Decision 065/2009 Mr Ian Cobain of The Guardian and the Chief Constable of Dumfries and Galloway Constabulary

Police officers convicted of drink driving offences

Reference No: 200800370
Decision Date: 15 June 2009

Summary

Mr Ian Cobain of The Guardian requested from the Chief Constable of Dumfries and Galloway Constabulary (Dumfries and Galloway Constabulary) information regarding Dumfries and Galloway Constabulary police officers convicted of drink driving offences.Dumfries and Galloway Constabulary released some information in response to Mr Cobain's request, but withheld the remaining information under section 38(1)(b) of the Freedom of Information (Scotland) Act 2002 (FOISA).Mr Cobain remained dissatisfied and applied to the Commissioner for a decision.

Following an investigation, the Commissioner found that Dumfries and Galloway Constabulary had failed to deal with Mr Cobain's request for information in accordance with Part 1 of FOISA by withholding information about what became of the two police officers who had been convicted of a drink driving offence under section 38(1)(b) of FOISA.He required Dumfries and Galloway Constabulary to provide this information to Mr Cobain.

Relevant statutory provisions and other sources

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1) and (6) (General entitlement), 2(1) and 2(e) (effect of exemptions) and 38(1)(b), (2)(a)(i) and (b) (Personal information)

Data Protection Act 1998 (the DPA) sections 1(1) (Basic interpretative provisions) (the definition of "personal data") and 4(4) (the data protection principles) Schedules 1 (The data protection principles) (the first data protection principle) and 2 (Conditions relevant for purposes of the first principle: processing of any personal data) (condition 6(1))

The full text of each of the statutory provisions cited above is reproduced in the Appendix to this decision. The Appendix forms part of this decision.

European Convention on Human Rights (ECHR) Article 8

Background

1.On 1 February 2008, Mr Cobain emailed Dumfries and Galloway Constabulary with the following questions:

a.How many police officers have been convicted of drink driving offences since 1 January 2002?

b.How many police officers have been convicted of failing to co-operate with a preliminary roadside test, failing to supply a sample of breath, blood or urine, or refusing to allow a sample to be analysed since 1 January 2002?

c.What became of these officers who were convicted of these offences, how many were dismissed, how many were permitted to remain with the force, were any of those who remained with the force disciplined, and how many were allowed to retire following their conviction?(This information request is generally summarised as "what became of the officers" in this decision.)

2.Dumfries and Galloway Constabulary responded on 11 February 2008.They released information in response to parts a. and b. of Mr Cobain's request, confirming that two police officers had been convicted under section 5 of the Road Traffic Act 1988 (driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit) and that no police officers had either been reported to the procurator fiscal or subsequently convicted under section 6 of the Road Traffic Act 1988 (failure to co-operate with a preliminary test without reasonable excuse).However, Dumfries and Galloway Constabulary withheld the information in response to part c. (i.e. what became of the convicted police officers) on the basis that the information was exempt from disclosure under section 38(1)(b) of FOISA.

3.On 11 February 2008, Mr Cobain emailed Dumfries and Galloway Constabulary requesting a review of its decision.Mr Cobain disputed the fact that the information regarding what happened to the police officers was personal data as defined by section 38(1)(b) of FOISA as he was not seeking any information about the identities of the convicted police officers.

4.On review, Dumfries and Galloway Constabulary modified their decision and, instead of refusing to tell him what had become of the officers in question, advised Mr Cobain that neither of the officers were now serving with the force.However, they declined to give any more detail about what had happened to these officers, again on the basis of the exemption in section 38(1)(b) of FOISA.

5.On 11 March 2008, Mr Cobain wrote to the Commissioner, stating that he was dissatisfied with the outcome of Dumfries and Galloway Constabulary's review and applying to him for a decision in terms of section 47(1) of FOISA.

6.The application was validated by establishing that Mr Cobain had made a request for information to a Scottish public authority and had applied to the Commissioner for a decision only after asking the authority to review its response to that request.

Investigation

7.On 18 March 2008, Dumfries and Galloway Constabulary were notified in writing that an application had been received from Mr Cobain and were asked to provide the Commissioner with the information withheld from Mr Cobain, i.e. what became of the officers who were convicted of the drink driving offences. Dumfries and Galloway Constabulary provided the information requested and the case was then allocated to an investigating officer.

8.The investigating officer subsequently contacted Dumfries and Galloway Constabulary, providing them with an opportunity to comment on the application (as required by section 49(3)(a) of FOISA) and asking them to respond to specific questions.Dumfries and Galloway Constabulary were asked to justify their reliance on section 38(1)(b) of FOISA and to confirm which data protection principle or principles they believed would be breached if the information were released.

9.The investigating officer emailed Mr Cobain on 9 April 2008 and invited him to provide submissions on his legitimate interest, in terms of condition 6 of schedule 2 of the DPA (see the discussion on condition 6 below), in the withheld information.Mr Cobain provided submissions on the same day and provided the investigating officer with a copy of the Guidance on Police Unsatisfactory Performance, Complaints and Misconduct Procedures, which was issued by the Association of Chief Police Officers of England, Wales and Northern Ireland (the ACPO guidance).Appendix N of the ACPO guidance states that senior police officers convicted of drink driving offences should either be dismissed or required to resign, to reflect the seriousness of the offence.Mr Cobain said that he had been informed by the Association of Chief Police Officers in Scotland (ACPOS) that they had not issued such guidance, but also took the view that police officers convicted of drink driving offences should either be dismissed or required to resign.

10.The investigating officer emailed a copy of the ACPO guidance to Dumfries and Galloway Constabulary on 23 April 2008 and asked them to comment on this guidance in their response.

11.On 25 April 2008, Dumfries and Galloway Constabulary responded, stating that they considered that the first data protection principle would be breached if the information were to be released.Dumfries and Galloway Constabulary also stated that there was no legitimate interest in terms of condition 6 of schedule 2 of the DPA that could justify the release of the withheld information and, since the convicted police officers were no longer serving, they had a right to privacy under Article 8 of the European Convention on Human Rights.

12.Dumfries and Galloway Constabulary also stated that they were aware of the ACPO guidance, but that this guidance applied only to England, Wales and Northern Ireland and was based on the Police (Conduct) Regulations 2004, which do not apply in Scotland.In Scotland, the Police (Conduct) (Scotland) Regulations 1996 (the 1996 Regulations) apply and ACPOS had not issued any guidance similar to the ACPO guidance.

13.A representative from ACPOS subsequently confirmed to the investigating officer that no formal guidance had been issued with regard to police officers convicted of drink driving offences and that it was for each police force in Scotland to decide how to deal with police officers who committed such offences.

14.On 11 June 2008, additional submissions were sought from Dumfries and Galloway Constabulary regarding this application, particularly regarding the question of identifiability of the police officers concerned.Dumfries and Galloway Constabulary responded on 16 June 2008, stating that it was common knowledge at least within the force that the officers concerned were the subject of misconduct hearings following their convictions and that if the information sought by Mr Cobain were to be released, it would allow a definitive correlation to be made between the convicted police officers and what happened to them as a result of the misconduct hearings held under the 1996 Regulations.

15.Dumfries and Galloway Constabulary also advised the Commissioner that they had previously disclosed information about the outcome of misconduct hearings held under the 1996 Regulations in relation to discreditable conduct involving alcohol or controlled drugs as a result of previous information requests made under FOISA.The figures disclosed covered the years 2001/2002 to 2005/2006 and therefore included the time period which covered the dates of Mr Cobain's request.

16.The investigating officer enquired whether this list could be revised with up to date content and released to Mr Cobain.Dumfries and Galloway Constabulary agreed to do this and released the updated list covering the years 2001/2002 to 2007/2008 to Mr Cobain on 13 August 2008.

17.Further correspondence took place with between the investigating officer and Mr Cobain between 19 August and 1 September 2008; the investigating officer had considered that this additional information disclosed by Dumfries and Galloway Constabulary might be sufficient for Mr Cobain's purposes.However, Mr Cobain advised that this information did not fulfil his information request and that he wished the Commissioner to come to a formal decision on the matter.

18.Mr Cobain also expressed dissatisfaction that the list provided did not correlate with the information previously released by Dumfries and Galloway Constabulary in response to his information request.However, Mr Cobain's request related to the number of police officers convicted of drink driving offences and what had happened to these particular officers.The information disclosed to Mr Cobain during the investigation, focussing as it did on the outcome of misconduct hearings in relation to discreditable conduct involving alcohol and controlled drugs, is wider in scope than the information requested by Mr Cobain.

Commissioner's analysis and findings

19.In coming to a decision on this matter, the Commissioner has considered all of the submissions presented to him by both Mr Cobain and Dumfries and Galloway Constabulary and he is satisfied that no matter of relevance has been overlooked.

20.As noted above, Dumfries and Galloway Constabulary have already told Mr Cobain the number of police officers convicted of drink driving offences since 1 January 2002.However, they have refused to tell him "what became of these officers" on the basis that this information is exempt under section 38(1)(b) of FOISA.

Section 38(1)(b) ? personal information

21.The exemption under section 38(1)(b) of FOISA, read in conjunction with section 38(2)(a)(i) or (as appropriate) section 38(2)(b), is an absolute exemption and therefore is not subject to the public interest test laid down by section 2(1)(b) of FOISA.In order for a public authority to rely on this exemption, it must show that the information which has been requested is personal data for the purposes of the DPA, and that disclosure of the information into the public domain would breach any of the data protection principles laid down in the DPA.In this case, Dumfries and Galloway Constabulary have argued that disclosure of the information would breach the first data protection principle, which states that the processing of personal data must be fair and lawful (the first data protection principle is set out in full in the Appendix and is considered in more detail below).

22.The Commissioner must therefore consider whether the information withheld from Mr Cobain is personal data and, if so, whether its disclosure would breach the first data protection principle.

Is the information under consideration personal data?

23.Personal data is defined in section 1(1) of the DPA as data which relate to a living individual who can be identified from those data, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller (the definition is set out in full in the Appendix).

24.Mr Cobain requested details of what became of the police officers who were convicted of the specified offences.

25.Dumfries and Galloway Constabulary stated in their letter of 24 April 2008 that the police officers were subject to misconduct proceedings which are not a matter of public record and that the outcome of these proceedings relates to the police officers in a personal capacity.

26.On the question of identifiability, Dumfries and Galloway Constabulary commented that cognisance must be taken of the fact that the number of officers convicted of drink driving is already in the public domain and the identity of these officers is common knowledge, at least within the force, which adds to their reluctance in disclosing information regarding what became of the officers.Dumfries and Galloway Constabulary have referred to the size of the force and believe that disclosure of the outcomes will undoubtedly allow those in possession of the original information (i.e. the number of convicted police officers) to correlate the two and identify the officer(s).The Commissioner notes that Dumfries and Galloway Constabulary did not submit that the disclosure of the information would allow individuals outwith the force to identify the individuals involved.

27.Having considered the arguments put forward by Dumfries and Galloway Constabulary, the Commissioner is satisfied that, if the information were to be disclosed, then the people within the force who are already aware that officer(s) X and/or Y had been convicted of a drink driving offence, would learn what had become of these officers.To that extent, he accepts that the disclosure of the information would identify the individuals.

28.The Commissioner is also satisfied that the information in question relates to the individual officers ? it is clear that the information has these individuals as its focus and that the information is biographical in nature.As a result, the Commissioner is satisfied that the information which has been withheld from Mr Cobain, i.e. what became of the two officers convicted of drink driving offences since 1 January 2002, amounts to personal data.

29.However, FOISA does not exempt information from release simply because it is the personal data of a third party. Personal data is exempt from release under section 38(1)(b) of FOISA (read in conjunction with section 38(2)(a)(i) or (b)) only if the disclosure of the information to a member of the public otherwise than under FOISA would contravene any of the data protection principles contained in the DPA.As noted above, Dumfries and Galloway Constabulary argued that, in this case, to disclose the personal data would breach the first protection principle of the DPA.

Would disclosure breach the first data protection principle?

30.The first data protection principle requires that the processing of personal data (the term "processing" includes the disclosure of personal data in response to a request made under FOISA) must be fair and lawful and, in particular, that personal data shall not be processed unless at least one of the conditions in Schedule 2 (to the DPA) is met and, in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

31.The conditions in Schedule 3 are very restrictive and it therefore makes sense, before going on to consider whether the conditions in Schedule 2 of the DPA would permit the information to be disclosed, to look at whether the information falls into the definition of sensitive personal data.

32.The withheld information relates to the outcome of a disciplinary hearing and this is not one of the categories of personal data which falls within the definition of sensitive personal data as determined by section 2 of the DPA.The Commissioner has considered whether, because the information relates to individuals who have been found guilty of committing a drink driving offence (which would be sensitive personal data under section 2 of the DPA), whether the outcome of the disciplinary hearing should itself be treated as sensitive personal data.However, he has come to the conclusion that it should not be treated in this way.While the disclosure of the information may lead to individuals within the force who already know the identity of the two officers who committed the criminal offence finding out what the outcome of the disciplinary hearing was, the disclosure of the information will not disclose to them the fact that the officers in question committed an offence.This is information which they know already.

33.In any event, the Commissioner notes that, at no point has Dumfries and Galloway Constabulary argued that the information is sensitive personal data.

34.The Commissioner must therefore now go on to consider whether there are any conditions within Schedule 2 of the DPA that might be considered to apply in this case.Having considered the conditions, he has come to the conclusion that only condition 6(1) of Schedule 2 of the DPA could apply. Condition 6(1) allows personal data to be processed (in this case, disclosed in response to Mr Cobain's information request) if disclosure of the data is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

35.There are a number of matters which must be considered in determining whether condition 6(1) would allow the information to be disclosed:

Does Mr Cobain have a legitimate interest in obtaining this personal data?

If so, is the disclosure necessary to achieve those legitimate aims? (In other words, is disclosure proportionate as a means and fairly balanced as to ends or could these legitimate aims be achieved by means which interfere less with the privacy of the data subjects?)

Even if disclosure is necessary for the legitimate purposes of Mr Cobain, would disclosure nevertheless cause unwarranted prejudice to the rights and freedoms or legitimate interests of the data subjects? This will involve a balancing exercise between the legitimate interests of Mr Cobain and those of the data subjects. Only if the legitimate interests of Mr Cobain outweigh those of the data subjects can the personal data be disclosed.

Does Mr Cobain have a legitimate interest?

36.Mr Cobain submits that what became of the officers who were convicted of drink driving offence should be in the public domain, particularly so, given that drink driving is an offence which the public generally regards as a serious matter, because of the potential for those who commit the offence to cause death or injury to others.

37.Mr Cobain also made reference to the ACPO guidance, which states that senior police officers convicted of such offences should normally be dismissed or required to resign, unless there are exceptional reasons for not doing so.However, he comments that, given that ACPOS has not issued such guidance, it is unclear how police officers who are convicted of such offences in Scotland are dealt with and whether police officers in Scotland are treated similarly to those in England, Wales and Northern Ireland.

38.Due to the serious nature of such incidents, and the fact that a police officer's duty is to maintain public order and prevent and detect crimes,, the Commissioner considers that there is a clear legitimate interest in knowing what became of the police officers convicted of the offences.The disclosure will shed light on how Dumfries and Galloway Constabulary dealt with such a serious matter.The Commissioner considers this to be a matter of public confidence.

Is the disclosure necessary to achieve these legitimate aims?

39.The Commissioner must now go on to consider whether the disclosure of the withheld information is necessary to achieve Mr Cobain's legitimate aims.

40.The Commissioner considers that disclosure is necessary.There is no other way in which Mr Cobain could obtain this information and, therefore, no means by which Mr Cobain could obtain this information while interfering less with the privacy of the individuals concerned.Given that the disclosure of the information would not lead to anyone who is not already aware of the identities of the officers (and of the fact that they were convicted of drink driving offences) finding out the outcome of the disciplinary hearings, he also considers that the disclosure is proportionate.

41.As the Commissioner is satisfied that disclosure of the withheld information would be necessary to achieve Mr Cobain's legitimate interests, he is required to go on to consider if it would nevertheless cause unwarranted prejudice to the rights and freedoms or legitimate interests of the candidates in question.

Would disclosure of information cause unwarranted prejudice to the rights and freedoms or legitimate interests of the convicted police officers?

42.The Commissioner must now consider whether disclosure would nevertheless cause unwarranted prejudice to the rights, freedoms and legitimate interests of the police officers in relation to the information withheld.This will involve a balancing exercise between the legitimate interests of Mr Cobain and those of the police officers.Only if the legitimate interests of Mr Cobain outweigh those of the police officers can information about what became of the police officers as a result of their convictions be disclosed without breaching the first data protection principle.

43.In guidance recently published by the Commissioner[1], the Commissioner notes a number of factors which should be taken into account in carrying out this balancing exercise.These include:

a.whether the information relates to the individual's public life (i.e. their work as a public official or employee) or their private life (i.e. their home, family, social life or finances).

b.the potential harm or distress that may be caused by the disclosure.

c.whether the individual has objected to the disclosure

d.the reasonable expectations of the individuals as to whether the information would be disclosed.

44.Dumfries and Galloway Constabulary argued that the release of the information in question would be unfair to the police officers concerned.They maintained that the sanction imposed is a private matter for the force and the police officers concerned and the officers had no expectation that such information would be released.

45.Dumfries and Galloway Constabulary have not presented the Commissioner with any evidence which would indicate that disclosure of the information would put any of the police officers (or any other individuals) at risk.

46.The Commissioner accepts the police officers may have had a certain expectation that the outcome of the disciplinary hearing would not be disclosed.Indeed, he accepts that it is uncommon for the outcome of disciplinary hearings to be disclosed.However, given the special role which police officers play in society, and the seriousness of the offence, the Commissioner considers that in this case the rights and freedoms or legitimate interests of the officers involved are outweighed by the legitimate interests of Mr Cobain.

47.Again, the Commissioner would note that the disclosure of the information itself would not lead to the identification of the individual police officers, but would confirm in the mind of certain people working for the force what happened to officers who are already known to have been convicted of drink driving.

48.The Commissioner therefore finds that condition 6 permits the information to be disclosed.However, he must, in addition, consider whether the disclosure is otherwise unfair or unlawful.

49.The Commissioner is satisfied that the disclosure of the information would not be unfair, for the same reasons as outlined above in relation to his discussion on condition 6(1).

50.Dumfries and Galloway Constabulary argued that the disclosure of the requested information would be unlawful as it would breach Article 8 of the European Convention on Human Rights (the ECHR) on the basis that the officers in question were no longer working with the force.No other arguments were made in relation to Article 8 or further explanation given as to how Article 8 would be breached.

51.Article 8 of the ECHR states that everyone has the right to respect for his private and family life and that there should be no interference by a public authority with this right except in limited circumstances (the article is set out in full in the Appendix).

52.The Commissioner considers that it is not necessary to address the Article 8 arguments separately in this case, given that he has interpreted the exemption in section 38(1)(b) in the light of Article 8.Indeed, the exemption in section 38(1)(b) goes to the very heart of Article 8. However, if the Commissioner is wrong as to whether Article 8 requires to be considered separately, he would find that there would be no such breach.For the reasons set out in his consideration of section 38(1)(b), he would find that any interference with this right in disclosing this information is in accordance with the law and is necessary in a democratic society in the interest for the prevention of disorder or crime or for the protection of the rights and freedoms of others.

53.Dumfries and Galloway Constabulary did not advance any other arguments as to why the disclosure of the information would be unlawful (other than in terms of a breach of the data protection principles ? section 4(4) of the DPA imposes a duty on data controllers to comply with the data protection principles).As a result, the Commissioner is satisfied that the disclosure of the data under FOISA would not breach the first data protection principle.

54.Having found that disclosure would not breach the first data protection principle, the Commissioner does not accept that the information requested is exempt from disclosure under section 38(1)(b) of FOISA.

55.The Commissioner requires Dumfries and Galloway Constabulary to provide Mr Cobain with the information concerning what became of the police officers convicted of the offences.

DECISION

The Commissioner finds that the Chief Constable of Dumfries and Galloway Constabulary failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by Mr Cobain, by wrongly withholding the information concerning what became of the convicted police officers under section 38(1)(b) of FOISA in line with part c of Mr Cobain's information request of February 2008.As such, the Commissioner finds that there has been a breach of section 1(1) of FOISA.

The Commissioner therefore requires the Chief Constable of Dumfries and Galloway Constabulary to provide Mr Cobain with the information by 30 July 2009.

Appeal

Should either Mr Ian Cobain or Dumfries and Galloway Constabulary wish to appeal against this decision, there is an 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 notice.

Kevin Dunion
Scottish Information Commissioner
15 June 2009

Appendix

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002

1General entitlement

(1)A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

(?)

(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 ?

(a) the provision does not confer absolute exemption; and

(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.

(2) For the purposes of paragraph (a) of subsection 1, the following provisions of Part 2 (and no others) are to be regarded as conferring absolute exemption ?

(?)

(e)in subsection (1) of section 38 ?

(?)

(ii) paragraph (b) where the first condition referred to in that paragraph is satisfied by virtue of subsection (2)(a)(i) or (b) of that section.

38 Personal information

(1) Information is exempt information if it constitutes-

(?)

(b)personal data and either the condition mentioned in subsection (2) (the "first condition") or that mentioned in subsection (3) (the "second condition") is satisfied;

(2) The first condition is-

(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of "data" in section 1(1) of the Data Protection Act 1998 (c.29), that the disclosure of the information to a member of the public otherwise than under this Act would contravene-

(i) any of the data protection principles; or

(ii) (?)

(b) in any other case, that such disclosure would contravene any of the data protection principles if the exemptions in section 33A(1) of that Act (which relate to manual data held) were disregarded.

DATA PROTECTION ACT 1998

1 Basic interpretative provisions

(1) In this Act, unless the context otherwise requires ?

(?)

"personal data" means data which relate to a living individual who can be identified-

(a) from those data, or

(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual

4 The data protection principles

?

(4) Subject to section 27(1), it shall be the duty of a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller.

(?)

SCHEDULE 1 THE DATA PROTECTION PRINCIPLES

PART I THE PRINCIPLES

1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

SCHEDULE 2

CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY PERSONAL DATA

6.(1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

European Convention on Human Rights and Fundamental Freedoms

Article 8 ? Right to respect for private and family life

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

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