Request
I can see that PCOM 9/1602 is currently closed following an FoIA decision taken earlier this year. I was wondering whether you could send me the complete text of the decision, including the points made for and against disclosure and the outcome of the public interest test.
Outcome
Information provided.
Response
This record was recently reviewed at The National Archives as the result of a separate Freedom of Information (FOI) request and a final decision notice was provided in May 2022 to the individual who submitted that request. It is our policy that a record will not be re-reviewed under FOI until a calendar year has elapsed since the previous decision notice, unless information can be supplied which might reasonably alter the previous decision notice. Your enquiry has been interpreted as a request for the final decision notice that was issued for this previous request for PCOM 9/1602, which has been copied below:
Thank you for your enquiry regarding a review of:
PCOM 9/1602 - MILLS, Herbert Leonard: at Nottingham on 22 November 1951 convicted of murder; sentenced to death; executed on 11 December 1951
Having considered the public interest test we have decided that this information should be withheld. I regret to say this means we cannot make this record open to you or to the public in general.
I previously explained that some of the information in the record is covered by section 38(1)(a) of the Freedom of Information Act 2000. This exempts information if its disclosure under this Act would, or would be likely to endanger the physical or mental health of any individual.
A public interest test was considered in consultation with the Ministry of Justice. The outcome of which is as follows:
Arguments made in favour of disclosure
There is a presumption running through the Freedom of Information Act that openness is, in itself, to be regarded as something which is in the public interest.
Public authorities should meet people’s requests unless there is a good reason within the Act not to and organisations must be aware that they do not have to withhold information even if an exemption applies.
Organisations should not fear setting precedents. All decisions should be made on their own merits and on a case-by-case basis at the time of the request.
Openness furthers the understanding of and participation in the public debate of issues of the day and allows a more informed debate of issues under consideration by the Government. It promotes accountability and transparency by public authorities for decisions taken by them and places an obligation on authorities and officials to provide reasoned explanations for decisions made thereby improving the quality of decisions and administration. Therefore, greater transparency is good for the public and democracy.
Arguments made in favour of non–disclosure
The Ministry of Justice’s duty to openness and transparency under the Freedom of Information Act must not be fulfilled in such a way as to undermine public confidence that the right to privacy of the surviving victims and victims’ families will be upheld and must be balanced against its parallel duties to protect them from further harm, shock, and distress.
This piece contains detailed accounts of a murder and the subsequent execution of the defendant. This information could cause mental distress to certain individuals. It is considered that the release of this information would likely cause mental anguish for the defendants remaining family members.
These individuals need the reassurance of knowing that FOI Act access rights will not be allowed to be exercised to their detriment and will not have the effect of placing in the public domain detailed accounts of traumatic events, forcing them to confront those events in inappropriate circumstances and causing them further distress in the knowledge that this information can be accessed freely by the general public.
Release of the information after this length of time can be considered to have the same effect as putting the information into the public domain for the first time.
Outcome of the public interest test
The piece contains material which is likely to cause mental distress to certain individuals.
This material, were it to be released, would be likely to have a detrimental effect on the mental health of the defendant’s remaining family assumed to still be alive. It is unclear how much this individual knows about the case and the defendant’s involvement within it. We cannot know how much of this information is known to them or by the public. Release of this for the first time would likely prejudice their mental health.
There is no public interest in endangering the mental health of these individuals by forcing them to confront the details of this case.
Some information is also covered by the exemption at section 40 (2) of the FOI Act. This exempts personal information about a ‘third party’ (someone other than the requester), if revealing it would break 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).
In this case the exemption applies because the record contains the personal and the sensitive personal information of a number of identified individuals assumed still to be living. These individuals have a reasonable expectation of privacy which would not include the release of this information into the public domain by The National Archives during their lifetime. To do so would be likely to cause damage and/or distress and would be a breach of the first data protection principle, which is concerned with the fair, lawful and transparent processing of information of this kind.
Explanatory Annex
Further guidance concerning the section 38 and section 40 exemptions can be found on the Information Commissioner’s Office (ICO) website. Please see the links below.
Section 38:
Section 40: