Decision 032/2023: Child sexual exploitation reports
Authority: Chief Constable of the Police Service of Scotland
Case Ref: 202101491
Summary
The Applicant asked the Authority for copies of Child Sexual Exploitation reports they had produced or commissioned for towns and cities. The Authority disclosed some information, but it withheld the remainder under a number of exemptions. The Commissioner investigated and found that the Authority correctly withheld some information that would have substantially prejudiced the prevention or detection of crime, but the remainder was wrongly withheld. He required the Authority to disclose this information.
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 30(b)(i) and (ii) (Prejudice to effective conduct of public affairs); 35(1)(a) and (b) (Law enforcement); 47(1) and (2) (Application for decision by Commissioner)
The full text of each of the statutory provisions cited above is reproduced in Appendix 1 to this decision. The Appendix forms part of this decision.
Background
1. On 9 August 2020, the Applicant made a request for information to the Authority. It stated:
Please provide a copy of all problem profile assessments produced or commissioned by your police force related to child sexual exploitation in your force area from January 1st 2010 to date.
2. On 28 September 2020, clarification having been sought by the Authority, the Applicant clarified the request by adding:
I'm interested in more strategic level problem profiles for larger geographical areas such as towns and cities.
3. The Authority responded on 20 October 2020, stating that it did not hold any strategic-level problem profiles relating to child sexual exploitation (CSE) and applied section 17(1) of FOISA (Notice that information is not held). The Authority stated that any report of child exploitation was investigated robustly, on an individual case basis.
4. On 28 October 2020, the Applicant wrote to the Authority, requesting a review of its decision. He stated that his request was for problem profiles, which tended to be force-level strategic documents covering the status of child sexual offences in a force area. He stated that this was not statistical data to be exported from crime reporting systems, but tended to be held in PDF or word format. He added that many other police forces had been able to provide copies of these reports, to identically phrased requests, and attached examples from North Wales, Avon and Somerset and Gloucestershire police forces. He stated that he wished to be provided with the equivalent documentation for the Authority.
5. On 29 November 2021 (and following an appeal to the Commissioner and Decision 163/2021), the Authority issued a second review outcome to the Applicant, withdrawing its reliance on section 17(1) of FOISA and providing him with 11 redacted documents that fell within the scope of his request. The Authority withheld information in these documents under a range of different exemptions in FOISA, providing its reasons for making the redactions.
6. On 1 December 2021, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA. The Applicant stated that he was dissatisfied with the outcome of the Authority's review of 29 November 2021. He commented that the documents were heavily redacted, in a manner that was not consistent with FOISA, and he argued that there was a clear public interest in transparency around policing this crime area, in order to allow force policies and actions to be held properly accountable.
Investigation
7. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
8. On 19 January 2022, the Authority was notified in writing that the Applicant had made a valid application. The Authority was asked to send the Commissioner the information withheld from the Applicant. The Authority provided the information and the case was allocated to an investigating officer.
9. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application. The Authority was invited to comment on this application and to answer specific questions. These related to its reasons for redacting information under the exemptions claimed.
Commissioner’s analysis and findings
10. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.
Information disclosed during the investigation
11. During the investigation, the Authority agreed to disclose more information to the Applicant. On 25 October 2022, the Authority provided the Applicant with a new set of documents and disclosed some previously redacted information.
12. The Applicant was satisfied with most of the disclosed information, but he questioned some of the redactions in reports 2 and 19.
13. On 24 November 2022, the Authority provided the Applicant with some additional information from report 19, but he remained dissatisfied with the disclosure and he asked for the Commissioner to reach a decision on the withholding of certain information.
Withheld information
14. The information that will be considered in this decision is the information that has been redacted from page three of report 2, and from pages eight and nine in report 19, the withholding of which is disputed by the Applicant. The Authority is withholding this information under sections 30(b)(i) and (ii) and 35(1)(a) and (b) of FOISA.
Section 30(b)(i) and (ii) of FOISA – Prejudice to effective conduct of public affairs
15. The Authority applied these exemptions to information on page 3 of report 2, and pages 8 and 9 of report 19.
16. In order for the Authority to rely on these exemptions, it must show that disclosure of the information would (or would be likely to) inhibit substantially the free and frank provision of advice (section 30(b)(i)) or the free and frank exchange of views for the purposes of deliberation (section 30(b)(ii)). These exemptions are subject to the public interest test in section 2(1)(b) of FOISA.
17. In applying the exemptions, the chief consideration is not whether the information constitutes advice or opinion, but whether the disclosure of that information would, or would be likely to, inhibit substantially (as the case may be) the provision of advice or the exchange of views. The inhibition in question must be substantial and therefore of real and demonstrable significance.
18. As with other exemptions importing a similar test, the Commissioner expects authorities to demonstrate a real risk or likelihood that actual inhibition will occur at some time in the near (certainly the foreseeable) future, not simply that inhibition is a remote or hypothetical possibility. For inhibition to be likely, there would need to be at least a significant probability of it occurring. Each request must, of course, be considered individually.
Factors to consider
19. The Commissioner's guidance states that when assessing whether disclosure will cause substantial inhibition, an authority should consider the content of the information and the circumstances in which it was created. Factors to consider may include:
(i) The identity or status of the author and/or the recipient. There may be an inherent sensitivity in the fact that advice or views were passed from one person to another, depending on the relationship between those parties. Where advice or views are communicated and received as part of an individual's day-to-day professional functions, for example, then the risk of substantial inhibition may well be diminished.
(ii) The circumstances in which the advice or views were given. The context in which the communication took place might be relevant; for instance, views might be more sensitive during policy formulation or other discussions.
(iii) The sensitivity of the advice or views. The subject matter and content of the advice and opinions, as well as the way in which the advice or opinion is expressed, are likely to be relevant when determining whether the exemption applies. Timing may also be relevant: disclosing advice or opinions while a decision is being considered, and on which further views are being sought, might be more substantially inhibiting than disclosing the information once a decision has been taken. The degree to which a person will be, or is likely to be, inhibited in expressing themselves has to be of some real and demonstrable significance.
Authority’s submissions on section 30(b)(i) and (ii)
20. The Authority explained that CSE reports are intelligence tools used to inform the relevant departments of areas of concern, both within the divisional area as well as improvements which could be made within the Force.
21. The Authority submitted that the information it redacted on page three of report 2 related to recommendations for suggested changes to its crime management systems, such as SID (Scottish Intelligence Database), STORM (System for Tasking and Operational Resource Management) and IVPD (Interim Vulnerable Persons Database).
22. In relation to SID, the Authority submitted that page three of report 2 recommended changes that would help to close an intelligence gap. The Authority went on to note that the national guidance document “Scottish Intelligence Database – Headers and Indicators” was published 28 March 2022, and it acknowledged that the SID header recommendations for CSE had not been implemented in this national document. However, the Authority argued that this does not preclude the recommendations, set out in report 2, being used in the future.
23. The Authority submitted that the withheld recommendations were made by an analyst to signify an intelligence gap and, having carried out further research, it submitted that this “gap” in intelligence might still exist. Additionally, the Authority noted that the recommendations made for the STORM and IVPD databases had also not been implemented.
24. The Authority explained that the role of the analyst is to collate the requested information and report back their findings and make any recommendations. It argued that, if analysts feel inhibited, they may not make recommendations or share opinions and, if they cannot have a free exchange of ideas and views, this process would be severely hindered. If substantial inhibition occurred, the Authority argued that it would have an impact on officers’ ability to prevent and detect crime, which would bring the Authority into disrepute.
The Commissioner’s view on section 30(b)(i) and (ii) of FOISA
25. The Commissioner has considered the withheld information, along with the Authority’s submissions.
26. The Commissioner does not accept that the exemptions in section 30(b)(i) and (ii) of FOISA apply to the information redacted from page 3 of report 2, and pages 8 and 9 of report 19. In each report, the information that has been withheld relates to comments or recommendations made by analysts, who have identified issues in the existing intelligence and who have suggested changes to plug the gaps.
27. The Authority has argued that, if the information was to be disclosed, in future, analysts who were tasked with evaluating intelligence gathering would be substantially inhibited from sharing their views and advice and, if that occurred, it would have a detrimental impact on the Authority’s ability to prevent and detect crime.
28. The Commissioner does not accept these arguments. He is not satisfied that disclosure of the information would inhibit substantially the free and frank provision of advice or exchange of views in the future. The Commissioner notes that the name of the analyst who has made the recommendations has not been disclosed, and it is not part of the information that is being considered in this decision. The Authority has submitted that the recommendations were made by an analyst to identify an intelligence gap.
29. The Commissioner cannot conceive of a situation whereby an analyst, whose role involves the identification of weaknesses in intelligence gathering, would fail to identify any weaknesses or put forward recommendations for fear they might be disclosed in response to a FOI request, particularly since it is clear that their name will not be automatically disclosed, and so they will not be publicly linked with the recommendations. The information being withheld in this case is not a voluntary sharing of free and frank advice or views; it comprises recommendations based on the analysis of data and statistics. The analysts were essentially commissioned or tasked to undertake this role, and produce recommendations. If analysts refused to identify weaknesses or gaps in intelligence, they would arguably be failing to execute their duties, and the Authority would be unlikely to tolerate such a failing.
30. As noted in the Commissioner’s guidance, the subject matter and content of the advice and opinions, as well as the way in which the advice or opinion is expressed, are likely to be relevant when determining whether these exemptions apply. In this case, the recommendations are expressed in a professional manner and clearly relate to the work that was undertaken; they are not personal comments.
31. The Commissioner is not persuaded, therefore, from the submissions he has received and the content of the information itself, that disclosure of this information, withheld under section 30(b)(i) and (ii), would result in the harm claimed by the Authority.
32. In the absence of any submissions persuading him otherwise, the Commissioner does not accept that disclosure of this information would, or would be likely to, inhibit substantially the free and frank provision of advice or exchange of views. He does not believe such a conclusion can be reached on the basis of the arguments provided.
33. The Commissioner does not, therefore, accept that the exemptions in section 30(b)(i) and (ii) of FOISA should be upheld in respect of the information being withheld under this exemption.
34. Given that the Commissioner does not accept the application of these exemptions for the information withheld under section 30(b)(i) and (ii), he is not required to consider the public interest test in section 2(1)(b) for that information.
35. As the Authority is also relying on sections 35(1)(a) and (b) to withhold this information, the Commissioner will now go on to consider the application of these exemptions to the withheld information.
Section 35(1)(a) of FOISA
36. In order for the exemption in section 35(1)(a) to apply, the Commissioner has to be satisfied that disclosure of the information would, or would be likely to, prejudice substantially the prevention or detection of crime.
37. There is no definition in FOISA of what is deemed to be substantial prejudice, but the Commissioner considers an authority would have to identify harm of real and demonstrable significance. The harm would also have to be at least likely, and therefore more than simply a remote possibility.
38. As the Commissioner's guidance on section 35(1)(a) highlights, the term "prevention or detection of crime" is wide-ranging, encompassing any action taken to anticipate and prevent crime, or to establish the identity and secure prosecution of persons suspected of being responsible for crime. This could mean activities in relation to a specific (anticipated) crime or wider strategies for crime reduction and detection.
39. The Authority has applied the exemption contained in section 35(1)(a) of FOISA to all of the information it is withholding on page three of report 2, and pages eight and nine of report 19.
The Authority’s submissions on section 35(1)(a) of FOISA
40. The Authority noted that any disclosure under FOI legislation is a disclosure to the world at large and any information identifying the focus of policing activity could be used to the advantage of criminal organisations. It submitted that, if the information were disclosed into the public domain, it would impact on the investigation process and give an indication as to operations ongoing at any one time.
41. The Authority explained that the information contained within the reports was of potential relevance to ongoing investigations and it considered its disclosure would prejudice the detection of crime.
42. The Authority argued that disclosure of the redacted intelligence information would also provide an indication of the operational effectiveness of the Authority and that it had the potential to undermine policing. It submitted that disclosure would provide individuals who were intent on committing crime or causing disorder with information which would enable them to take measures to negate the likelihood of detection.
43. The Authority argued that being aware of system limitations and recording practices would inform persons or groups intent on committing offences or causing disorder. This, in turn, would allow those individuals or groups to make an accurate assessment of the capacity of the Authority to deal with incidents and crimes of a specific nature, compromising any tactical advantage the police might have over such persons or groups when dealing with any crime or disorder.
The Commissioner's view on section 35(1)(a) of FOISA
44. The Commissioner has fully considered the specific information being withheld under section 35(1)(a), along with the submissions he has received from the Authority and the Applicant.
45. In the Commissioner’s view, the information being withheld under this exemption falls under two broad types. There are recommendations which focus on generally improving intelligence gathering and recording, and there is information relating to specific incidents or crimes in particular areas.
46. The Commissioner does not accept that disclosure of the recommendations that focus on improving data retrieval in criminal databases can cause the harm claimed. These recommendations relate to how specific incidents are captured and recorded on a number of Authority databases. They focus on making changes which might make it easier for the Authority to more accurately record CSE crimes and incidents.
47. The Authority has noted that the recommendations have not yet been implemented, but the Commissioner does not see that as any reason to withhold the information. There may be many reasons why these recommendations have not been enacted; there could be human, technical or financial resource issues, there may be concerns that the recommendations do not go far enough and need reviewed, work might be being undertaken in other areas that will address the concerns raised, etc. The Commissioner notes that the Applicant made his request in August 2020, and in his view, the Authority has had sufficient time to either implement the recommendations or formalise its reasons for not doing so (for the time being or permanently).
48. The Authority has not provided sufficient argument to persuade the Commissioner that information that relates to broad issues of data capture and recording falls under the exemption contained in section 35(1)(a) of FOISA.
49. Given that the Commissioner does not accept the application of the exemption for this information withheld under section 35(1)(a), he is not required to consider the public interest test in section 2(1)(b) for that information. The Authority is also withholding this information under section 35(1)(b) of FOISA, so he will go on to consider its application of that exemption further on in this decision notice.
50. While the Commissioner has not upheld the application of section 35(1)(a) of FOISA to information relating to general data recording recommendations, he does accept that disclosure of information that relates to specific incidents in small geographical areas could cause the harm claimed. He considers it possible, and indeed likely, that disclosure of police intelligence on such specific incidents could let criminals know of police knowledge/action in particular areas, and they may move their offending to other areas. If this occurred, it could impact on the prevention and detection of crime.
51. The Commissioner notes that the crimes in question in both of these reports are those relating to or arising from the sexual exploitation of children. Children are one of society’s most vulnerable groups, and he cannot order disclosure of information which might genuinely inhibit the Authority’s ability to prevent or detect such crimes. The safety of children is paramount, and it is for these reasons that he is persuaded by the Authority’s arguments in relation to the information that relates to specific areas or incidents.
52. The Commissioner notes that disclosure of information under FOISA is, effectively, disclosure into the public domain, and not just to the individual requesting the information. The Commissioner therefore accepts the Authority’s arguments that information regarding CSE incidents in particular areas could be utilised by those willing to harm children, and it could lead them to evade detection for such criminal activity.
53. On balance, the Commissioner is satisfied that the exemption in section 35(1)(a) is engaged for this information.
54. In respect of the information for which the Commissioner has found section 35(1)(a) to be engaged, he will now go on to consider where the balance of public interest lies in the disclosure of the information, as required by section 2(1)(b) of FOISA.
Public interest test
55. As noted above, section 35(1)(a) is subject to the public interest test required by section 2(1)(b) of FOISA. As the Commissioner has found that the exemption in section 35(1)(a) was correctly applied to some of the withheld information, he is now required to consider whether, in all the circumstances of the case, the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.
The Applicant’s comments on the public interest
56. The Applicant argued that transparency in any shortcomings around the policing of Child Sexual Abuse and Child Sexual Exploitation was clearly in the public interest. He argued that this would allow for proper accountability of the Authority, and for greater understanding of how shortcomings had occurred and potentially how they could be addressed.
The Authority’s comments on the public interest
57. The Authority acknowledged that releasing the information would lead to a better informed public, improving their knowledge and understanding of how the Authority undertakes the apprehension of individuals. This would increase public debate and encourage accountability regarding the delivery of this policing tactic.
58. The Authority also acknowledged that disclosure would contribute to the public debate surrounding the efficient and effective use of resources by the Authority. However, it contended that there was no public interest in disclosing information which was likely to damage the efficient and effective conduct of the police service in relation to its law enforcement role, or which was likely to have an adverse impact upon public safety and, in this instance, child protection.
59. The Authority argued that disclosure would either compromise or significantly weaken police tactics and would also undermine any advantage the Authority might have, enabling targeted individuals or groups to become aware of such strategies and find ways to circumvent them.
60. Despite accountability being a factor for release, the Authority argued that the need to ensure that it could keep the public safe, maintain community confidence and minimise disorder were more compelling factors for non-disclosure. It argued that providing the information would compromise the effective delivery of operational law enforcement.
61. The Authority stressed that the subject matter of any request should not just be of interest to the public, but something which is of serious concern and benefit to the public. It argued that it could never be in the public interest to disclose information which could compromise public safety, particularly the safety of children.
The Commissioner's view on the public interest - section 35(1)(a)
62. The Commissioner has considered carefully the submissions he has received as to where the public interest might lie here.
63. He agrees that there is a public interest in transparency around any shortcomings affecting the Authority’s ability to prevent and detect crime, particularly when the victims of such crimes are children.
64. However, he also accepts there is a clear public interest in ensuring the Authority is able to continue to investigate crime and protect the public. For it to do so, it must be able to gather information on particular incidents and areas, without fear of the information being made public, before it has had the opportunity to gather enough information to take action. If information is disclosed prematurely (or in some cases, at all) it could warn offenders (or potential offenders) of police interest in specific locales, which might well drive the offender to a different area, where their crimes might go undetected for longer. If this occurred, this would put children at risk, and it would not be in the public interest.
65. Weighing up these competing arguments, the Commissioner accepts that the greater detriment here would be in impeding the Authority’s ability to perform its core functions in relation to the prevention and detection of crime and that, in all the circumstances of the case, the public interest in disclosing the information is outweighed by that in maintaining the exemption. On balance, therefore, the Commissioner is satisfied that the Authority correctly applied the exemption in section 35(1)(a) to information relating to specific incidents in specific areas. As he has found this information to be exempt under section 35(1)(a) of FOISA, he is not required to consider the application of any other exemption.
66. For the information that he has not found to be exempt under section 30(b) or 35(1)(a) of FOISA, the Commissioner will now consider whether that information was correctly withheld under section 35(1)(b) of FOISA.
Section 35(1)(b) of FOISA
67. As noted above, the Authority has relied on section 35(1)(b) of FOISA to withhold information relating to recommendations about CSE data gathering and recording.
68. Section 35(1)(b) exempts information if its disclosure would, or would be likely to, prejudice substantially the apprehension or prosecution of offenders. As the Commissioner's guidance states, there is likely to be a considerable overlap between information relating to "the apprehension or prosecution of offenders" and that relating to "the prevention or detection of crime".
69. He considers section 35(1)(b) relates to all aspects of the process of identifying, arresting or prosecuting those suspected of being responsible for criminal activity. Again, this term could refer to the apprehension or prosecution of specific offenders or to more general techniques (such as information received) and strategies designed for these purposes.
70. As noted above, there is no definition of "substantial prejudice" in FOISA, but the Commissioner considers authorities have to be able to establish harm of real and demonstrable significance. The harm would also have to be at least likely, and more than simply a remote possibility.
71. The exemption in section 35(1)(b) is also subject to the public interest test in section 2(1)(b) of FOISA.
The Authority’s submissions on section 35(1)(b) of FOISA
72. The Authority submitted that the redacted information would be invaluable to criminals, in terms of building up a picture of its limitations, and could identify areas where police investigations had not been carried out.
73. The Authority referred to information on page eight of report 19, noting that the information in the table comprised low level statistics broken down to local areas. It noted that some of these areas reported not having any concerns raised, which was itself of concern. The Authority argued that, if these details were released, it alerted offenders that they had gone undetected in particular areas, thus increasing the risk of offending in those areas. It further argued that, as the recommendations within these reports had not been used, disclosure would be irresponsible and would increase the risk of harm to children in those areas.
74. If this occurred, the Authority argued that it would prejudice its ability to identify the perpetrators as an awareness of police activity could allow them to take steps to evade detection. The Authority explained that the information contained within the reports was of potential relevance to ongoing investigations and it considered its disclosure would prejudice the apprehension and prosecution of offenders.
The Commissioner's view on section 35(1)(b) of FOISA
75. The Commissioner notes that the Authority’s submissions on section 35(1)(b) focus on the information he has already found to be exempt from disclosure under section 35(1)(a) of FOISA, that is, information relating to recorded incidents in specified geographical areas. The Commissioner has already agreed with the harm in disclosure of that information, and he has agreed that it should be withheld. However, the information that now has to be considered under section 35(1)(b) of FOISA, is information relating to the recommendations on data gathering and recording, not that relating to recorded statistics and incidents.
76. As the Authority has not put forward any convincing arguments as to why this information would cause the harm claimed and, as the Commissioner cannot see why disclosure of information that recommends amendments to database fields would, or would be likely to, prejudice substantially the apprehension or prosecution of offenders, he must conclude that the exemption in section 35(1)(b) of FOISA has been wrongly applied to this information.
77. Given that the exemption has not been found to apply, the Commissioner is not required to go on to consider the public interest test in section 2(1)(b) of FOISA.
Decision
The Commissioner finds that the Authority partially complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant.
The Commissioner finds that by correctly withholding some information under section 35(1)(a) of FOISA, the Authority complied with Part 1.
However, by wrongly withhold information under section 30(b)(i) and (ii) and 35(1)(a) and (b) of FOISA, the Authority failed to comply with Part 1.
The Commissioner therefore requires the Authority to provide the Applicant with the information that was wrongly withheld by 15 May 2023.
The Commissioner will provide the Authority with a description of the information which he requires to be disclosed.
Appeal
Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of intimation of this decision.
Enforcement
If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply. The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.
Margaret Keyse
Head of Enforcement
30 March 2023
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Appendix 1: Relevant statutory provisions
Freedom of Information (Scotland) Act 2002
1 General entitlement
(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.
(2) The person who makes such a request is in this Part and in Parts 2 and 7 referred to as the “applicant.”
…
(6) This section is subject to sections 2, 9, 12 and 14.
2 Effect of exemptions
(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that –
…
(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.
…
30 Prejudice to effective conduct of public affairs
Information is exempt information if its disclosure under this Act-
…
(b) would, or would be likely to, inhibit substantially-
(i) the free and frank provision of advice; or
(ii) the free and frank exchange of views for the purposes of deliberation; or
…
35 Law enforcement
(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice substantially-
(a) the prevention or detection of crime;
(b) the apprehension or prosecution of offenders;
…
47 Application for decision by Commissioner
(1) A person who is dissatisfied with -
(a) a notice under section 21(5) or (9); or
(b) the failure of a Scottish public authority to which a requirement for review was made to give such a notice.
may make application to the Commissioner for a decision whether, in any respect specified in that application, the request for information to which the requirement relates has been dealt with in accordance with Part 1 of this Act.
(2) An application under subsection (1) must -
(a) be in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape);
(b) state the name of the applicant and an address for correspondence; and
(c) specify –
(i) the request for information to which the requirement for review relates;
(ii) the matter which was specified under sub-paragraph (ii) of section 20(3)(c); and
(iii) the matter which gives rise to the dissatisfaction mentioned in subsection (1).
