Decision Notice 289/2024: Report into a death in custody
Authority: Police Investigations and Review Commissioner
Case Ref: 202400913
Summary
The Applicant asked the Authority for a report into the death of a named individual in police custody. The
Authority withheld the information requested under various exemptions in FOISA. The Commissioner investigated and
found that the Authority was entitled to withhold the information requested.
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b)
(Effect of exemptions); 34(2)(b)(ii) (Investigations by Scottish Public Authorities); 47(1) and (2) (Application
for decision by Commissioner)
Background
1. On 10 May 2024, the Applicant made a request for information to the Authority. She asked for a copy of
the report which was completed by the Authority after the death of Warren Fenty in 2014 at Kittybrewster police
station.
2. The Authority responded on 17 May 2024. The Authority withheld the information requested under the
exemptions in sections 26, 30(c), 34, 35(1) and 38(1)(b) of FOISA.
3. On 20 May 2024, the Applicant wrote to the Authority requesting a review of its decision. The Applicant
stated that she was dissatisfied with the decision because she did not agree these exemptions had been properly
applied.
4. The Authority notified the Applicant of the outcome of its review on 17 June 2024. The Authority withdrew
its reliance on the exemption in section 26 of FOISA but continued to withhold the requested information under the
exemptions in sections 30(c), 34(2)(b), 35(1)(g) and 38(1)(b).
5. On 3 July 2024, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1)
of FOISA. The Applicant stated she was dissatisfied with the outcome of the Authority’s review because she did
not agree the claimed exemptions applied, and in any event the public interest favoured disclosure.
Investigation
6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the
power to carry out an investigation.
7. On 24 July 2024, 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.
8. 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 relating to the application of the exemptions claimed.
Commissioner’s analysis and findings
9. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.
Information falling within the scope of the request
10. During the investigation, it became apparent that two reports (an interim and a final report) were
completed by the Authority after the death of Mr Fenty. The Commissioner sought the Authority’s comments on
whether both reports fell within the scope of the request.
11. The Authority explained that it had not identified the interim report as part of its initial response or
its review outcome, but that it identified it following the Commissioner’s request for comments and that it now
considered both reports fell within the scope of the request. The Authority confirmed that it wished to withhold
both reports under the same exemptions in FOISA.
12. Having reviewed the withheld information, the Commissioner agrees that both reports fall within the scope
of the request. His decision will consider both reports in what follows.
13. By failing to identify the interim report as falling within the scope of the request until during the
investigation, the Commissioner must find that the Authority failed to comply with the requirements of section
1(1) of FOISA.
Section 34(2)(b)(ii) – Investigations by Scottish public authorities and proceedings arising out of such investigations
14. During the investigation, the Authority confirmed that it considered both reports exempt from disclosure
under the exemption in section 34(2)(b)(ii) of FOISA. This exemption provides that information is exempt from
disclosure if it is held at any time by a Scottish public authority for the purposes of an investigation being
carried out for the purpose of making a report to the Procurator Fiscal as respects the cause of death of a
person.
15. The exemptions in sections 34 are described as "class-based" exemptions. This means that if information
falls within the description set out in the exemption, the Commissioner is obliged to accept it as exempt. There
is no harm test: the Commissioner is not required or permitted to consider whether disclosure would, or would be
likely to, prejudice substantially an interest or activity, or otherwise to consider the effect of disclosure in
determining whether the exemption applies. Such exemptions are, however, subject to the public interest test
contained in section 2(1)(b) of FOISA.
16. In this case, having reviewed the information withheld and the submissions presented by both the Applicant
and the Authority, the Commissioner is satisfied that the withheld information has been held by Authority for the
purposes of an investigation covered by section 34(2)(b)(ii) of FOISA.
17. The Commissioner therefore accepts that the exemption in section 34(2)(b)(ii) of FOISA applies to the
withheld information. As noted above, the exemption in section 34(2)(b)(ii) of FOISA is subject to the public
interest test in section 2(1)(b) of FOISA. Consequently, unless the Commissioner is satisfied that, in all the
circumstances of the case, the public interest in maintaining the exemption outweighs that in disclosure of the
information, he must order the information to be disclosed.
The public interest test – section 34(2)(b)(ii)
18. As noted above the exemption in section 34(2)(b)(ii) is a qualified exemption and therefore subject to the
public interest test required by section 2(1)(b) of FOISA. As the Commissioner has found that the exemption in
section 34(2)(b)(ii) was correctly applied to 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 Authority’s submissions about the public interest
19. The Authority recognised the public interest in disclosure of information that would show how it
investigates and reports on deaths in police custody and that it would contribute to a fuller understanding of how
it investigates such deaths in general and with regard to this specific death. The Authority also accepted that
disclosure would enhance accountability regarding its own actions and those of Police Scotland.
20. However, the Authority considered that those from whom it seeks to ingather necessary and relevant
information as part of investigations regarding deaths in police custody would not provide information (or some
information) if it were known that the Authority would subsequently release that information, or parts thereof,
into the public domain. The Authority argued that such disclosure would result in the reduction of willingness of
the public and witnesses to engage with the Authority, which would result in it not receiving critical evidence
and therefore undermine its ability to perform its statutory functions.
21. The Authority submitted that this would be a serious detriment and, while it recognised the Applicant
might have an interest in the information requested, this must be balanced with the wider public interest
consideration of protecting the statutory role of the Authority and with preserving the confidence of the public
in how their information will be used.
22. The Authority submitted that it was in the public interest to protect the confidentiality of the
information ingathered, both to protect the privacy of those involved in the investigation and to ensure
cooperation from all those from whom the Authority relies on to provide statements and evidence.
23. The Authority noted that it is the role of the Crown Office and Procurator Fiscal Service to investigate
deaths, not the public. The Authority argued that it cannot be said to be in the public interest for it to
publish investigative materials (including reports), irrespective of the passage of time, to allow the public to
make their own determination or commentary.
24. The Authority also considered that the public interest in this case had been satisfied by the public
hearing of evidence in the FAI and the publication of the FAI determination. The Authority noted that the
evidence heard had the benefit of being heard under oath and subject to the relevant legal tests, including
examination, cross examination and legal testing.
25. The Authority submitted that these are established principles of justice and that to release untested
source material or a summary thereof contained in the information requested may result in a form of summary
justice, whereby wrongdoing or suggested wrongdoing would arise from allowing the public to draw conclusions from
untested material.
The Applicant's submissions about the public interest
26. The Applicant noted that both the Authority’s investigation and the FAI concluded with no further
proceedings being sought, so she did not agree that disclosure of the information requested would result in any
jeopardy to future proceedings.
27. Considering the information requested fed into a public examination of a death (concluded with the
publication of the FAI determination) that is of public interest, the Applicant suggested it would be a natural
extension of the legal process to consider the information requested to also be of public interest and that it
should therefore be made available to the public to scrutinise.
28. The Applicant argued that deaths in custody are becoming an increasingly important subject area for public
discussion, as prison populations rise to dangerous levels against a backdrop of record level drug related deaths,
rising mental health issues and inequality. Being able to understand the how and why of these deaths in custody
(wherever that may be) is important to inform the ongoing public health debate and maintain public trust in public
authorities responsible for the wellbeing of detained individuals.
29. The Applicant highlighted research published in February 2024 by the University of Glasgow which
suggested that four people die every week in Scotland while in custody (not only police custody) or under the
control of the state. The same report found that, over an eight-year period (2015-2022), 25 people died in police
custody in Scotland.
30. The Applicant noted that the FAI in this case took ten years to complete, making it one of the longest
running FAIs in Scottish legal history, and that, given the passage of time, several police officers had indicated
that they could not recall the events that the Procurator Fiscal asked them about. The Applicant argued that
disclosure of the information requested, which was prepared closer to the time of the incident, could place more
accurate evidence into the public domain than the evidence given a decade later.
The Commissioner's view on the public interest
31. The Commissioner recognises the public interest in disclosure of information which would show how the
Authority conducts and reports on investigations relating to deaths in police custody. Disclosure would
contribute to a fuller understanding of how the Authority investigates such matters and how it investigated the
death in question.
32. However, in considering disclosure under FOISA, the Commissioner must address the question of whether the
information withheld by the Authority should be made available to the public at large, not just to those who may
have a specific interest in the matter.
33. Given the nature of the case, the Commissioner recognises that there is a public interest in disclosure of
the reports.
34. However, the Commissioner acknowledges that there can be a strong argument for maintaining the exemptions
contained in section 34 of FOISA where they relate to investigations relating to deaths in police custody, even
where the information concerned no longer relates to ongoing investigations or proceedings.
35. The Commissioner has considered whether disclosure of the information in question would contribute to the
administration of justice and enforcement of the law, reveal any malpractice, enable correction of misleading
claims or contribute to a debate on a matter of public interest. In the circumstances and having considered the
content of the information that has been withheld, he does not find disclosure to be necessary for any of these
purposes. He agrees with the Authority that the publication of the FAI determination on 10 May 2024 goes some
way to addressing the public interest in disclosure of the information (and was the proper forum for considering
these matters).
36. The Commissioner also notes his finding in Decision 030/2024 (at paragraph 40) that investigative
materials should only be disclosed where the public interest considerations are overwhelming. In this case, he
does not consider that they are.
37. Having carefully considered the particular circumstances of this case, the Commissioner is not satisfied
that the public interest in disclosure is significant enough to outweigh that in withholding the information in
question. The Commissioner therefore concludes that the Authority was entitled to withhold the information under
section 34(2)(b)(ii) of FOISA.
38. Given that the Commissioner has concluded that all of the information withheld by the Authority was
correctly withheld in terms of section 34(2)(b)(ii) of FOISA, he is not required (and does not intend) to consider
the other exemptions it applied to the request.
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 information under section 34(2)(b)(ii) of FOISA, the
Authority complied with Part 1.
However, by failing to correctly identify all the information in scope of the request, the Authority failed to
comply with section 1(1) of FOISA.
Given that the Commissioner agrees that all of the information in scope of the request (including the interim
report identified during his investigation) was properly withheld under section 34(2)(b)(ii) of FOISA, the
Commissioner does not require the Authority to take any action in respect of this failure.
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.
Euan McCulloch
Head of Enforcement
9 December 2024
