Change in closure periods for MEPO 2/9894 and DPP 2/3099

FOI request reference: CAS-85395
Publication date: August 2022

Request

MEPO 2/9894: All documents relating to the public interest test(s) conducted on these files by the Metropolitan Police and the National Archives, including the considerations of the Advisory Council on National Records and Archives. This would include any emails, reports, memos and closure applications forms.

DPP 2/3099: I am requesting all documents relating to a) the initial decision to flag these files for Reclosure in 2015; b) material relating to the 2019 decision to close the files for 100 years, after the scale and extent of the sensitivities in them was assessed.

Outcome

Some information provided.

Response

(i) MEPO 2/9894

Attached please find items 1a & 1b, concerning the public interest tests conducted by TNA and the Metropolitan Police Service in 2010 and in 2020, which resulted in the closure period being changed for this file.

1a: This item contains information concerning a FOI request in 2010
Some information in the correspondence has been redacted under sections 40(1) and 40(2), or has been redacted as it is considered Out of Scope for this request because it does not relate to the public interest test for MEPO 2/9894. One document has been withheld entirely under sections 31(1)(b)(c), 38(1)(a), and 40(2) as it replicates the contents contained in MEPO 2/9894.

1b: This item contains information concerning a FOI request in 2020
Some information in the correspondence has been redacted under section 40(2), or has been redacted as it is considered Out of Scope for this request because it relates to other FOI requests. Two documents have been withheld entirely under sections 31(1)(b)(c), 38(1)(a), 40(2), and 41(1) as they replicate the contents contained in MEPO 2/9894. Two other documents have been withheld entirely under section 36(2)(b), as it has been considered that to release them would inhibit the free and frank provision of advice and the exchange of views for the purposes of deliberation.

ii) DPP 2/3099

Attached please find items 2a & 2b, concerning the Reclosure decision for DPP 2/3099 and the 2019 decision to close the file for 100 years.

2a: This item contains a Reclosure Form, which has been redacted under section 40(2) of the FOI Act as it replicates the contents of DPP 2/3099. Please note that we do not hold information relating to the initial flagging of this record for Reclosure. The National Archives’ Reclosure Policy outlines circumstances in which information in open records may be subsequently closed.

2b: This item contains correspondence, a closure application form, and an approved closure schedule
Some information within the correspondence has been redacted under sections 40(2), or has been redacted as it is considered Out of Scope for this request because this information predates the Reclosure decision. Some information within the closure application form and approved closure schedule has been redacted under section 36(2)(b) or has been redacted as it is considered Out of Scope for this request because it relates to other Reclosure cases.

Explanatory annexe

Exemptions applied
Section 31(1): Law enforcement

Section 31(1)(b)(c) of the FOI Act exempts information that, if it was released, would or would be likely to prejudice (b) the apprehension or prosecution of offenders, and (c) the administration of justice.

This exemption has been applied to some material within the attachments to external correspondence relating to MEPO 2/9894.

Section 31(1) is a qualified exemption and we are required to conduct a public interest test when applying any qualified exemption. This means that after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered. If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and the information must be released. In the FOIA there is a presumption that information should be released unless there are compelling reasons to withhold it.

A public interest test was considered in consultation with the Metropolitan Police Service at the time of the original requests for access to MEPO 2/9894, the outcome of which is still considered valid:

Arguments made in favour of disclosure
Disclosure of information contained within this record would provide evidence of how the police investigate serious crime, in this case a murder of an Afro-Caribbean man which may have been racially motivated.

As the police service is a public service it is in the common interest that information that demonstrates how the police perform across the range of their duties is made available. Particularly in cases of crime where there is public concern, such as a murder, that may have been racially motivated, there is an interest in disclosing information about the police conduct of the investigation. This concern becomes more acute if the crime remains unsolved. Such disclosure would reassure the public, inspiring their confidence and co-operation whilst engendering a sense of well-being, the caveat being that disclosure would not prejudice any future investigation or infringe the rights of individuals

Arguments made in favour of non – disclosure
This record contains information relating to an unsolved murder. If disclosed into the public domain, it would prejudice a future criminal investigation or prosecution.

Outcome of the public interest test
Exemption from disclosure of the information in this piece is sought because publication may prejudice a future investigation and prosecution.  This case meets the criteria that indicates that it would be investigated in the future, if new evidence was adduced or a confession forthcoming:

  • This murder remains unsolved
  • The crime is of a seriousness that means it would merit further investigation
  • There is no age limit on the prosecution of persons suspected of murder
    The suspect(s) may still be living
  • This case of homicide may have been racially motivated
  • The victim was of Afro-Caribbean origin; the murder occurred against the background heightened racial tension and rioting in London. The victim should, therefore, be considered vulnerable
  • Police identified a potential suspects at the material time. The identity of the suspects remains confidential
  • Key evidence could be used to identify alleged offenders or test the veracity of subsequent evidence/confessions
  • This was a crime of such seriousness that even 50 years after the event the police would still pursue an investigation should the opportunity arise
  • This crime is a controversial and high profile case, which has attracted much media attention over the years. There is a high communal expectation that the investigation would be pursued should an opportunity arise
  • The Metropolitan Police Service consider this case to be ‘open’
  • Article 2 of the Human Rights Act places a duty on the State to investigate suspicious deaths

The information contained in this record is directly relevant to the investigation of a murder that is unsolved.  As such the Metropolitan Police Service and Essex Police would desire that the details of the investigation remain confidential for the lifetime of any hypothetical suspect.  This closure period would be based on an assumption that the suspect(s) would have been at least 16 years old at the material time.  The rationale for this is that there remains a possibility that these murders could still be investigated and that a suspect could be identified, charged, brought to trial and convicted.

The premature release of the case file into the public domain, information from which would form the basis of the prosecution, might prejudice any future investigation and prosecution.  It is not possible to identify information from this record that might be released into the public domain at this point without the risking of compromising any future police actions; information that appears innocuous may have significance to an experienced investigator that is not immediately obvious to the lay reader; or may assume a new significance in the light of newly discovered evidence or developments in forensic or investigative techniques. The evolution of new scientific techniques means that cases hitherto considered unsolvable, are being examined afresh. Increasingly police services throughout the country are setting up ‘cold case’ teams to review their case files on unsolved murders; in some instances these unsolved murders date back to the 1940s.

Further guidance on the application of this exemption can be found at: https://ico.org.uk/media/for-organisations/documents/1207/law-enforcement-foi-section-31.pdf

Section 36: Prejudice to Effective Conduct of Public Affairs

Section 36 (2)(b) exempts information from release if, in the reasonable opinion of a qualified person, disclosure of the information would, or would be likely to; (i) inhibit the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation.

This exemption has been applied to some documents concerning the change in closure periods for MEPO 2/9894 and DPP 2/3099. These documents have been withheld entirely under section 36(2)(b):

From item 1b: a response form and a closure application form for the Advisory Council
From 2b: a closure application form and an approved closure schedule

Section 36 is a qualified exemption and we are required to conduct a public interest test when applying any qualified exemption. This means that after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered. If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and the information must be released. In the FOIA there is a presumption that information should be released unless there are compelling reasons to withhold it.

In consultation with the Qualified Person, who in this case is the Chief Executive and Keeper of The National Archives, it has been determined that, in his reasonable opinion, this exemption is engaged for some of the requested information as specified above. The public interest has now been concluded and the balance of the public interest has been found to fall in favour of non-disclosure.

Considerations in favour of the release of the information included the principle that there is a public interest in showing a true and open account of government decision-making, making for greater accountability and increasing public confidence in the integrity of the decisions made. Release of the documentation may provide the public with a greater understanding of the processing of Freedom of Information requests at The National Archives and how decisions on the release or retention of closed archival material are made.

However, it is considered that the release of the aforementioned material would prejudice the effective function of the process used for handling FOI requests. It is important that officials are able to exchange views freely and frankly and to fully discuss any issues that effect this process. To release some of the requested information may act as an inhibitor to necessary discussions which would not be in the public interest and would be likely to prejudice The National Archives’ ability to effectively respond to such requests in the future. As such, release of this information would be seen to inhibit the free and frank provision of advice and exchange of views.

After careful consideration, it has been decided that the balance of the public interest lies in favour of withholding the information on this occasion and that the factors for non-disclosure outweigh any benefits of release.

Further guidance on the application of this exemption can be found at:
https://ico.org.uk/media/for-organisations/documents/1175/section_36_prejudice_to_effective_conduct_of_public_affairs.pdf

Section 38(1)(a): Health and Safety
Section 38(1)(a) of the FOI Act exempts information that, if it was released, would endanger the physical or mental health of any individual.

This exemption has been applied to some material within the attachments to external correspondence relating to MEPO 2/9894.

Section 38 is a qualified exemption and we are required to conduct a public interest test when applying any qualified exemption. This means that after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered. If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and the information must be released. In the FOIA there is a presumption that information should be released unless there are compelling reasons to withhold it.

A public interest test was considered in consultation with the Metropolitan Police Service at the time of the original requests for access to MEPO 2/9894, the outcome of which is still considered valid:

Arguments made in favour of disclosure
Disclosure of information contained within this record would provide evidence of how the police investigate serious crime, in this case a murder of an Afro-Caribbean man which may have been racially motivated.

As the police service is a public service it is in the common interest that information that demonstrates how the police perform across the range of their duties is made available.  Particularly in cases of crime where there is public concern, such as a murder, that may have been racially motivated, there is an interest in disclosing information about the police conduct of the investigation. This concern becomes more acute if the crime remains unsolved. Such disclosure would reassure the public, inspiring their confidence and co-operation whilst engendering a sense of well-being, the caveat being that disclosure would not prejudice any future investigation or infringe the rights of individuals

Arguments made in favour of non–disclosure
Disclosure of information from is piece would cause substantial anguish to victim’s surviving immediate family.

Outcome of the public interest test
This record contains information which if disclosed into the public domain would cause the victim’s living immediate family.  This information is in the form of the coroner’s report and post-mortem & forensic reports which graphically describes the injuries sustained by the victim.  The victim had a daughter born in 1953.

The Metropolitan Police Service is custodian of information that will have a profoundly detrimental effect on the well-being of individuals if disclosed into the public domain.  As such it owes a duty of care to these individuals to handle such information in a way that protects them from harm.

Further guidance on the application of this exemption can be found at:
https://ico.org.uk/media/for-organisations/documents/1624339/health-and-safety-section-38-foia.pdf

Section 40: Personal Information

Under section 40(1), any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject. Section 40(2) 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 General Data Protection Regulation (GDPR).

In this case the exemption applies because the requested material contains information which would identify members of the public who submitted FOI requests to The National Archives. This information has been redacted under both sections 40(1) and 40(2).

The material also contains information which would identify junior members of staff. Publishing the names and contact details of junior members of staff is considered an unfair use of personal data. Junior members of staff would have no expectation that information which identifies them would be made available in the public domain; to do so would be unfair and contravene the first data protection principle of the Data Protection Act. As such, the names, and contact details of junior officials are withheld under section 40(2) of the FOI Act.

Further guidance about the publication of junior staff names can be found here:
https://ico.org.uk/media/fororganisations/documents/1187/section_40_requests_for_personal_data_about_employees.pdf

The section 40(2) exemption has also been applied to some documentation. This material has been withheld under section 40(2) as it constitutes the personal and the sensitive personal information of a number of identified individuals assumed to be still living. These individuals would have no expectation that this information would be made available by The National Archives in the public domain during their lifetimes; to do so would be unfair and would risk causing damage and distress, which would contravene the first data protection principle.

Further guidance on the application of this exemption can be found here:
https://ico.org.uk/media/for-organisations/documents/2619056/s40-personal-information-section-40-regulation-13.pdf

Section 41: Information provided in confidence

Section 41(1) of the Act exempts information if (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under the Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

This exemption has been applied to some material within a research report for MEPO 2/9894, which outlines which information was provided in confidence.

This exemption applies because the material constitutes information that was given in confidence, the release of which could be actionable in court. Although, for the purposes of the FOI Act, section 41 is an absolute exemption, I can confirm that we have taken into account the public interest defence test inherent within the common law duty of confidence in reaching this decision.

Further guidance on the application of this exemption can be found here:
https://cy.ico.org.uk/media/for-organisations/documents/1432163/information-provided-in-confidence-section-41.pdf