When Police Can Refuse to Confirm or Deny Information About Investigations (FOIA)

NCN: [2026] UKFTT 00951 (GRC) Case Reference: FT/EA/2026/0003 First-tier Tribunal (General Regulatory Chamber) Information Rights Heard by Cloud Video Platform Heard on: 3 June 2026 Decision given on: 26 June 2026 Before JUDGE TAFT MEMBER GRIMLEY-EVANS MEMBER DR MANN Between [APPELLANT] Appellant and (1) INFORMATION COMMISSIONER (2) THE COMMISSIONER OF POLICE FOR THE METROPOLIS Respondents Representation : For the Appellant: Ms Khan, Counsel For the Respondent: Did not attend For the Second Respondent: Ms Wright, Counsel Decision: The appeal is Dismissed Definitions: “FOIA” Freedom of Information Act 2000 “the IC” The Information Commissioner “the MPS” The Commissioner of Police for the Metropolis “NCND” neither confirm nor deny Mode of hearing: The Tribunal was satisfied that it was fair and just to conduct the hearing using Cloud Video Platform (CVP). The Appellant and Second Respondent were able to attend. The Tribunal was satisfied that all parties had notice of the hearing and determined that it was in the interests of justice to proceed. REASONS Introduction 1. This is an appeal against Decision Notice IC-420587-K4S2 of the IC (“the DN”) that the MPS was entitled to rely on Section 30(3) of FOIA to NCND whether it held any information in response to [APPELLANT]’s request. 2. [APPELLANT] sought information about a named police investigation. On 8 July 2025, he requested the following information (“the Request”): I would like to receive all information, including emails, memos, and reports, related to Operation [ redacted] , which focuses on serious misconduct on the NE BCU. Emails from Chief Inspector [ redacted] Commander [ redacted] DAC [ redacted] All other emails from any other officer/staff member.

3. On 17 July 2025, the MPS responded to say that it could NCND whether it held the information requested, relying on Sections 30(3) and 31(3) of FOIA. [APPELLANT] attempted to request an internal review on 29 July 2025 but did not receive a response. 4. [APPELLANT] complained to the IC on 29 August 2025. On 23 December 2025, the IC issued the DN confirming that the IC’s decision was that the MPS was entitled to rely on Section 30(3). [APPELLANT] appeals against that decision. The Law - General 5. Section 1 FOIA provides: (1) Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him. (2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14. (3) … (4) The information— (a) in respect of which the applicant is to be informed under subsection (1)(a), or (b) which is to be communicated under subsection (1)(b), is the information in question held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request. (5) A public authority is to be taken to have complied with subsection (1)(a) in relation to any information if it has communicated the information to the applicant in accordance with subsection (1)(b). (6) In this Act, the duty of a public authority to comply with subsections (1)(a) is referred to as “the duty to confirm or deny”.

6. Section 2(1) provides that Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either— (a) the provision confers absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information, section 1(1)(a) does not apply.

7. FOIA defines “Information” at section 84 which provides: “information” (subject to sections 51(8) and 75(2)) means information recorded in any form;

8. There is a process of challenge. The first challenge is for the requester to apply to the IC for a Decision Notice (FOIA, section 50). If either side (the requester or the public authority) wishes to challenge the IC’s Decision Notice, they are entitled to appeal to this Tribunal (FOIA, section 57). This Tribunal’s powers are found in Section 58 FOIA which provides: (1) If on an appeal under section 57 the Tribunal considers— (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based. The law – Specific to this appeal 9. Section 30 FOIA provides that (1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of— (a) any investigation which the public authority has a duty to conduct with a view to it being ascertained— (i) whether a person should be charged with an offence, or (ii) whether a person charged with an offence is guilty of it, (b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or (c) any criminal proceedings which the authority has power to conduct. … (3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1) or (2).

10. Section 31 FOIA provides that (1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice— (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders, (c) the administration of justice, … (g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2), … (2) The purposes referred to in subsection (1)(g) to (i) are— (a) the purpose of ascertaining whether any person has failed to comply with the law, (b) the purpose of ascertaining whether any person is responsible for any conduct which is improper, … (3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).

11. Both Sections 30 and 31 are qualified exemptions, so the public authority must carry out a balancing test to determine whether or not the public interest in favour of maintaining the right to NCND whether or not the information is held outweighs the public interest in disclosing whether the public authority holds the information.

12. As the Upper Tribunal explained in Maurizi v The Information Commissioner & the Crown Prosecution Service v Foreign & Commonwealth Office [2019] UKUT 262 (AAC) [at paragraph 42]: “in qualified exemption cases, while the duty to confirm or deny does not ‘arise’, it will nevertheless apply unless the public interest test in maintaining exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the information is held.” 13. And at paragraph 196: “Section 30(3) is the gateway to the public interest balancing exercise under section 2(1). To the extent that the information requested does not pass through the gateway, the applicant's right to be told whether information is held is preserved. In other words, the right to be told is preserved in relation to so much of the requested information as does not match the descriptions in section 30(1) and (2).” 14. In Savic v IC, Attorney General & Cabinet Office [2016] UKUT 535, the Upper Tribunal confirmed that the test relating to NCND is significantly different from the test of whether to disclose information. The test is based on the hypothesis that the public authority may or may not hold the information.

15. Whereas Section 30 is a class-based exemption, Section 31 is a prejudice-based exemption, i.e. there must be prejudice for the exemption to be engaged. The test in respect of prejudice cases (i.e. in this case Section 31) is set out in Hogan and Oxford City Council v IC [2011] 1 Info LR 588 and approved by the Court of Appeal in DWP v IC [2017] 1 WLR 1 :

28. The application of the ‘prejudice’ test should be considered as involving a number of steps.

29. First, there is a need to identify the applicable interest(s) within the relevant exemption. … 30. Second, the nature of the ‘prejudice’ being claimed must be considered. An evidential burden rests with the decision maker to be able to show that some causal relationship exists between the potential disclosure and the prejudice and that the prejudice is, as Lord Falconer of Thoronton has stated, “real, actual or of substance (Hansard HL, Vol. 162, April 20, 2000, col. 827).”… 31. When considering the existence of ‘prejudice’, the public authority needs to consider the issue from the perspective that the disclosure is being effectively made to the general public as a whole, rather than simply the individual applicant. … 34. A third step for the decision-maker concerns the likelihood of occurrence of prejudice. A differently constituted division of this Tribunal in John Connor Press Associates Limited v Information Commissioner (EA/2005/0005) interpreted the phrase “likely to prejudice” as meaning that the chance of prejudice being suffered should be more than a hypothetical or remote possibility; there must have been a real and significant risk. … 35. On the basis of these decisions there are two possible limbs on which a prejudice-based exemption might be engaged. Firstly, the occurrence of prejudice to the specified interest is more probable than not, and secondly there is a real and significant risk of prejudice, even if it cannot be said that the occurrence of prejudice is more probable than not. We consider that the difference between these two limbs may be relevant in considering the balance between competing public interests (considered later in this decision). In general terms, the greater the likelihood of prejudice, the more likely that the balance of public interest will favour maintaining whatever qualified exemption is in question.

16. In Maurizi , the Upper Tribunal confirmed [at paragraph 54] that in respect of prejudice cases such as under Section 31: “Since the consequences of disclosure is key, which of necessity has not yet occurred, the fact-finding task involves having to make a prediction.” Decision Notice 17. The IC decided that: (a) The phrase “at any time” in Section 30(1)(a) means that information may be exempt if it relates to a specific ongoing, closed or abandoned investigation; (b) The information must be held for a specific or particular investigation, not for investigations in general; (c) The requested information, if held, would relate to a specific police investigation and so would relate to investigations conducted by the MPS; (d) The exemption provided by Section 30(3) is therefore engaged; (e) Section 30 exemptions exist to ensure the effective investigation and prosecution of offences and the protection of confidential sources; (f) They recognise the need to prevent disclosures that would prejudice either a particular investigation or set of proceedings or investigatory and prosecution processes generally, including future investigations and proceedings; (g) The MPS had acknowledged that confirming or denying that information was held would lead to a better informed public and the public may be encouraged to assist more readily with such investigations; (h) The MPS had argued that it would not be in the public interest to disclose information, even inadvertently through confirmation or denial, which could identify investigative activity and subsequently undermine those processes – this would hinder the prevention or detection of crime and apprehension and prosecution of offenders; (i) It would not be in the public interest to jeopardise the ability of the MPS to investigate crime effectively; (j) Confidence in the MPS will be increased by allowing scrutiny of their performance, which may involve revealing whether or not any actions have been necessary, or are potentially ongoing; (k) A confirmation or denial might be harmful to the MPS’s responsibility to manage investigations effectively; (l) Disclosure of information could undermine the MPS’s present and future investigations and hinder its policing functions, which would not be in the public interest; (m) A public authority will need to use NCND consistently to prevent refusing to confirm or deny being taken by requesters as an indication of whether or not information is held; (n) This does not mean that public authorities should use NCND in a blanket fashion: they should base their decision on the circumstances of the particular case with regard to the nature of the information requested and with appropriate consideration of the public interest test; (o) Taking all of that into account, the IC was satisfied that Section 30(3) was applied appropriately and that the public interest in maintaining the exclusion of the duty to either confirm or deny outweighs the public interest in disclosing whether or not MPS holds the information; (p) The IC did not therefore go on to consider Section 31. Grounds of Appeal 18. [APPELLANT] appealed that decision to this Tribunal on 1 January 2026. He relied on eight grounds: (1) Procedural unfairness: The MPS’s failure to conduct an internal review. (2) Inadequate justification of NCND: Reliance on generic, theoretical harm arguments rather than evidence of specific, real prejudice to an investigation in this case – the NCND response was applied as a blanket policy. (3) Weak engagement of Section 30(3): No limb of Section 30(1) was clearly identified or justified in relation to the specific information requested. The MPS did not specify whether the operation relates to an ongoing, closed or historical investigation. If historical or no longer active, the Section 30(1)(a) exemption may not apply. The IC assumed without evidence that information held would be for the purposes of an investigation. (4) Flawed public interest test: The IC gave excessive weight to vague, generic harm arguments whilst undervaluing the strong public interest in transparency, accountability and public confidence in policing. There was no evidence of actual or likely harm to a specific investigation. The IC failed to properly consider that the operation may relate to matters of significant public concern. (5) Failure to consider less restrictive alternatives: The IC didn’t explore whether partial disclosure, redaction or confirming or denying the existence of the operation without disclosing details could satisfy the public interest without harming law enforcement. (6) Overreliance on a consistent NCND policy: this cannot override the requirement to justify exemptions in each case. (7) Lack of analysis of Section 31(3). (8) Potential misuse of exemptions to avoid scrutiny. The use of NCND risks being perceived as a means to avoid accountability, especially where there may be legitimate public interest in understanding police activity. IC Response 19. The IC’s Response dated 2 February 2026 relied on the Decision Notice but also made the following observations: (a) The MPS did provide a functional email address for internal reviews; (b) There is no requirement that there be any demonstration that the disclosure sought would cause prejudice to any investigation or criminal proceedings - relying on a first-tier decision of the then Information Tribunal in Toms v IC EA/2005/0027; (c) Again, relying on Toms , if information is subject to the exemption, it remains so even if the particular purpose(s) for which it was retained is no longer material; (d) Informing [APPELLANT] of the status of the operation would render the decision to NCND meaningless; (e) [APPELLANT] relied on a general interest in transparency as the public interest in disclosure but something substantial and particular to the information is required; (f) Confirmation or denial would likely harm the alleged investigation concerned and the MPS’s ability to investigate more generally, which would be against the public interest; (g) One cannot consider partial disclosure of information when the public authority is NCND that information is held; and (h) The IC is not required or expected to consider every exemption relied upon. MPS Response 20. The MPS’s Response dated 19 March 2026 made the following points: (a) Section 30(1)(a) exempts categories of information – it is not necessary to establish prejudice, in contrast to Section 31(3); (b) The exemptions in Sections 30(3) and 31(3) are not mutually exclusive and can consistently be applied to the same information; (c) The correct approach to prejudice-based exemptions is that set out in Hogan ; (d) Prejudice is measured by reference to the impact of disclosing information (including about whether or not it is held) to the world at large, not the requester specifically; (e) The importance of consistency in NCND has been held as an important tool to protect the integrity of investigations and investigative and regulatory functions more generally by avoiding tipping off suspects and potential suspects and combating a “mosaic effect”; (f) Whilst the DN did not go on to consider Section 31(3), the MPS maintained reliance on both exemptions; (g) Section 30(3) is engaged for the reasons set out in the DN; (h) Section 31(3) is engaged because the MPS’s law enforcement functions include the prevention and detection of crime and the apprehension and prosecution of offenders; (i) There is clear public interest in ensuring the MPS can perform these functions effectively, now and in the future; (j) Confirming or denying whether the requested information was held would prejudice those functions because it would enable the public, including actual or potential suspects, to build up a picture of the nature, scope and status of the MPS’s investigations, identify who may currently or in the future be subject to investigation, identify the approach and methodology of investigations and potentially subvert them and make individuals less willing to assist with enquiries. That is real, actual prejudice of substance which if realised would have substantial, widespread and lasting impact. (k) The public interest in NCND whether or not the information was held outweighs the public interest in disclosing whether or not the information is held for the reasons set out in the DN. (l) Ground 1: [APPELLANT] suffered no prejudice from any procedural failure to carry out an internal review (which is not admitted) because the IC proceeded with his complaint regardless. (m) Ground 2 is misconceived: neither Section 30(3) nor Section 31(3) require prejudice to a specific investigation, which would defeat the purpose of the provisions. (n) The first and second objections in Ground 3 rely on an incorrect understanding of Section 30(3) and the third is unsupported by evidence. (o) The final concern in Ground 4 is misconceived for the same reason as Ground 2. The approach taken to the public interest test was appropriate in law and within the range of reasonable decisions. The contention that factors were undervalued as opposed to outweighed is unsupported by evidence. (p) Ground 5 is misconceived in an NCND case. (q) Neither objection in Ground 6 provides a basis for overturning the DN. (r) Ground 7: the decision not to consider the second exemption once the first was correctly applied was not an error of law or improper exercise of discretion. Evidence 21. We considered a bundle of 118 pages. Submissions – Appellant 22. Ms Khan confirmed that [APPELLANT] was no longer pursuing Grounds 1, 5 and 7. She “reformulated” the other grounds and confirmed that there was no dispute as to the legal framework as set out in both Responses.

23. Ms Khan confirmed that [APPELLANT] does not accept that Section 30(3) is in fact engaged. She said that the background was that [APPELLANT] himself was a Chief Inspector with the MPS and that he had raised concerns about professional misconduct, following which a statement was taken but he was not aware of any further action. Whilst Ms Khan conceded that it was theoretically foreseeable that there could be an investigation into whether or not criminal offences were committed, it is [APPELLANT]’s submission that there was no such investigation so it was not clear to him how Section 30(3) was therefore engaged. Ms Khan accepted that Section 31 was wider and that that exemption was more widely engaged.

24. Ms Khan referred to the crux of [APPELLANT]’s case being the balancing test. She suggested that this requires a hypothesis but in the context of what is known about the nature of the information requested. Ms Khan accepted that there were public interest factors in favour of upholding NCND but asserted that they were given excessive weight that made the overall decision erroneous. She suggested that greater weight needed to be placed on those factors that were identified in the DN as favouring confirming or denying that the information was held.

25. Ms Khan said that we should look at the background and context: this was not a complaint from a member of the public but a serving officer raising serious concerns. There was significant public interest in transparency generally but particularly the handling of serious complaints about the MPS’s own senior officers. This was linked to trust and confidence in the police, which is an increasingly high-profile issue in recent years. NCND stops further scrutiny about whether or not action was taken.

26. Ms Khan reminded us that public authorities should not apply NCND in a blanket fashion, which may have occurred here. She said that this appears to be a stock response applied in a generic manner without taking into account the circumstances. She acknowledged that a consistent approach was permissible but said that this is not undermined by the occasional exception in appropriate circumstances, suggesting that the principle of consistency may be more relevant in other case such as repeated requests of a similar type. Here, the MPS were unlikely to receive similar requests from the public who would not have the internal knowledge available to [APPELLANT]. Submissions – Second Respondent 27. We considered Ms Wright’s skeleton argument, which invited us to uphold the DN because she said it was properly made and involved no error of law or discretion. She referred to the DN and the MPS’s initial response on the engagement of Sections 30 and 31, asserting that if held, the requested information would have been held for a qualifying investigation under Section 30(1) and that there is an acknowledged public interest in ensuring that the MPS’s functions of preventing and detecting crime and apprehending and prosecuting offenders are performed effectively. She said that confirming or denying that information was held would prejudice those functions because it would enable the public, including actual or potential suspects, to build up a picture of the nature, scope and status of the MPS’s investigations, identify who may currently or in the future be subject to investigation, identify the approach and methodology of investigations and potentially subvert them, and make individuals less willing to assist with enquiries.

28. She said that in both cases the public interest in maintaining NCND outweighs the public interest in disclosing whether or not the information was held for the reasons set out in the MPS response and DN. She went on to address the grounds of appeal in substantially the same way as set out in the MPS Response.

29. In oral submissions, Ms Wright made two initial points about Section 30: (a) There is no time limit for information to be exempt, which can be seen from the words “at any time” ; and (b) Section 30 exempts categories of information: it is not necessary to establish prejudice.

30. She said that we were being encouraged to treat the disclosure in a different way because the request came from a serving police officer but she asserted that because disclosure is unrestricted and to the world at large, it is important that prejudice is measured in that context.

31. She suggested that there were strong arguments in favour of a consistent approach in cases of this nature, relying on Maurizi and Bridgwood v IC & EHRC [2025] UKFTT 01530 (GRC) as authorities that have recognised the prejudice to investigations and future investigations, which can be cumulative and mosaic. She suggested that confirming or denying whether or not the requested information was held to the world at large could create that prejudice, particularly if combined with other information in the public sphere.

32. So far as the engagement of Section 30(1) was concerned, she pointed us to the unredacted request that named the operation, and the submissions made that this was an operation into serious misconduct of senior police officers. She suggested that that would plainly involve considering whether or not those officers should be charged with an offence or were guilty of it: the fact that it may be misconduct doesn’t preclude the fact that there may also be criminal offences.

33. She said that it was not contentious that the MPS has law enforcement functions that cover subsections (a) and (b) of Section 31(1). She referred us to the specific forms of prejudice set out in her skeleton argument. Confirming or denying whether or not information was held would enable the public, including suspects, to build up a picture of investigations – who may be a suspect, the approach and methodology – and make individuals less likely to come forward to make complaints, including potentially other police officers. Again, she suggested that a consistent approach is permissible to avoid mosaic identification and said that which is not the same as a blanket or stock response.

34. Ms Wright made the same arguments for the public interest in favour of NCND. She acknowledged that there was a public interest in disclosure but said that the general interest in transparency was not sufficient. She acknowledged that the requester is a serving officer and that the concerns he raised were serious but said that neither were factors that tipped the balance. Indeed, she asserted that the more serious the concerns, the stronger the engagement of Sections 30 and 31. In conclusion, she submitted that the DN dealt appropriately with the public interest test in considering the factors and that it was not an error of law to weigh them differently to how [APPELLANT] wanted, neither does this suggest that the IC should have exercised his discretion differently.

35. Ms Wright said that Ground 2 was misconceived because neither Section 30 nor 31 requires prejudice to a specific investigation as that would undermine the protection of NCND. She said that it wouldn’t matter if the operation were historical and suggested that appropriate consideration was given to the specific nature of the request. She concluded by asserting that neither Grounds 6 nor 8 explained or justified why there was an error of law or the IC should have exercised his discretion differently and that the principle of consistency was not overused: this was a principle highly relevant to police investigations because there was value in protecting the important public interest in the effective investigation of wrongdoing. Issues 36. Both parties present in the hearing agreed that the Tribunal are considering whether or not the DN was in accordance with the law or alternatively whether the IC should have exercised his discretion differently. We agreed that as both Sections 30 and 31 are qualified exemptions, there are two stages: (1) Do the exemptions apply? That will require us to firstly examine whether or not Sections 30(1) and 31(1) are engaged in order that Sections 30(3) and 31(3) are themselves engaged. (2) Does the public interest in NCND outweigh the public interest to confirm or deny that the MPS holds the information? We answer that question with an assumption that hypothetical information may exist or it may not.

37. Both parties present in the hearing confirmed that they agreed that the proper approach if the Tribunal consider that the DN was wrong would be to issue a substituted DN requiring the MPS to state whether or not they held the requested information in order that there can then be proper consideration as to whether any exemptions apply to prevent that information being disclosed. Findings of Fact 38. We make these findings on the balance of probabilities. 39. [APPELLANT] requested information in respect of a named police investigation. He knew the name of the investigation because he is a serving police officer with the MPS and had himself raised serious concerns about alleged serious misconduct of senior officers. He had given a statement to the MPS.

40. We find that in any investigation of serious misconduct of senior police officers there is likely to be a consideration of whether or not to charge one or more of those officers with an offence, whether or not the allegations also amount to professional misconduct. Conclusions 41. We do not know whether an investigation proceeded, is ongoing or concluded or whether or not there was any action taken against the officers complained about (whether in respect of disciplinary or criminal proceedings). Our conclusions must be made on a hypothetical basis, with any of these hypotheses being possible. There may be information held that confirms that an investigation was carried out but equally confirming or denying that information is held could highlight that [APPELLANT]’s complaint was not investigated.

42. We find that the DN was correct to say that Section 30(3) was engaged. If there was an investigation, we have found on the balance of probabilities that it would have considered whether or not a person should be charged with an offence. We do not consider that the IC needed to identify a specific investigation or whether that was ongoing, closed or historical. It is enough that the requested information relates to a named operation, which we have found was likely to have considered whether or not a person should be charged with an offence. Section 30(1)(a)(i) is therefore engaged, subject to the public interest balancing test.

43. We find that the DN did properly weigh the factors in favour and against NCND. In doing so, we have carefully considered the difference between a permissible consistent approach and an impermissible blanket approach. In our view, a consistent approach requires the public authority not to simply apply NCND to all requests of a particular class without thought as to the competing public interests – that would be a blanket approach. A consistent approach takes into account competing interests and considers carefully whether a particular request should be treated consistently with others in which NCND is used. We are satisfied that the MPS applied a consistent rather than blanket approach in this case. That can be seen from the initial response to the request, which sets out the competing public interests before concluding that the balance is in favour of NCND.

44. We consider that there are powerful public interests in favour of a consistent NCND approach to requests of this type, i.e. for specific information about named police investigations. FOIA is applicant blind, so it does not matter that the request came from a serving police officer with “insider information”. Applying a consistent approach, it is proper to treat the request as if it came from a member of the public with no such information. That member of the public may be an interested bystander or a victim, but they might also be a suspect or in a position in which they could “tip off” a suspect. Applying NCND prevents information from being effectively released by a mosaic effect, either from multiple requests or by linking it to publicly available information. We do not believe that excessive weight was placed on these factors, or that they are generic or vague: this is a powerful public interest.

45. We agree that there is public interest in transparency and trust in policing, particularly in the context of allegations of serious misconduct about senior officers. We agree that there is public interest in scrutiny and that NCND could in theory be used to avoid scrutiny. We consider however that the DN appropriately weighed the public interest in favour of confirming or denying that the information was held against NCND. In short, the IC was correct to conclude that the powerful public interest in preventing the release of information by mosaic hampering current or future investigations outweighed the public interest in confirming or denying that the information was held.

46. Whilst it is conceded that there was no error by the IC in failing to go on to consider Section 31, we have considered that exemption ourselves. We find that Section 31(3) was engaged not only because disclosure would prejudice the prevention or detection of crime [Subsection (1)(a)] and the apprehension and prosecution of offenders [Subsection (1)(b)] but also because it would prejudice the exercise of functions in ascertaining whether or not a person has failed to comply with the law [Subsection (2)(a)] and whether or not a person is responsible for improper conduct [Subsection (2)(b)].

47. For the reasons we found that Section 30(3) is engaged, we consider that disclosure could prejudice the prevention and detection of crime, the apprehension and prosecution of offenders and whether or not a person has failed to comply with the law. An investigation of the nature described by [APPELLANT] is likely to have considered whether or not a crime was committed, or a person has complied with the law, and, if so considered, go on to assist a prosecution. “Tipping off” of suspects (perhaps by mosaic) by confirming to the world at large whether or not information was held is likely to prejudice those functions. The release of information by mosaic might also reveal the approach and methodology of investigations, which could negatively impact both current and future investigations if potential suspects know how they might be investigated. We agree that it might make members of the public less willing to assist with enquiries in the future. There is therefore a causal link between NCND and the prejudice relied upon, which is real, actual, of substance and likely to occur.

48. Even if there is no consideration of whether or not a crime was committed, an investigation of this nature must consider whether or not there has been any improper conduct. That is, of course, the nature of the allegations made by [APPELLANT] that he says were the subject of the named investigation: serious misconduct by senior officers. Such an investigation would also be prejudiced by “tipping off” or revealing information about the approach or methodology of conduct investigations in the same way as a criminal investigation.

49. We consider that there are the same public interests in favour of and against NCND when considering Section 31. For the same reasons as we explore above in respect of Section 30, we consider that the balance is in favour of NCND because of the very powerful public interest in ensuring that current and future investigations are not compromised by the release of information by mosaic, which outweighs the public interests in transparency, scrutiny and trust in policing.

50. For all of those reasons, the DN was in accordance with law, and the IC exercised his discretion appropriately. The appeal is therefore dismissed. There is no need to issue a substituted decision. Signed Date: 24 June 2026 Judge Taft