Publication of misconduct investigation reports can give rise to difficult and important questions, particularly in cases where there has been no misconduct hearing because there has been a determination of “no case to answer”, or because the accused officer has resigned or retired.
To my knowledge there is no provision in the Police Reform Act 2002, Police (Conduct) Regulations 2012 or related regulations which compels police forces to publish misconduct investigation reports; nor is there an express power to do so, voluntarily. But the question of publication may well arise as a result of a request for information under the Freedom of Information Act 2000 (“FOIA”). The FOIA of course establishes the general right of access to information held by public authorities, including Police and Crime Commissioners and police forces, upon written request, subject to exemptions.
Requests for reports should be processed in accordance with the provisions of the FOIA. The timing of the request, and the subject matter of the investigation, are likely to be important considerations.
Do any exemptions apply? The onus is on public authorities holding information to justify any reliance on an exemption. Relevant exemptions may include s. 30 (Investigations and proceedings conducted by public authorities), s. 31 (Law enforcement), s. 36 (Prejudice to effective conduct of public affairs) and s. 40 (Personal information).
If a misconduct investigation is still under way, investigation documents are likely to be protected from FOIA requests by either s. 30 (Investigations, in particular criminal investigations, but also misconduct investigations involving confidential sources), or s. 31 (public authority law enforcement duties, including investigations under the conduct regulations). These exemptions are qualified: they require application of the public interest test, tailored to the circumstances of the case.
Where a journalist requests a misconduct investigation report after the investigation is complete, s. 30 and s. 31 may continue to apply. But s. 40 (Personal information) may be the more relevant and important exemption. The investigation report will contain personal data, belonging to the officer concerned, and usually the personal data of complainants and witnesses also. So the force should consider the request by reference to the Data Protection Act 1998 (“DPA”).
The question then becomes, would publication of the report contravene the data protection principles (e.g. “Personal data shall be processed fairly and lawfully”, with reference to the relevant conditions in schedule 2 to the DPA), or be likely to cause damage or distress. If so, the report may be exempt from publication.
If the report contains sensitive personal data, such as medical information or allegations about criminal conduct, then additional requirements have to be met before publication, and the justification for publication would have to be quite specific and pressing.
There is some case law regarding publication of reports, albeit not yet in the police misconduct investigation context. See for instance the recent case of Hussain v Sandwell Metropolitan Borough Council  EWHC 1641 (Admin) per Green J. This was a judicial review brought by a local councillor, who objected to publication of details of allegations of impropriety against him. The allegations had been considered by a solicitor as part of a preliminary investigation. The solicitor’s report, and a barrister’s legal opinion regarding the allegations and that report, were going to be published. The local councillor complained of breach of the DPA and breach of Article 8 (right to respect for private and family life), generally, and especially because the report was, in his view, inaccurate.
The local councillor’s claim was rejected. Documents, including the report, could be published. Green J was clear that any prejudice caused to the local councillor and his family “was far outweighed by the powerful public interest in openness, transparency and accountability”, paragraph 239. It was relevant that there was media interest, including criticism to the effect that the council was seeking to suppress information regarding the investigation. The local councillor was of course a public figure.
The judgment contains detailed and instructive analysis of the DPA in relation to publication of reports at paragraphs 216-241. Unfortunately (at least for the purposes of this blog) the question of publication of sensitive personal data within the meaning of the DPA was raised only faintly, and not considered in detail.
Whether there is a power or a duty to publish a report, and the availability of exemptions under the FOIA, always has to be considered carefully, based on the individual circumstances of the case. It may be that a police force, to whom a FOIA request has been made is caught between a rock and a hard place: the threat of complaint by the requester (e.g. a journalist) to the Information Commissioner’s Office, if the force fails to publish the report; or litigation by the accused officer (or others) if the force decides to meet the FOIA request and publish the report.
Separately, the IPCC has published its “policy on the naming of police officers and police staff subject to IPCC investigation, appeal assessment or criminal proceedings”, September 2015. The IPCC frequently makes information concerning its investigations and assessments public. IPCC decision-makers are required to follow the policy when deciding whether or not publicly to refer to a police officer or staff member by name. The IPCC approach to publication contains some useful analysis, albeit this is not intended to apply to decision makers within police forces, nor does it displace the tests in the FOIA and DPA. See for example the following passages in the IPCC policy:
5. The amount and nature of the information that the IPCC includes in these public statements varies and depends on a number of factors, including:
- the stage of the investigative process;
- the public interest and seriousness of the issues that are being or have been investigated;
- the outcome of any investigation;
- the imperative not to prejudice legal proceedings; and
- the IPCC’s responsibilities under the DPA and the [Human Rights Act 1998].
And section C:
Non-exhaustive list of factors to be taken into account
- whether naming the officer or staff member might reasonably be expected to enable other persons who might have been mistreated by the officer or staff member to come forward and report the mistreatment;
- the IPCC in the performance of its functions;
- the nature/seriousness of the conduct and whether it is to be dealt with at a misconduct hearing or misconduct meeting;
- the level of responsibility of the officer or member of police staff (the greater their prominence and leadership role, the more compelling the need for the name to be disclosed in order to maintain public confidence);
- the written representations of the police officer or staff member;
- whether there is evidence that makes it likely that disclosing the person’s name will result in a real risk of disproportionate distress or harm either to the person or to a 3rd party;
- whether there is the possibility of currently unknown facts that might alter the picture subsequently coming to light;
- whether there is considered to be a need to dispel speculation in the public domain as to the names of the officers and/or staff members involved in the matters being investigated;
- whether information accessible from any other open access sources enables identification of the officer or staff member. (It is important to consider whether information is realistically accessible to a member of the general public. Information which can be easily found using a simple internet search will be in the public domain. Information will not be in the public domain if it would require unrealistic persistence or specialised knowledge to find it. In general terms if information is already in the public domain it is less likely to cause additional harm);
- whether the officer or staff member has given evidence in respect of the matters investigated in another public forum, for example an inquest. (It might be that information disclosed in a public court hearing can be considered to have entered the public domain. However, its accessibility in practice may be limited unless that information has passed in to other more permanently available sources, for example a court judgment, inquest or public inquiry website or a newspaper),
- whether naming would involve processing sensitive personal data, for example health related information, and the effect this has on the fairness of publication (because sensitive personal data could be used in a discriminatory way and is likely to be of a private nature, the presumption is that the more sensitive the data the greater the care it should be handled with);
- parity of treatment between the officers or staff members involved in the matters being investigated; and
- whether there is some other public interest factor which would be served by disclosure of the person’s name.
The higher the rank of the officer under investigation, and the more serious and significant the allegations, the greater the public interest in publication.
Giving persons referred to in the report, especially the accused officer, the opportunity to make representations, will be important as a matter of natural justice. The IPCC policy refers to notice of at least two weeks; however, this will depend on all the circumstances.
The officer might, for instance, object to the quality and accuracy of information in an investigation report. This may indeed be a factor, for instance in cases where the report contains unfair and irrational criticism, and publication would cause irreparable harm. See for instance the case of R (interim Executive Board of X) v Ofsted  EWHC 2004 (Admin), which concerned an interim injunction, restraining publication of a report, in the education context. But it is important to note that requests may be made under the FOIA for “information”, whether the information is considered to be ‘accurate’ or not.
Generally, the IPCC will not publicly name officers the subject of an IPCC investigation while the investigation is underway; but will do so once gross misconduct charges have been laid. Such charges will usually be determined at a public misconduct hearing anyway.