[2025] UKUT 076 (AAC)

I sketch in only sufficient of the background to frame a proper understanding of the FTT’s consent to withdraw the appeal decision and the arguments made on this appeal about that decision.

Mr Greenwood is a journalist for The Times newspaper. In that capacity, he has written a number of articles about the Met Police’s handling of sexual offences. Following a reply by the Met Police to a prior request for information made to it by Mr Greenwood, on 15 August 2022 he made the following request for information to the Met Police:

“Please provide a copy of the [Metropolitan Police Service’s] Pan London Serious Sexual Offence Problem Profile, as set out in your [previous reply].”

On 19 December 2022 the Met Police refused the request. It relied on sections 30(1)(a), 31(1)(a) and (b), 38(1) and 40(2) of the Freedom of Information Act 2000 (“FOIA”) in so doing. That decision was upheld on internal review.

Mr Greenwood then made a complaint to the Information Commissioner (“the ICO”) under section 50(1) of FOIA about the Metropolitan Police’s refusal of the above request. By a Decision Notice of 20 June 2023, the ICO rejected the Met Police’s reliance on sections 30, 31 and 38 of FOIA and required disclosure of the Serious Sexual Offences Problem Profile, save for personal data caught by section 40(2) of FOIA. In the course of his investigation of the complaint, the ICO had been told by the Met Police that it held one report falling within the scope of Mr Greenwood’s request. That report was 29 pages in length and contained:

“tables, charts, maps, references, problem profiles, strategic assessments created as an intelligence product for the MPS. The report has a clear framework of analysis of information and intelligence for allowing a problem solving approach to law enforcement and crime prevention. The aim is to identify the issues and find ways to deal with the problem. The report covers key areas of concern for example identified and named venues, provides a detailed analysis regarding description of victim profiles and suspects. Names schools, areas for offences, venues for repeat locations, street names, hotel names, names of entertainment venues, names of mini cab companies, locations of sex workers, gaps and recommendations. The sensitive information contained within the report was not created or intended for public release as the information includes tactical elements as well as data and information relating to very specific areas, locations, and demographics which could also identify victims

The reasons why the ICO upheld Mr Greenwood’s complaint and found the Met Police had not dealt with his request in accordance with the requirements of Part I of FOIA were, in summary, because (a) the exemptions in sections 30(1)(a) and 31(1)(b) of FOIA are mutually exclusive and could not both cover the same information, and (b) the Met Commissioner, had relied on those exemptions and the exemption in section 38(1)(b) of FOIA in a blanket fashion and had not therefore demonstrated that any of the relevant exemptions were properly engaged.

Dissatisfied with this result, the Met Police appealed to the FTT under section 57 of FOIA. Under section 50(6) of FOIA, the making of this appeal had the effect of staying the steps the ICO had ordered to be taken under the Decision Notice. Mr Greenwood was subsequently made the second respondent to the FTT appeal.

In the course of the FTT proceedings, on 3 November 2023, the Met Police emailed Mr Greenwood and informed him that it had decided to “release the Problem Profile with only minor redactions to safeguard personal details, specific offence investigations and material that would cause prejudice to policing”. A copy of the redacted Problem Profile was attached to the email. The email went on to express the hope that the appeal could be dealt with by way of consent, and continued:

“I am therefore refraining from serving today a statement explaining the application of the exemptions relating to the [redactions”], and the investigation correspondence referred to below.”

A few days later the ICO asked the Met Police to set out the exemptions it was relying on in relation to the redacted Problem Profile, which the Met Police did. On the face of it, the redactions to the Problem Profile went wider than those for personal data that the ICO had allowed for under section 40(2) of FOIA.

As result of the changed stance of the Met Police (to release the redacted Problem Profile as described in paragraph 10 above), on 18 December 2023 the ICO wrote to the Met Police and Mr Greenwood and said he had decided not to continue to defend his Decision Notice. He further said that he would be agreeable to the appeal being concluded by way of a consent order.

By way of a response, Mr Greenwood said he was not agreeable to the appeal being concluded by a consent order and he served a second witness in which he described what he considered to be the significance of the redactions made to the Problem Profile by the Met Police.

The Met Police then, on 2 January 2024, emailed the FTT as follows:

“Dear Tribunal

The Appellant no longer wishes to proceed with the Appeal of the Decision Notice, and the ICO no longer wishes to defend its Decision Notice.

We are therefore giving notice under Rule 17(1) that the Appeal is withdrawn. We are aware that the permission of the Tribunal is required under Rule 17(2), and to that end the parties are currently working on a consent order to present to the Tribunal.

In order to avoid the publicly funded bodies incurring unnecessary costs we do not intend taking any further steps in the proceedings, except in relation to the consent order.”

The hearing of the appeal to the FTT was due to take place on 16 January 2024.

A further version of the redacted Problem Profile was disclosed by the Met Police to Mr Greenwood on 3 January 2024.

The Met Police’s email of 2 January 2024 caused the solicitors for Mr Greenwood to write to the FTT, on 4 January 2024, setting out that Mr Greenwood did not agree “to the Appellant’s withdrawal”. Mr Greenwood said that submissions on the withdrawal issue would be provided by him to the FTT the next day, and he asked that those submissions be taken into account by the FTT before reaching its decision “on whether to consent to the Appellant’s notice of withdrawal”.

On 5 January 2024 a registrar of the FTT gave case management directions on the appeal. These stressed the difference between withdrawing an appeal under rule 17, which would bring the appeal proceeding to an end and the ICO’s Decision Notice in place, and a consent order which would dispose of the appeal on terms agreed by the parties. The FTT registrar suggested that the stance of the parties suggested a consent order was unlikely to be agreed, and she asked the Met Police to confirm by 1pm on 9 January 2024 whether it (still) sought to withdraw the appeal.

In response to these directions, the ICO said he did not intend to be represented at the oral hearing on 16 January 2024. The full response reads as follows:

“Dear Tribunal

On the 3 November 2023 the Appellant (the public authority in this appeal) released the Problem Profile with redactions.

The Commissioner has subsequently, and as explained to the parties, very carefully considered this appeal, the submissions and evidence, and raised queries with the Appellant on a closed basis which have been answered. The Commissioner has decided not to continue to defend his Decision Notice and explained this to the parties by email on 18 December 2023.

The Appellant’s solicitor suggested the appeal be concluded by way of a Consent Order and the Commissioner has confirmed to the parties that he would be agreeable to a Consent Order with the exact terms to be agreed. The Commissioner notes the Second Respondent has indicated he does not agree to the appeal being concluded by way of a Consent Order and proposes the matter proceed to a substantive hearing.

In a bid to reduce legal costs and to reduce the amount of judicial time incurred in considering this appeal, the Commissioner does not propose to file a skeleton argument or to be represented at the oral hearing on 16 January 2024. No discourtesy is intended, the Commissioner is merely attempting to preserve his and the Tribunal’s limited resources.”

The next day, 9 January 2024, the Met Police set out its response to the above directions, which reads:

“Dear Sirs

By email of 2 January the Appellant gave notice that the Appeal against the [Information Commissioner’s Decision Notice] was withdrawn. The Decision Notice stands.

As stated below, in line with the overriding objective the Appellant and the First Respondent negotiated and reached an agreement regarding the subject matter of the appeal; there are no extant issues to resolve between them.

Ideally the matter should be dealt with by way of a consent order, however this did not prove possible to achieve.

The Second Respondent wishes to maintain the hearing listed for 16 January. This is a matter for him and the Tribunal. For the Appellant and First Respondent this hearing has no function. As public authorities, both are anxious to avoid expending further resources and therefore will take no further steps in the proceedings.”

The hearing of the appeal on 16 January 2024 was vacated and adjourned by the FTT of its own motion on 11 January 2024. The FTT in those adjournment directions stated that:

“The Appellant’s request to withdraw the Appeal and the 2nd Respondent’s opposition to this shall be considered and decided by the Tribunal on the 16 January 2024 on the papers.”

The FTT reasoned that it was appropriate for the issue of withdrawal to be considered and concluded prior to the FTT and the parties being put to extra cost and expense in preparing for a full day hearing.

In a further email of 12 January 2024 to the FTT, in response to the FTT’s adjournment directions of 11 January 2024, the ICO set out the following:

“I write with reference to paragraph 3 of the reasons in the Case Management Directions of Judge Heald dated 11 January 2024, the Commissioner had not agreed to withdrawal (and it does not appear this is a requirement of the Tribunal Rules in any event), but to a Consent Order with the terms to be agreed. The terms had not been agreed between the parties.

It does not appear to the Commissioner that this appeal is amenable to a withdrawal. However it is noted the Tribunal will consider the Appellant’s application to withdraw its appeal and is considering this matter reflecting on the overriding objective, Rule 2.

Following careful consideration of the submissions and evidence provided during the appeal, the Commissioner decided to change his position and agrees with the [Met Police] in relation to the application of the exemptions to the withheld information and no longer proposes to defend his Decision Notice. The Commissioner has suggested the appeal could be concluded by way of a Consent Order, with the exact terms of the Consent Order to be agreed, but acknowledged that the Second Respondent is not agreeable to this and wishes the matter to proceed to a substantive hearing.

A Decision Notice can be substituted by two mechanisms, either a Consent Order or by a Tribunal Decision. The Commissioner would be agreeable to the Decision Notice being substituted with either a Consent Order or a Decision of the Tribunal which indicates that the appeal is allowed, and this Decision Notice be substituted with a new Decision that the Appellant was entitled to rely on the exemptions (setting out those exemptions) to refuse to provide the information requested and that the Commissioner does not require the Appellant to take any further steps in response to the request, with no order as to costs. If the Tribunal would be assisted by precise suggested wording from the Commissioner for the terms of a draft Consent Order then please let me know.

It may be that following the Appellant’s email which was sent today at 17:11 the Second Respondent may decide to change his position, but that of course is a matter for him.” (the underlining is mine and has been added for emphasis)

I will return to this later, but it would seem that the view of the ICO which I have underlined in the above email was based on what the email later addresses about substituting the ICO’s Decision Notice of 20 June 2023; a Decision Notice which otherwise would, on the face of it, remain intact if the appeal was withdrawn.