Following a substantially successful appeal by the BBC journalist Alex Homer, the First Tier Tribunal has directed Walsall Council to provide access to information contained within a Serious Case Review into child sexual abuse in the West Midlands. Authorities and professionals involved emphasised the scale and complexity of the investigation and the severity of the offences which had been committed, which led to several criminal trials and convictions.
Although the presumption under the Children Act 2004 is that Serious Case Reviews are made public, in this case, the Local Children Safeguarding Board made the decision not to publish it. Mr Homer made a Freedom of Information Request to the Council, which was refused. This decision was upheld by the Information Commissioner.
In his appeal, Mr Homer argued that the Commissioner had not considered whether a redacted version of the Report could be disclosed (he expressly did not seek disclosure of the victim’s identities). He also argued that the Commissioner was wrong to conclude that there was no appropriate statutory route for the disclosure of special category data.
The Tribunal allowed the appeal in part and ordered the Council to provide a redacted version of the Serious Case Review to the BBC.
Key findings were that:
1. Neither the Council nor the Commissioner applied a sufficiently specific approach to the disclosure of the information set out in the Report: [54]. There was significant content which could be disclosed without infringing the rights of data subjects: [116]. However, personal data about health care professionals, the author of the report and the victims of the offences should be redacted: [73], [92], [115].
2. Any special category data which remained in the Report once redactions had been applied could be disclosed in reliance on DPA Schedule 1 paragraph 13 (journalism in connection with unlawful acts and dishonesty): [104]. There was a clear public interest in understanding how these events occurred over an extended period, and the Report had been prepared specifically to identify lessons learned: [63].
3. The other exemptions relied upon on the Council did not apply:
- The Council had not established that disclosure of the Report, subject to redactions, would be likely to endanger the health and safety of any individuals: [129]. The evidence was limited and vague, and much of it was speculative: [125].
- The Council’s evidence fell short of demonstrating that it is under a legal duty of confidence or that disclosure of the Report to the public would constitute an actionable breach of confidence: [136].
- The Council had not demonstrated that disclosure of the Report is prohibited by or under any enactment relating to copyright: [140].
The finding in (2) above is significant for journalistic rights in the context of FOIA. One of the criteria for this exemption to apply is that “the data controller reasonably believes that publication would be in the public interest”. The Commissioner submitted that this required evidence that the Council reasonably holds this belief. Mr Homer argued that this would render the exemption redundant in the context of FOIA, by effectively allowing the public authority to determine for itself, by reference to its own belief, that publication of personal data would or would not be in the public interest. The Tribunal agreed. Its finding on this issue preserves a proper balance between protection of personal data and Article 10 ECHR.
Jonathan Scherbel-Ball and Hope Williams acted for Mr Homer, instructed by the BBC Programme Legal Advice.
The full judgment is here.