REQUEST FOR INFORMATION ON LORD PETER FRASER DENIED(February 24, 2007)
I refer to your request of 7 February 2007 for information under the Freedom of Information (Scotland) Act 2002 which, for the avoidance of doubt, I reproduce as follows:
Q1 - Can you supply all paperwork or microfiche on the matter pertaining to the arrest and charge of Lord Peter Fraser in respect of alleged air rage breach?
Q2 -Will the paperwork show if he was breathalysed?
Having considered your request in terms of the above Act, I would advise you that I am refusing your request for the above information as I consider such information to be exempt in terms of the following exemptions:
Section 34(1)(a)&(b) (Exempt Information - Investigations by Scottish Public Authorities and proceedings arising out of such Investigations)
Section 35(1)(a)&(b) (Exempt Information – Law Enforcement)
Section 38(1)(b) (Exempt Information – Personal Information)
In terms of Section 16 of the Act this represents a refusal notice. Section 16 requires Tayside Police, when refusing to provide such information because it is exempt, to provide you with a notice which: (a) states that it holds the information, (b) states that it is claiming an exemption, (c) specifies the exemption in question and (d) states, if that would not be otherwise apparent, why the exemption applies. I can confirm that Tayside Police hold the information that you requested. The exemptions that I consider to be applicable to the information requested by you are as follows:
Section 34(1)(a)&(b) (Exempt Information – Investigations by Scottish Public Authorities and proceedings arising out of such Investigations)
The information requested by you is exempt as it is held for the purposes of an investigation which Tayside Police has a duty to conduct to ascertain whether a person should be prosecuted for an offence and, furthermore, was held for the purposes of an investigation which, in the circumstances, may have led or may lead to a decision by the police to make a report to the Procurator Fiscal, with a view to determining whether criminal proceedings should be instituted. As you will be aware, the purpose of police officers attending incidents is to investigate the circumstances and ascertain if any person should be the subject of a report to the Procurator Fiscal in connection with any statutory or common law offences. The information requested by you falls within the class-based exemption and, consequently is considered to be exempt. This is a non-absolute exemption and requires the application of a Public Interest Test (see below).
Section 35(1)(a)&(b) (Exempt Information – Law Enforcement)
The information requested by you is exempt, as its disclosure would or would be likely to prejudice substantially the prevention or detection of crime and the apprehension or prosecution of offenders. In the course of an investigation such as this, the police interview and gather evidence from any person who may be in a position to assist them. There is an acceptance that information so gathered, particularly the statements of witnesses and other evidence of opinion, will not be disclosed to third parties other than in the course of criminal proceedings. To do so would undermine this expectation and deter victims or witnesses from reporting matters to the police. This would be likely to prejudice substantially the investigation and detection of crime and the apprehension or prosecution of offenders. This is a non-absolute exemption and requires the application of a Public Interest Test (see below).
Section 38 (Exempt Information – Personal Information)
The information requested by you contains personal data relating to living persons. The release of this information to a third party does not accord with the principles of the Data Protection Act 1998 and is therefore exempt. This exemption is an absolute exemption and does not require a Public Interest Test to be carried out.
PUBLIC INTEREST TEST:
Accountability - There is a public interest in disclosing information that relates directly to the efficiency and effectiveness of the Force or its officers, including how they execute their duties.
Public Participation - There is a public interest in disclosing information that would enhance informed debate on how the Force delivers its services and the general basis for decision making.
Justice to an Individual
- The public interest may also be served by providing individuals with information of particular reference to them and their situation, such as information that might assist them to understand steps taken by the Force in dealing with that individual. However, this must be done with due regard to personal information that does not fall under the disclosure provisions contained in the Act.
Criminal Investigations - Bearing in mind that the Freedom of Information process is applicant blind, information relating to criminal investigations will rarely be disclosed under the Act and only where there is an over-riding public interest consideration favouring disclosure.
Fair Treatment of an Individual - The public interest is likely to lie in favour of non-disclosure where the release of information may impact on the reputation or professional standing of an individual, such as might be the case if that person has been the subject of unsubstantiated allegations.
Effective and Effective Conduct of the Force - There is no public interest in the release of information where the current or future law enforcement role of the Force may be compromised by the release of the information. This should be considered in tandem with the following consideration.
Flow of Information to the Force - Individuals provide information to the police with an expectation that this information will remain confidential unless the individual is required to attend court as a witness. Such individuals do not have any expectation that this information will be supplied to anybody who is not directly connected with the investigative or prosecution process. It is likely that individuals would be less willing to provide information to the police in the knowledge that such information would enter the public domain other than in the setting of a court room. There is no discernible public interest in releasing information under the auspices of Freedom of Information that would result in any reduction in the willingness of the public to assist the police during the investigation of criminal conduct.
It is the role of the police to prevent, investigate and detect crime and to record information in connection with this statutory responsibility. Furthermore, the provision of the personal data considered to be exempt in this case for such a purpose does not accord with the Data Protection principles, given that it was gathered for the policing purpose under the 1998 Act. Finally, the applicability of the exemptions listed above, the need to ensure the effective and efficient conduct of the Police Service and the need to safeguard the flow of information in relation to the investigation of crime, clearly favour non-disclosure of the information requested. Accordingly, on balance, the public interest in disclosing the information requested is outweighed by that in maintaining the exemptions detailed.
I regret I cannot be of more assistance to you on this occasion. However, if you are not satisfied with the way in which your request has been dealt with, you are entitled, in the first instance, to request a review of the decision made by the Force. Should you wish to request such review, please write to me within 40 days of receiving this communication. I will arrange for a senior officer, who has not been involved in my decision making process, to conduct a review as required by the Act. If, after having been informed of the review panel's decision, you are still not satisfied, you are then entitled to apply to the Scottish Information Commissioner for a decision. The contact details for Mr Dunion, the Scottish Information Commissioner are Office of the Scottish Information Commissioner, Kinburn Castle, Doubledykes Road, St Andrews, Fife, KY16 9DS, telephone 01334 464610.
Freedom of Information Officer
Tel: 01382 596169
Fax: 01382 596048
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