FOI 454-2024 / Apr 2024 / Hunt protocol
FREEDOM OF INFORMATION REQUEST REFERENCE NO: 454-2024
I write in connection with your request for information which was received on 25th April 2024 and clarification received on 15th May 2024 as follows:
Could you please provide a list of all your cost codes?
Could you please provide a copy of all electronic and physical communications (emails/WhatsApp/Signal/Word documents/PowerPoints/draft documents etc.) relating to the protocol which are not subject to Section 32 – Court records.
On 30th April we contacted you as follows:
With regard to your question asking for 'a list of all cost codes', as it stands, the request is broad and would return an inordinate list of codes made up of letters and numbers which do not contain any identifiers in relation to the costs they refer to. In order to assist please can you provide further information in relation to the type of area in which you are interested? By way of clarification, in relation to the reference to cost code in our response to FOI-386-2024, this was mentioned purely to show that there is no way of identifying any financial information (by way of a cost code or by any other way) in relation to the legal costs associated with the Protocol. All work was undertaken as part of normal duties which is not quantifiable either financially or in terms of time spent. With that in mind, should this have any bearing on your revised question in relation to cost codes, and you wish to remove this question, then please advise.
On 15th May you provided the following response:
Thank you for your response and helping to explain. I am happy to retract this question.
Could you please address my second query from my previous email
"Could you please provide a copy of all electronic and physical communications (emails/WhatsApp/Signal/Word documents/PowerPoints/draft documents etc.) relating to the protocol which are not subject to Section 32 – Court records."
Please find the Warwickshire Police response set out below.
Response: Section 1 of the Freedom of Information Act 2000, places two duties on public authorities. Unless exemptions apply, the first duty at Section 1(1)(a) is to confirm or deny whether the information specified in a request is held. The second duty at Section 1(1)(b) is to disclose information that has been confirmed as being held.
When refusing to provide such information, because the information is exempt, Section 17 of the Freedom of Information Act 2000, requires Warwickshire Police to provide you, the applicant, with a notice which:
(a) States that fact
(b) Specifies the exemption(s) in question and
(c) States (if that would not otherwise be apparent) why the exemption(s) applies.
I can confirm that Warwickshire Police do hold the requested information; however, it is being withheld from disclosure by virtue of the following exemptions:
Section 40(2) Personal Information
Section 42(1) Legal Professional Privilege
Section 40 is an absolute class-based exemption, which does not require evidence of the harm disclosure would cause and does not require consideration of a public interest test. That being said, where Section 40(2) is engaged, in order to make the exemption absolute there needs to be evidence that a Data Protection Principle would be breached by disclosure.
This exemption is engaged where disclosure of information relates to personal data of a third party or could lead to the identification of an individual, either from that information alone or combined with any other information from within the Police Service or public domain. In this case, disclosure of requested documents and names is likely to identify an individual. Such a disclosure would breach individuals’ rights under the Data Protection Act 2018, in particular Article 5(1) of the GDPR which states that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject.
Section 42 relates to legal professional privilege (LPP) and protects the confidentiality of communications between a lawyer and client. In this instance the requested information contains details and copies of communications between Warwickshire Police and its legal advisor.
In Bellamy v the Information Commissioner and the Secretary of State for Trade and Industry (EA/2005/0023, 4 April 2006) the Information Tribunal described LPP as:
“a set of rules or principles which are designed to protect the confidentiality of legal or legally related communications and exchanges between the client and his, her or its lawyers, as well as exchanges which contain or refer to legal advice which might be imparted to the client, and even exchanges between the clients and [third] parties if such communications or exchanges come into being for the purposes of preparing for litigation”
In the Bellamy decision, the Tribunal acknowledged that there are two types of privilege within the concept of LPP:
- Litigation privilege; and
- Advice privilege
Litigation privilege applies to confidential communications made for the purpose of providing or obtaining legal advice about proposed or contemplated litigation.
Litigation privilege can apply to a wide variety of information, including advice, correspondence, notes, evidence, or reports. Advice privilege applies where no litigation is in progress or contemplated. It covers confidential communications between the client and lawyer, made for the dominant (main) purpose of seeking or giving legal advice.
In this case Warwickshire Police considers the requested information to be covered by litigation privilege and Section 42(1) of the Freedom of Information Act is engaged.
Section 42(1) states:
- Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.
Section 42 is a qualified class-based exemption which requires us to carry out a public interest test where we must weigh the public interest in maintaining the exemption against the public interest in disclosure.
The ICO states that:
Information can only be withheld if the public interest in maintaining the exemption outweighs the public interest in disclosure.
The public interest here means the public good, it is not:
- what is of interest to the public; or
- the private interests of the requester (unless those private interests reflect what is the general public good, eg holding public authorities to account).
Please see the public interest test set out below:
Public Interest Test
Section 42 - Factors favouring disclosure
There is a public interest in transparency and accountability around how Warwickshire Police has used public funds to aid their decision making. Transparency around decision making promotes public confidence in the force.
Section 42 - Factors favouring non-disclosure
Disclosure under the Freedom of Information Act is a release of information to ‘the world’ in general and not just to the applicant.
There is a public interest in protecting the confidentiality of free and frank communications between Warwickshire Police and its legal advisors, in the same way that there is when considering the confidentiality of communication between lawyers and clients. Should the force be unable to seek advice in a candid and open way, and legal advisors be unable to respond without concern that the correspondence will be subject to public scrutiny, there would be a significant reluctance to request and provide legal advice. This in turn could severely prejudice the quality of decision making and could impact on the effective conduct of policing processes.
Balance Test:
When balancing the public interest, arguments favouring disclosure need to be balanced with those against. In this case, the strongest reason for disclosure is that this would demonstrate openness, transparency and accountability, and serves to maintain public confidence in Warwickshire Police. The strongest reason for withholding the information is that it would undermine the legal principle that all communications between a client and their lawyer, whoever the client may be, is confidential, and that those seeking and giving advice must be able to do so free of concerns that this will be subject to public scrutiny. Without such a privilege the quality of decision making within the force will be severely compromised.
Taking into account all of these factors, I consider that the balance lies in favour of non-disclosure of the requested information.
This letter serves as a refusal notice under Section 17 of the Freedom of Information Act.
Warwickshire Police has followed the Information Commissioner’s guidance on LPP, which is available on their website at the following link:
Legal professional privilege (section 42) | ICO
Every effort has been made to ensure that the information provided is as accurate as possible.
Your attention is drawn to the below which details your right of complaint.
Should you have any further enquiries concerning this matter, please write or email the Freedom of Information Unit quoting the reference number above.
Yours sincerely
Freedom of Information Officer
Freedom of Information Unit
Warwickshire Police
PO Box 4
Leek Wootton
Warwickshire
CV35 7QB