Request
Regarding MEPO 2/9894: please can TNA confirm:
1. The access conditions (i.e. open or closed) of the File between 1 January 1998 and 30 April 2009.
2. If the File was closed for some or all of this period, the date on which it was closed and the legal basis upon which it was closed.
3. The current legal basis for maintaining the closure of the File.
Outcome
Information provided
Response
1. The access conditions (i.e. open or closed) of the File between 1 January 1998 and 30 April 2009.
The file was closed in full between the 1st of January 1998 and the 30th of April 2009.
2. If the File was closed for some or all of this period, the date on which it was closed and the legal basis upon which it was closed.
Throughout this period of time, it was closed under the schedule LCI 71. Unfortunately, this LCI schedule does not provide any justification for closure, as this implemented before the creation of the FOI Act.
3. The current legal basis for maintaining the closure of the File.
The file is currently closed under the following sections of the FOI Act: Sections 31(1), 38(1)(a), 40(2) and 41
Section 31 has been applied because this piece contains information relating to an unsolved murder, release of which would prejudice the future prosecution and apprehension of an offender.
Section 31(1)(a) covers all aspects of the prevention and detection of crime. It could apply to information on general policies and methods adopted by law enforcement agencies. For example, the police’s procedures for collecting forensic evidence, Her Majesty’s Revenue and Customs procedures for investigating tax evasion. Section 31(1)(b) covers information on general procedures relating to the apprehension of offenders or the process for prosecuting offenders. It will also protect information relating to specific crimes i.e., where the public authority holding it does not itself have law enforcement functions, powers or duties. Finally, section 31(1)(c) covers information relating to the justice system as a whole. It can protect a wide range of judicial bodies, such as courts, coroner’s courts and tribunals from disclosures that would in any way interfere with their efficiency and effectiveness, or their ability to conduct proceedings fairly. This will include prejudice to the administrative arrangements for these bodies and the appointment of magistrates and judges, or arrangements for the care of witnesses. It would also cover any disclosures that would interfere with the execution of process and orders in civil cases.
Section 38(1)(a) has been applied because the file contains details of murder. The details of the events leading up to, during and following the murder are described in detail throughout the record. It has been decided that the release would be likely to harm the mental health of the victim’s remaining family.
Section 38 provides an exemption from disclosing information if it would endanger any individual (including the applicant, the supplier of the information or anyone else). The exemption does not necessarily deal with what are usually thought of as health and safety matters, such as establishing the cause of an accident.
Section 40 exempts the personal information of named individuals. This also includes the names and personal details of individuals who were considered suspects in the investigation.
Section 40 exempts personal information about a ‘third party’ (someone other than the requester), if revealing it would breach the terms of Data Protection Legislation. Data Protection Legislation prevents personal information from release if it would be unfair or at odds with the reason why it was collected, or where the subject had officially served notice that releasing it would cause them damage or distress. Personal information must be processed lawfully, fairly and in a transparent manner as set out by Art. 5 of the UK General Data Protection Regulation (UKGDPR)
Section 41 is applied because the piece contains information provided by members of the public in confidence to a public authority. This information was passed with the pretence of confidence and the release of it would be seen as an actionable breach of confidence.
Section 41 exempts, as a class, information obtained from any other person if its disclosure would constitute a breach of confidence actionable by that or any other person. This provision confers absolute exemption for the purposes of section 2. A duty of confidence may be created by contract, or may arise from the circumstances. The common law of confidence itself provides that in certain circumstances a duty of confidence does not arise having regard to the public interest.