FOIA disclosures: ‘motive blindness’ and risks to mental health

Some FOIA ‘mantras’ frustrate requesters, such as judging matters as at the time of the request/refusal, regardless of subsequent events. Others tend to frustrate public authorities, such as ‘motive blindness’. A recent Tribunal discusses and illustrates both principles – in the context of the distress (including a danger to mental health) likely to arise from disclosure.

The background is that a certain pupil referral unit (PRU) in County Durham was the subject of complaints; 13 of its 60 staff had been suspended. An independent investigation team reported in November 2012. Later in that same month, the Council received a FOIA request for a copy of the investigators’ report. At that time, disciplinary proceedings were pending against each of the suspended members of staff. Those proceedings were to be conducted on a confidetial basis.

The Council refused the request, relying on section 31 (prejudice to conduct of function for purpose of ascertaining any improper conduct), section 40 (personal data) and 38 (health and safety). The ICO agreed, and so has the Tribunal, dismissing the requester’s appeal in Hepple v IC and Durham County Council (EA/2013/0168).

The Tribunal confirmed that, notwithstanding the appellant’s practical arguments to the contrary, it had to judge matters as they stood at the time of the Council’s refusal of the request (paras 4-7).

Section 31 was engaged: “We are satisfied, having read the Report in full, that disclosure in full would have given rise to a perception of unfairness and pre-judgement that would have prejudiced the disciplinary proceedings. Those deciding the complaint might have avoided being prejudiced but the perception of a disinterested third party would have been that the staff member’s right to a fair hearing had been undermined, particularly if publication had attracted media comment” (para 14). The public interest favoured maintaining the exemption.

Reliance on section 40(2) was upheld: the unwarranted interference to the data subjects prevailed over public interest arguments. The comparative balance may have shifted slightly since the date of the refusal, but that was not the relevant time for the purposes of the appeal.

Reliance on section 38 was also upheld. This exemption for health and safety (here, danger to mental health) seldom surfaces in FOIA caselaw. Here it was upheld, largely because the requester himself had sent certain text messages (for which he was later apologetic) to some of the individuals involved. The Tribunal “drew the clear impression that the texts had been transmitted with the purpose of menacing those whose addresses the Appellant had acquired” (para 37).

Those text messages were sent after the refusal of the request, but the Tribunal was satisfied that they evidenced a state of mind likely to have existed at the relevant time. As to ‘motive blindness’, the Tribunal said that “assessing an information request on this “motive blind” basis ought not to prevent us from considering the potential risk to safety posed by the requester him/herself”.

‘Motive blindness’ may be something of a mantra in FOIA cases, but – as with vexatious request cases – it is a principle which should be applied with appropriate nuance.

Robin Hopkins @hopkinsrobin


In Voyias v IC and LB Camden (EA/2011/0007), Camden Council has been ordered to disclose to a former member of the Advisory Service for Squatters lists of empty properties meeting certain descriptions. The decision has been controversial: see for example Housing Minister Grant Shapps’ condemnation of the judgment as a ‘squatter’s road map’. I set out below some of the key points from the decision.

Scope of the request

Two types of information were plainly within scope, namely lists of the Council’s own records of empty Council-managed properties, and properties owned by non-individuals which had been confirmed as empty by the Council.

There were two additional categories of information at issue. Here the Tribunal drew the following distinction, based on the wording of the request. On the one hand, the requester had asked about properties which were “listed” as being of a certain description: this information (found on the Council tax register) was in scope, and it did not matter whether or not the facts recorded in that register were accurate.

On the other hand, the requester had also asked for information about “empty” properties: this was not in scope. It was to be construed as meaning “actually empty” at the date of the request, and here the relevant records were not accurate.

Approach to the evidence

The Appellant argued that the IC’s reliance on material he had not seen was a breach of Article 6 ECHR. The Tribunal disregarded this argument, as an appeal before a Tribunal is a complete rehearing of the matter.

The next question concerning the evidence was this: how relevant were other decisions dealing with similar issues, but in the context of different local authorities?

The Tribunal was willing to take into account evidence from other Tribunal decisions dealing with general issues relating to squatting (LB Bexley v England and IC (EA/2006/0060 & 66)). The evidence was set out in that decision, and was thus available to the Appellant. Further, “it would be a waste of time and money to have to rehear such evidence in each similar case”. In contrast, the Tribunal declined to have regard to the evidence relied on in another, similar decision notice issued by the IC (concerning LB Tower Hamlets), as much of that evidence was case-specific and was not cited in detail in that publicly-available decision.

Camden’s own past disclosures of such information were not of assistance to the Tribunal, as circumstances change over time. Nor were other such disclosures by other local authorities of assistance.

Engagement of section 31(1)(a) FOIA

The IC found that s. 31(1)(a) FOIA (prevention of crime) was engaged. The Tribunal agreed, but based on different conclusions as to the evidence.

The Tribunal was satisfied that the relevant prejudice was made out as regards organised squatting. The Tribunal was satisfied that disclosure was likely to cause an increase in the number of properties squatted (even if the number of squatters remained the same) as the list of properties would add to the list of available premises known to a motivated and organized squatter. It was also satisfied that a significant proportion of entries into empty premises involve some criminal damage; it therefore concluded that organised squatting is linked to certain types of criminal activity.

The Tribunal was not satisfied, however, that disclosure of the list of properties would influence the behaviour of disorganised or opportunistic squatters, or those engaged in more systematic criminal behaviour involving drug use.

The public interest test

The IC found the public interest to favour the maintenance of the exemption. The Tribunal disagreed. Certain public interest factors were not relevant, and while there were strong factors on both sides, the balance favoured disclosure.

The Tribunal did not consider that any perceived social disadvantage of living next door to squatters, or the costs of the eviction of squatters were matters that the Tribunal was entitled to take into consideration, since squatting is not illegal. It did, however, take into account feelings of security, and the additional cost to the public purse (preventing crime, repairing criminal damage and so on) as inherently strong factors.

The Tribunal’s assessment of the weight to be given to the likely increase in crime is of interest. First, it found that disclosure would not lead to the majority of the crime associated with empty properties (crack-dens and so on). Further, in considering the other sorts of crime that would arise (criminal damage, for example), “the Tribunal takes into consideration the nature of the crimes that it considers would follow disclosure and finds that they are at the lower end of victim impact and that in some cases the presence of organized squatters itself will prevent the use of the premises for more socially disruptive crime (eg use as a crack house).”

Crucially, it found there to be a very strong public interest in bringing empty properties into reuse:

“The Tribunal is satisfied that publication of this list would bring a proportion of the void properties back into use earlier than would otherwise be the case and that consequently this is a strong public interest factor in favour of disclosure… The Tribunal is satisfied that there is already a lively and informed debate in this area, but, recognises that specific examples provide colour and are important in increasing public understanding and local involvement. It puts the specific empty properties into the limelight, may be an added tool to incentivize owners to reuse their properties and would enable the general public to walk up to a ‘void’, and see for themselves what is going on, whether it is being worked on, or has been left in limbo”.

It was this factor which outweighed the increased risk of low-level criminality, and which tipped the scales in favour of disclosure.

Robin Hopkins


Those interested in information law in the context of policing will wish to note the very recent Tribunal decision in Mathieson v IC and Devon and Cornwall Constabulary (EA/2010/0174).

Automated Number Plate Recognition (ANPR) cameras are strategic policing tools used by a number of forces.  Mr Mathieson asked Devon and Cornwall Constabulary to provide him with the locations of its ANPR cameras. It refused, relying on the prejudice-based qualified exemptions at s. 31(1)(a) (prevention or detection of crime) and s. 31(1)(b) (apprehension or prosecution of offenders). The Commissioner considered that the public interest arguments – though finely balanced – favoured the maintenance of these exemptions.

The Tribunal agreed that these exemptions were engaged, but disagreed on the public interest, and ordered disclosure.  It considered that the Commissioner had overlooked a number of relevant factors.

First, this is a privacy issue: ANPR cameras capture vast amounts of personal data; there is therefore substantial public interest in scrutiny of their use (further illustrated by parliamentary questions on the subject). Secondly, location data alone would not undermine policing – information on factors such as policing tactics, data and analytical capabilities were equally necessary.

Furthermore, the Constabulary had put forward weak arguments: the Tribunal was unimpressed by its attempt to rely on reports by other police forces on their use of ANPR cameras, and by its focus on issues such as the potential for vandalism – which is not sufficiently connected to the interests protected by ss. 31(1)(a) and (b).