A couple of months ago I contacted the Information Commissioner and challenged the decision by Gloucestershire police not to disclose documents used in the criminal investigation into Carmarthenshire County Council. The investigation was over the pension and libel indemnity scandals relating to the chief executive.
Incidentally, contents of the various responses suggests that the main focus of police attention was the libel indemnity rather than the pension scam.
The Commissioner has issued a decision and agreed with the police...or the council. I'm not sure which, the lines are a little blurred.
Anyway, the original response from the police back in May, after the criminal investigation had been dropped, revealed that no one had been interviewed during the three month investigation and there had been no correspondence with the council. I could go no further with that, as they were telling me there was no information to be had.
I had also asked for documents relating to the investigation as well, (even if it was just a list) including the final police report. They said, in a nutshell, that to disclose these documents could compromise the detection of crime by revealing police tactics.
I asked the police to review their decision due to the clear public interest that an investigation by one public body into another should be open and transparent, and in this particular case there had already been unlawful findings.
The police then changed tack and, without elaboration, said it was because it might prejudice ongoing or future civil proceedings. It was not the police's role to disclose documents which might prejudice civil proceedings.
As Gloucestershire Police refused to specify, even in general terms, what civil litigation they were referring to I asked the Information Commissioner to review their refusal under that particular exemption.
To be clear, other exemptions were used which the police could fall back on if this one failed. However, I pursued the point.
The police argued that the press release regarding the outcome of the investigation should "satisfy the public interest in transparency and in knowing that a proper investigation had taken place"
The police also said that I had publicly stated my intention of pursuing a Judicial Review against the decision to indemnify Mr James. It was this which appears to be, partly anyway, the 'potential civil litigation' referred to.
In fact, this particular reference did not appear my blog until three weeks after the second police response (actually I said I was "exploring the possibilities").
The police have argued that it was 'not in the public interest to allow the open dissemination of information relating to civil proceedings, which was obtained as a result of a criminal investigation and which is not already in the public domain'
The police also provided (to the Commissioner only, as it was confidential) additional "specific public interest arguments which reveal information it considers to be exempt from disclosure"
The Commissioner, when weighing up the arguments, recognised that this particular case had all the essential ingredients for disclosure;
"In this case, the fact that the subject of the police investigation was the council's decision to fund a civil action against an individual who had been highly critical of it, and that there were questions as to whether this decision, add considerable weight to this [public] interest"
However, along with the predictable counterbalance that police investigations should be 'free and frank' without the threat of FOI, as well as the unknown arguments within the 'confidential' attachment, what the Commissioner saw as the "key" factor against disclosure was the "timing" of my request.
Whilst noting my 'intention' to bring a Judicial Review, as "stated on her blog", he has also considered the;
"ongoing nature of the complainants dispute with the council....which shows no sign of being resolved...she has actively fought to have the [libel] judgement overturned".
"In light of all this, the Commissioner considers it reasonable to believe that further civil litigation is a strong possibility, and that the constabulary's concerns about prejudicing that process by disclosing information relating to its criminal investigation are credible"
There is agreed recognition by all sides that the indemnity "could be subject to challenge by way of judicial review on conventional public law grounds" (WAO report) but it is quite clear that the council are covering all possible bases in their instructions to the police over the disclosure of documents.
Whatever the council's concerns are, all this begs the question whether information recovered during the criminal investigation, or created during the investigation itself, would further damage the council's case should further civil proceedings occur.
Much of the legal opinion and documentation relating to the libel indemnity is already in the public domain but clearly there is more and the council, and the police, are very reluctant for anyone to see it. So for now, at least, it will have to remain a mystery.
To be honest I won't be bringing a judicial review any time soon, this is something the Wales Audit Office should have done. I have more pressing issues to deal with.
I only have the Information Commissioner's decision letter in hard copy and as it runs to several pages I am unable to put it on the blog. The ICO will at some point in the next few weeks upload it onto their website here. The case reference is FS50556313.
Meanwhile, the thread of the original request and review to Gloucestershire police and their responses can be found here, and for reference, the Wales Audit Office report into the libel indemnity is here.
Incidentally, contents of the various responses suggests that the main focus of police attention was the libel indemnity rather than the pension scam.
The Commissioner has issued a decision and agreed with the police...or the council. I'm not sure which, the lines are a little blurred.
Anyway, the original response from the police back in May, after the criminal investigation had been dropped, revealed that no one had been interviewed during the three month investigation and there had been no correspondence with the council. I could go no further with that, as they were telling me there was no information to be had.
I had also asked for documents relating to the investigation as well, (even if it was just a list) including the final police report. They said, in a nutshell, that to disclose these documents could compromise the detection of crime by revealing police tactics.
I asked the police to review their decision due to the clear public interest that an investigation by one public body into another should be open and transparent, and in this particular case there had already been unlawful findings.
The police then changed tack and, without elaboration, said it was because it might prejudice ongoing or future civil proceedings. It was not the police's role to disclose documents which might prejudice civil proceedings.
As Gloucestershire Police refused to specify, even in general terms, what civil litigation they were referring to I asked the Information Commissioner to review their refusal under that particular exemption.
To be clear, other exemptions were used which the police could fall back on if this one failed. However, I pursued the point.
The police argued that the press release regarding the outcome of the investigation should "satisfy the public interest in transparency and in knowing that a proper investigation had taken place"
The police also said that I had publicly stated my intention of pursuing a Judicial Review against the decision to indemnify Mr James. It was this which appears to be, partly anyway, the 'potential civil litigation' referred to.
In fact, this particular reference did not appear my blog until three weeks after the second police response (actually I said I was "exploring the possibilities").
The police have argued that it was 'not in the public interest to allow the open dissemination of information relating to civil proceedings, which was obtained as a result of a criminal investigation and which is not already in the public domain'
The police also provided (to the Commissioner only, as it was confidential) additional "specific public interest arguments which reveal information it considers to be exempt from disclosure"
The Commissioner, when weighing up the arguments, recognised that this particular case had all the essential ingredients for disclosure;
"In this case, the fact that the subject of the police investigation was the council's decision to fund a civil action against an individual who had been highly critical of it, and that there were questions as to whether this decision, add considerable weight to this [public] interest"
However, along with the predictable counterbalance that police investigations should be 'free and frank' without the threat of FOI, as well as the unknown arguments within the 'confidential' attachment, what the Commissioner saw as the "key" factor against disclosure was the "timing" of my request.
Whilst noting my 'intention' to bring a Judicial Review, as "stated on her blog", he has also considered the;
"ongoing nature of the complainants dispute with the council....which shows no sign of being resolved...she has actively fought to have the [libel] judgement overturned".
"In light of all this, the Commissioner considers it reasonable to believe that further civil litigation is a strong possibility, and that the constabulary's concerns about prejudicing that process by disclosing information relating to its criminal investigation are credible"
There is agreed recognition by all sides that the indemnity "could be subject to challenge by way of judicial review on conventional public law grounds" (WAO report) but it is quite clear that the council are covering all possible bases in their instructions to the police over the disclosure of documents.
Whatever the council's concerns are, all this begs the question whether information recovered during the criminal investigation, or created during the investigation itself, would further damage the council's case should further civil proceedings occur.
Much of the legal opinion and documentation relating to the libel indemnity is already in the public domain but clearly there is more and the council, and the police, are very reluctant for anyone to see it. So for now, at least, it will have to remain a mystery.
To be honest I won't be bringing a judicial review any time soon, this is something the Wales Audit Office should have done. I have more pressing issues to deal with.
I only have the Information Commissioner's decision letter in hard copy and as it runs to several pages I am unable to put it on the blog. The ICO will at some point in the next few weeks upload it onto their website here. The case reference is FS50556313.
Meanwhile, the thread of the original request and review to Gloucestershire police and their responses can be found here, and for reference, the Wales Audit Office report into the libel indemnity is here.