Murder in Newcastle Emlyn 1077/2023
FOI Reference: 1077/2023
Request:
I'm investigating the Pantygwenith murder case near Newcastle Emlyn as 32-year-old Michael John Fry was jailed for manslaughter at Cardiff Crown Court in the early 90s.
Would you have any files or information that I would be able to see?
Response:
Section 1 of the Freedom of Information Act 2000 (FOIA) places two duties on public authorities. Unless exemptions apply, the first duty at Section 1(1)(a) is to confirm or deny whether the information specified in a request is held. The second duty at Section 1(1)(b) is to disclose information that has been confirmed as being held. Where exemptions are relied upon Section 17 of FOIA requires that we provide the applicant with a notice which: a) states that fact b) specifies the exemption(s) in question and c) states (if that would not otherwise be apparent) why the exemption applies.
Dyfed-Powys Police can neither confirm nor deny that it holds information pertinent to this request as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:
Section 40(5) - Personal Information
Section 30(3) - Investigations & Proceedings Conducted by Public Authorities
Section 40 is an absolute class-based exemption and therefore there is no requirement to conduct a harm or public interest test.
Section 30 is a class based qualified exemption and consideration of the public interest must be given as to whether neither confirming nor denying the information exists is the appropriate response.
Section 40(5) – Personal Information:
The duty to neither confirm nor deny under this section of the Act arises if confirmation as to whether the requested information is or isn’t held would breach any of the data protection principles contained within Part 3 - Chapter 2 of the Data Protection Act 2018. Under Section 34 within Chapter 2 “The Controller in relation to personal data is responsible for and must be able to demonstrate, compliance with Chapter 2”. Such information would not be confirmed as held under the Freedom of Information Act 2000 unless there is a strong public interest. One of the main differences between the Freedom of Information Act 2000 and the Data Protection Act 2018 is that any information released under FOI is released into the public domain, not just the individual requesting the information and disclosure under the Act must be made with that in mind. As such, any release that identifies an individual through releasing their personal data, even third-party personal data is exempt.
Personal data is defined under Section 3 of the Data Protection Act 2018 as:
“(2) ‘Personal data’ means any information relating to an identified or identifiable living individual (subject to subsection (14)(c)).
(3) ‘Identifiable living individual’ means a living individual who can be identified, directly or indirectly, in particular by reference to—
(a) An identifier such as a name, an identification number, location data or an online identifier, or
(b) One or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.”
All members of the public including those employed by the force have an intrinsic right to privacy and these rights are protected by virtue of the Human Rights Act, the Data Protection Act 2018 and the General Data Protection Regulation (GDPR) and a public authority must not interfere with that right. Any release of the information subject to the exemption is likely to compromise those rights.
Data Protection Act 2018
Part 3 – Law Enforcement – Chapter 2 Principles Section 35
The first data protection principle:This section has no associated Explanatory Notes
“(1) The first data protection principle is that the processing of personal data for any of the law enforcement purposes must be lawful and fair.”
General Data Protection Regulation
Article 5 of the GDPR – ‘Principles relating to processing of personal data’ provides:
“1. ‘Personal data’ shall be
- Processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency);
- Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest…
- The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).”
Dyfed-Powys Police would not want to confirm nor deny whether any information is held, relevant to the request, if confirmation/denial could potentially identify an individual. In this case, any information that may or may not be held relevant to the request could potentially contain personal data of identifiable individuals and any disclosure, by citing an exemption or stating no information held would clearly breach the Data Protection Act as a consequence I am satisfied that Section 40(5) Personal Information exemption is applicable.
Section 30(3) - Investigations & Proceedings Conducted by Public Authorities:
Public Interest Test
Factors favouring confirmation or denial for Section 30:
Confirmation or denial that any information exists could provide satisfaction to the general public that such investigations are conducted properly.
Factors against confirmation or denial for Section 30:
Whilst there is a public interest in the transparency of policing operations and providing assurance that Dyfed-Powys Police is appropriately and effectively dealing with such incidents, there is a strong public interest in safeguarding the integrity of police investigations and operations and in maintaining confidence in the Police Service. Confirmation or denial that any information is held relevant to the request would undermine and compromise the integrity of any investigative process.
Any disclosure under Freedom of Information is a release of information to the world in general and not an individual applicant. Therefore, by simply applying exemptions or stating no information held would confirm whether a force does or does not hold information relating to the request.
Balance Test
The Police service will not divulge whether information is or is not held if to do so would undermine law enforcement or affect the health and safety or well-being of individuals. Although the way the Police conduct investigations should be transparent and shared with the public they have a greater duty to protect the public from harm or distress to safeguard the integrity of police investigations therefore it is Dyfed-Powys Police’s opinion that for these issues the balancing test for confirming or not that information is held, is not made out.
In accordance with the Freedom of Information Act 2000, this represents a Refusal Notice for this particular request.
No inference can be taken from this refusal that the information you have requested does or does not exist.
(This is a response under the Freedom of Information Act 2000 and disclosed on 07/05/2024)