Personal Information - Section 3 of the Data Protection Act (DPA) 2018 confirms that information which relates to an identified or identifiable living individual is Personal Data.

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 identifiable in your request:

• Names
• Titles they held whilst serving with the MPS
• Date they left the service
• Role they took up post employment
• Recommendation

Where the request is seeking access to third party personal data, such as in this case, 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 Act.

The first condition ensures that the exemption would apply in circumstances where the disclosure of the information would breach any of the data protection principles.

There are six Data Protection principles specified within Article 5(1) of the General Data Protection Regulation (GDPR).

In this instance it has been decided that the disclosure of the Personal Data inherent in this information would be incompatible with principle (a) of the GDPR 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’);

In accordance with the legislation, 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.

A legitimate interest is inherent in the disclosure of information upon request under the Freedom of Information Act given the associated benefit of enhancing the transparency and accountability of public authorities.

Disclosure may also improve the quality of public debate regarding this matter, and provide an insight on the types of roles policing may lead to.

The MPS does appreciate the public interest in this subject. However, this information relates to the private lives of former MPS staff. Even by disclosing names we would be confirming who left and took up employment within the 12 month period following. Disclosing this information would not be necessary or proportionate in the circumstances.

In addition, it is for the MPS to consider whether disclosure of the requested information would cause unwarranted harm to the data subjects. The type of employment taken up by former chief officers is no longer relating to their public facing role and therefore to continue to disclose information about staff even after leaving the organisation would be likely to result in unwarranted distress.

Furthermore, MPS privacy notices indicate that personal data is collected and used for policing purposes such as the prevention and detection of crime and will not be further processed in a manner that is incompatible with those purposes. This is in accordance with section 36 of the DPA 2018.

With this in mind, the data subjects in the circumstances of your request would have had a legitimate expectation that their personal data would not be used for non-policing purposes such as this. Disclosure in the circumstances of your request would therefore be unlawful and would contravene both the first data protection principle and principle (a) of the GDPR.

The MPS has 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. This therefore becomes an absolute exemption, and we are not required to provide you with a public interest test.

In addition to the data protection concerns outlined above, there are other legal factors to consider when assessing whether or not the requested information is suitable for public release.

One of these factors is Article 8 of the Human Rights Act 1998, which states:

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

Disclosure of this information could be argued to be an invasion into the private lives of former employees, in contravention of Article 8.

Disclosure

We can today provide you with the following figures regarding the number of applications made under the requirement for Chief Officers (or former Chief Officers) to provide notification of their post-service employment within 12 months of them leaving the police service:

• 1 Apr ‘18 – 31 Mar ‘19 = 0
• 1 Apr ‘19 – 31 Mar ‘20 = 4
• 1 Apr ‘20 – 31 Mar ‘21 = 0
• 1 Apr ‘21 – 31 Mar ‘22 = 1
• 1 Apr ‘22 – 31 Mar ‘23 = 4