Jenna Corderoy v Information Commissioner & Anor [2025] UKFTT 682 (GRC)

[2025] UKFTT 00682 (GRC)Case Reference: EA/2022/0394
First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Venue Heard at: Field House, LondonHearing Heard on: 4 May 2023Date 12 June 2025
and subsequent written submissions
Before
JUDGE NEVILLEMEMBER C COSGRAVEMEMBER A CHAFER
Between
JENNA CORDEROYAppellantINFORMATION COMMISSIONERRespondentCOMMISSIONER OF POLICE FOR THE METROPOLISRespondentMs J Corderoy in person for AppellantWritten submissions only for Respondent for Second Respondent: Ms F Whitelaw KC, counselDecision: The appeal is dismissedREASONS
[1]Ms Corderoy is an investigative journalist for openDemocracy. On 28 October 2021, pursuant to the Freedom of Information Act 2000 ("FOIA"), she made the following request for information to the Metropolitan Police Service ("MPS"): I would like to request the following information:(1) For the calendar years 2016, 2017, 2018, 2019, 2020 and available data for 2021, please state how much the police force has spent on informants. Please provide a breakdown by year.(2) For the calendar years 2016, 2017, 2018, 2019, 2020 and available data for 2021, please state how much the police force has spent on informants in relation to Black Lives Matter. Please provide a breakdown by year.(3) For the calendar years 2016, 2017, 2018, 2019, 2020 and available data for 2021, please state how much the police force has spent in relation to environmental groups and environmental protests. Please provide a breakdown by year.[2]While the request refers to informants, it is agreed that this refers to a Covert Human Intelligence Source ("CHIS"). A CHIS is defined by section 26(8) of the Regulation of Investigatory Powers Act 2000: (8) For the purposes of this Part a person is a covert human intelligence source if—(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or(c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.[3]When a request under FOIA is made, section 1(1)(a) and (b) of FOIA places a duty on a public authority to confirm whether it holds the requested information and, if so, to disclose it. However, that duty is subject to a number of exemptions.[4]MPS responded to the request on 4 December 2021. As to question (1), MPS provided a link to data https://webarchive.nationalarchives.gov.uk/ukgwa/20210401103654/https://www.met.police.uk/SysSiteAssets/foi-media/metropolitan-police/disclosure_2019/september_2019/information-rights-unit---payments-offered-for-information that had already been published for the financial years 2015/16, 2016/17, 2017/18 and 2018/19. It further disclosed that the amounts MPS had paid in subsequent years were £1,064,570 in 2019/20 and £817,000 in 2020/21.[5]MPS decided to neither confirm nor deny ("NCND") whether it held the rest of the requested information. In doing so, it relied on the following statutory exemptions from the duty at section 1(1)(a):a. Section 23(5) - Information supplied by, or relating to, bodies dealing with security matters;b. Section 24(2) - National security;c. Section 30(3) - Investigations and proceedings conducted by public authorities;d. Section 31(3) - Law enforcement;e. Section 38(2) - Health and safety; andf. Section 40(5) - Personal information.[6]Sections 23(5) and 40(5) are absolute, class-based exemptions, meaning that if confirmation or denial would reveal the information they describe then they apply. The other exemptions are qualified, meaning that they will only support NCND if the public interest in maintaining them outweighs the public interest in confirming whether the information is held. This requires a balancing test to be undertaken.[7]The reasons given for MPS’s refusal were paraphrased as follows in Ms Whitelaw's skeleton argument:
"...where a CHIS is identified it can result in substantial physical harm or mental trauma... To confirm whether or not information is held ... would reveal whether or not the MPS has received intelligence on a specific subject area from Covert Human Intelligence Sources as well as confirming whether or not these CHIS have received monetary gain... Modern-day policing is intelligence-led and this is particularly pertinent with regard to both law enforcement and national security. ... The impact of providing information ... would provide those intent on committing criminal or terrorist acts with valuable information as to where police are targeting their investigations .. to confirm or deny ... [and] in this case has the potential to undermine the flow of information (intelligence) received from CHIS as well as members of the public into the Police Services .. undermining National Security."
[8]Dissatisfied, Ms Corderoy complained to the Commissioner. In a Decision Notice dated 1 November 2022, the Commissioner concluded that the exemptions at section 23(5) and 24(2) were engaged and that MPS was not required to confirm whether it held the requested information. Having reached that conclusion, the Commissioner did not consider it necessary to consider the other claimed exemptions.

The appeal

[9]Ms Corderoy appealed to the Tribunal against the Decision Notice. MPS was added as Second Respondent. At the hearing of the appeal, we heard submissions and evidence from Ms Corderoy. On behalf of MPS, we heard submissions from Ms Whitelaw and evidence from Detective Sergeant Gordon Barclay.[10]The Tribunal had previously made a rule 14(6) direction permitting MPS to rely on closed evidence from DS Barclay. It had been explained in MPS's application that while the closed evidence did not confirm whether or not the requested information was held, it was necessary to give evidence in support of the sections 23(5) and 24(2) exemptions in closed conditions as it included matters touching on national security. It was not possible to give any greater information to Ms Corderoy as to the contents of the evidence. Ms Corderoy did not object, and Judge Neville granted the direction. The fairness and necessity of a closed material procedure has been kept under careful review in accordance with the principles in Browning v Information Commissioner [2014] EWCA Civ 1050.[11]During the hearing the Tribunal went into closed session so that DS Barclay could speak to his closed witness statement and be asked questions by the Tribunal panel. Ms Corderoy was asked if there were questions she would like to be put or issues that ought to be addressed. After the closed session, a gist setting out so far as possible what had transpired was provided to Ms Corderoy so that she could make submissions accordingly. We remain satisfied that the procedure was fair.[12]At the conclusion of the hearing we raised two issues. First, it was unclear from the evidence how the bodies ‘S015 Counter Terrorism Command’, ‘Counter Terrorism Policing’, and ‘Counter Terrorism Policing Headquarters’ related to each other and to MPS. It was also unclear whether any funds spent by those bodies, and in particular S015, were included in the annual figures for MPS informant spending published online and provided in response to the request. Second, we expressed concern that the Commissioner and MPS had focused solely on the exemptions at sections 23(5) and 24(2), when it might be appropriate to decide the appeal by reference to other exemptions instead. At the end of the hearing we made directions permitting further written submissions and evidence on both points. We have taken these carefully into account.[13]The need for such consideration of further submissions and evidence, the need for some of it to be handled in appropriately secure conditions, and administrative, resourcing and other pressures upon this Tribunal have seriously delayed the resolution of this appeal. We apologise for the uncertainty that this will no doubt have caused.[14]As confirmed in Information Commissioner v Malnick [2018] UKUT 72 (AAC), on an appeal under section 58 of FOIA the Tribunal may review any finding of fact on which the notice in question was based. This means that the Tribunal exercises a full merits appellate jurisdiction, making any necessary findings of fact and then deciding for itself whether the provisions of FOIA have been correctly applied. But the Tribunal does not start with a blank sheet: the starting point is the Commissioner's decision, to which the Tribunal should give such weight as it thinks fit in the particular circumstances. The proceedings are inquisitorial, save that the Tribunal is entitled to respect the way in which the issues have been framed by the parties. When assessing the public interest balancing test for a qualified exemption, the Tribunal considers how matters stood at the date of MPS's response to the request.[15]The structure of these reasons is as follows. We first set out which claimed exemptions should be considered. The public interest arising under all three of those exemptions should be assessed in combination: Department for Business & Trade v Information Commissioner [2023] EWCA Civ 1378. In relation to each exemption we therefore set out whether it is engaged and the factors put forward by MPS as relevant to it. We then set out Ms Corderoy's case on the public interest overall, followed by our assessment.

Which exemptions?

[16]We must first decide whether to only address sections 23(5) and 24(2), as urged by two respondents, or consider other exemptions.[17]MPS argues that it would be wrong "to require a public authority to rely upon exemptions other than sections 23 and 24 where these exemptions are engaged", and wrong for the Commissioner or the Tribunal to "give preferential consideration" to other sections. MPS adds that principle 11 in Commissioner of Metropolitan Police v IC and Rosenbaum [2021] UKUT 5 (AAC) at [35] is that the scope of section 23 is not be construed or applied by reference to other sections, and relies on the statement in Lownie v IC and ors [2020] UKUT 32 (AAC) at [45] that information coming within the scope of a qualified exemption cannot of itself be an answer to the question of whether it is within the scope of a different absolute exemption. Further, MPS argues that the well-established principle that "national security is a matter of vital national importance in which the Tribunal should pause and reflect very carefully before overriding the sincerely held views of relevant public authorities" means that exemptions engaging national security considerations should be considered first.[18]We disagree with MPS's submissions. First, our approach does not "require" a public authority to do anything. The Tribunal (standing in the shoes of the Commissioner) is simply exercising its role as described in DEFRA v IC and Birkett [2011] UKUT 39 (AAC) at [52]: 52. To emphasise, the Commissioner does not have to consider every exemption, only those that merit consideration on the information presented. Nor does the Commissioner have to launch an investigation into every aspect of every exemption.[19]This passage was cited and approved in Malnick at [77]-[80] and we consider the Upper Tribunal's analysis to support an approach whereby the Commissioner, and on appeal the Tribunal, decides independently for itself which exemptions merit consideration. The relevant considerations must, we consider, include proportionality, the public interest and fairness:a. Proportionality: For the Tribunal, the importance of proportionality is found in the overriding objective to the Procedure Rules at r.2(2)(a), and the general principles collated in the Practice Direction from the Senior President of Tribunals: Reasons for decisions. If in a hypothetical case a public authority claims multiple exemptions, the Tribunal may consider that one of them is so readily decided in its favour that it would be wholly disproportionate to expend administrative and judicial resource in reaching a decision (that, for example, raises relatively complicated questions of fact or evidence) on the second exemption where this is immaterial to the overall outcome. This is how the Commissioner commonly deals with requests. The public authority may rely on any exemption it wishes - see Birkett v DEFRA [2011] EWCA Civ 1606 at [28] - but nothing in the authorities entitles it to a decision on only those exemptions it specifies. The same applies to the Commissioner's decision; he is responsible for expending the resources available to him in a proportionate way. His statutory obligation under section 50(1) of FOIA is to decide whether the public authority dealt with the request in accordance with Part I. Neither the requester nor the public authority is entitled to direct how he does so.b. Public interest: The public interest recognises that the benefit to the parties, the wider public or the operation of FOIA from deciding an issue may mean that doing so is justified notwithstanding that it may be strictly immaterial to the outcome of that particular appeal. In FCDO v IC and ors [2021] UKUT 248 at [62] (an authority to which we shall refer as Williams) an example is given of a public authority that specifies an exemption "which is not applicable on the current state of the law but where the authority wishes to overturn that orthodoxy in the current case and for the future." We respectfully agree that this may stand as a good reason, but whether it does so in a particular case is for the Commissioner (or the Tribunal on appeal) to decide. For reasons set out fully below, and that we find apply in this appeal, the public interest may also point away from deciding an exemption where another is engaged. The views of the public authority in relation to a particular exemption may deserve particular respect: for example, see Williams at [31] and APPGER v IC & Ministry of Defence [2011] UKUT 153 (AAC) at [56]. We do consider that this principle extends to whether an exemption should be the subject of a decision.c. Fairness: Finally, fairness demands that the parties have the opportunity to make submissions and (if necessary) adduce evidence, which must then be taken into account.[20]This appeal should be decided by reference to sections 30(3), 31(3) and 38(2). For the reasons we shall give, they provide a ready answer to the appeal: MPS was entitled to issue a NCND response to the request. We can also, in relation to those exemptions, achieve greater transparency in our reasoning than if we were to decide (in either direction) the exemptions at sections 23(5) and 24(2). Plainly there is a public interest in the appellant, other public authorities facing similar FOIA requests and, as a matter of open justice, members of the public knowing why the Tribunal has reached its overall decision.[21]In reaching that decision on the exemptions to consider, we decline to accept the respondents' submissions to the contrary. We disagree with the respondents that our approach would "give preferential treatment to other exemptions", as if a principle or precedent is being established. We are not concerned with identifying any inherent hierarchy of exemptions, but which issues should, in this appeal, be decided. This includes consideration of the case-specific context in which an exemption may arise.[22]To assess MPS's submissions as to why we should consider sections 23(5) and 24(2) on their merits, and to illustrate our principled analysis above by reference to the present appeal, we briefly summarise the substantive submissions made in relation to section 23(5). In doing so, we emphasise that we have not lost sight of section 24.[23]We have not been told whether the requested information is held at all, much less, if it is held, whether it would be exempt from disclosure under section 23(1), and accept in this appeal that this accords with Savic v IC and ors [2016] UKUT 535 at [47]-[48]. The way in which MPS has responded to this appeal has therefore deliberately been founded solely on whether disclosing whether the type of requested information is held would involve the disclosure of any information which was directly or indirectly supplied by, or relates to, a section 23(3) body. It has framed its arguments by reference to any organisation, or description of organisation, rather than those that are the subject of the present request; a central plank of its arguments is that consideration of a NCND response should have regard to the value of consistency. We accept this as a matter of principle: confirmation in response to a particular request might not directly reveal information which was directly or indirectly supplied by, or relates to, a section 23(3) body, but might do so when viewed alongside other related requests. The purpose and integrity of NCND responses can depend on their consistent adoption in response to different requests.[24]DS Barclay gives the following evidence in his witness statement: 11. Generally, law enforcement agencies split the management of CHIS into two (2) main strands:a. Crime and General Policingb. Counter Terrorism For completeness, some agencies may have separate strands for structural, policing and management reasons. Crime and General Policing CHIS operate under the prevention and detection of crime and prevention of disorder necessity provision, thus their activity must provide intelligence that focusses on these functions. 12. It is a well-established principle that protest is not unlawful and that in order to be defined as “disorder” the activity must constitute or include criminal conduct such as offences under the Public Order Act 1986. 13. Counter Terrorism CHIS operate under the protection of the national security necessity provisions, which has a much wider focus and involves working closely with several partner agencies tasked with the same remit. These agencies are referred to as section 23 bodies, viz they are identified within section 23(3) of the Freedom of Information Act 2000. 14. The remit of Counter Terrorism is to combat threats to national security and to protect democracy from espionage, subversion and political extremism. 15. Up until September 2020 Counter Terrorism Policing was responsible for the management of any CHIS activity providing intelligence on public disorder. In September 2020, responsibility for the management of CHIS in this arena were passed into Crime and General Policing. Thus, a period of the data requested by the Claimant in this case, should it even exist, would be managed by Counter Terrorism Policing operating under the national security necessity provisions. 16. All strands of the CHIS management structure within the Metropolitan Police Service work closely together (internally) and also work closely with a large number of other external agencies, including the section 23 bodies. Through this activity they share assets, intelligence and tactics, and de-conflict their activities. It is also a reality of CHIS management that there no “bright line” between each of these strands with CHIS easily operating across more than one strand and also with more than one section 23 body. For example, a CHIS that reports on criminal activity in any part of London, is just as capable of supplying intelligence in relation to counter terrorism and protecting national security.[25]DS Barclay stated in cross-examination that intelligence relevant to national security might conceivably be received from any CHIS used by any police investigation, and this is deployed by MPS in support of its case that sections 23(5) and 24(2) should be the exemptions considered. We can see how the investigation of non-national security related crime may occasionally yield intelligence that does relate to a security body, in the sense that it is passed to that security body and its involvement with that CHIS may be triggered. From then on, MPS's case is that the relationship between MPS, the security body and the CHIS - as described in the open gist of the closed evidence may be such that in an individual case disclosure of the amount spent could 'relate to' a security body and fall within section 23(1). MPS argues reliance on section 23(1) in those circumstances would then reveal the involvement of the section 23(3) body; this means that a consistent approach of NCND is required, and would meet the 'relates to' limb of section 23(5). That revelatory consequence, says MPS, cannot be cured by confirming that the information is held yet declining to disclose information pursuant to sections 23(1) and 24(1) in the alternative, as that still reveals that one of the two must apply. This would be especially revelatory if the subject organisation of the request would usually only be associated with general crime and policing (for example, in relation to drug dealing rather than terrorism). NCND under section 23(5) is, argues MPS, therefore necessary as a consistent response to requests concerning payments in relation to any named organisation.[26]MPS's case is certainly logical. Our concern is that, despite the issue being explored in submissions, MPS was unable to distinguish the use of CHIS in the above respects from any other form of investigative technique. We accept that use of a CHIS is a serious step that would not be taken lightly or in response to minor one-off offences, as shown by the evidence and the surrounding legal regime as set out in the Regulatory of Investigatory Powers Act 2000. It is also not without risks to those involved, as we shall go on to describe. We are therefore willing to accept the general proposition that CHIS are likely to be reserved to more serious types of criminality, and that more serious types of criminality are more likely to have, or subsequently develop, a relationship to one or more section 23(3) bodies. But we have been given no evidence as to the extent to which this is so, nor any evidence that it more regularly does so than other investigative techniques deployed in serious crime, for example, in the fight against human trafficking and modern slavery, serious organised crime, or fraud or money laundering. MPS has provided no evidence to justify drawing a quantitative or qualitative distinction between CHIS and other high level investigative tools at a police force's disposal. In short, there is neither evidence, nor even an unequivocal assertion, that use of CHIS is more likely in a particular case to be related to a section 23(3) body or raise issues of national security than other high level investigative methods used in British policing.[27]In the open gist of the closed hearing, MPS is recorded as arguing that "the issue for the Tribunal is the potential consequence of confirming or denying whether information is held". This calls to mind the observation in Williams at [70]: 70. We found this a singularly unattractive argument for a number of reasons. First, it is by no means obvious that a public authority can rely on the NCND provisions where the mischief is not what would be revealed by confirmation or denial that the information is held, but rather the potential harm that could result from disclosure of the precise national security exemption relied upon. Second, reliance on the NCND provisions in the alternative would result in requesters being provided with even less information about the fate of their requests – they would not even know whether relevant information of any sort was held. As the Upper Tribunal observed in Corderoy, “no doubt because of the expected and confirmed involvement of the security bodies a ‘neither confirm nor deny approach’ was correctly not advanced by the respondents under section 23” (at paragraph 60). Third, such a response would in some cases result in patent absurdity, e.g. where the very fact that material information was held was on the public record (for example, where the existence of files containing national security-related information has been revealed by TNA index searches). To that extent reliance on NCND instead of sections 23 and 24 in the alternative would undermine rather than further the legislative purpose of FOIA. More generally, the requester’s right under section 1(1)(a) of FOIA to be told if information is held is respected by specification of sections 23 and 24 in the alternative, whereas both section 1(1) rights would be rendered nugatory by using NCND.[28]Asked whether its case on the 'relates to' limb would apply equally to all such requests to other regional police forces, all of which likely have far less involvement with policing that relates to a section 23 body or national security than even the MPS's Crime & General Policing, MPS was willing to pin its colours to the mast and confirm that it must.[29]So, to summarise, MPS must be taken as arguing that because investigation of serious crime by any police force may sometimes, but to an undisclosed amount, engage the interest of, or be done in concert with, a section 23(3) body, anything other than an NCND response to request for spending in relation to individual organisations falls within section 23(5). This accords with the way in which the Information Commissioner expressed the issue in the BLM Decision Notice:23. […] If the information requested is within what could be described as the ambit of security bodies’ operations, section 23(5) is likely to apply. […]24. The MPS has advised that payments to CHIS would be within areas of work specified in section 23. The Commissioner agrees that, on the balance of probabilities, information about this subject matter, if held, could be related to one or more bodies identified in section 23(3).[30]We reach no finding on whether MPS and the Commissioner are right about that, because we are endeavouring to explain why in this case section 23(5) should be the last port of call, rather than the first. It is enough to say that we would be reluctant to conclude that 'relates to' at section 23(5) can have been intended by Parliament to cast such a wide net over 'ordinary' policing as MPS contends, and the word 'would' used by the Commissioner in the first sentence of para 24 likely puts the matter too highly. Vast amounts of polite work may, from time to time, engage the attention and participation of a section 23(5) body; according to DS Barclay “any” CHIS might do so, but they are not (as set out above) asserted to be in any way unique in that respect. Yet Parliament has chosen to create separate exemptions concerning investigations and law enforcement, and to make them qualified by the public interest. The same is true of other areas of public administration covered by Part II of FOIA in which section 23(3) bodies will inevitably sometimes be involved, not least those covering defence and international relations. Neither the Ministry of Defence nor the Foreign, Commonwealth & Development Office has ever, to our knowledge, sought to invoke NCND under section 23(5) to include in its scope the obviously large proportions of their work that could conceivably from time to time include engagement with a section 23(3) body. The observations in Williams at [70] are apt.[31]The present request relates to investigations into criminal offences and general law enforcement and, taking into account what we say above and all the circumstances of the case into account, it is most sensibly first approached under the exemptions entitled "Investigations and proceedings conducted by public authorities" at section 30 and "Law enforcement" at section 31. We have also considered it appropriate, given MPS's submissions on the risks of disclosure to the safety of a CHIS, to additionally consider "Health and safety" at section 38 to be engaged and merit express consideration. This causes no unfairness. All three exemptions are relied upon by MPS in the alternative, the opportunity has been given to all parties to make submissions on them, and there is no inherent procedural unfairness in a court or tribunal deciding to take an alternative case as the primary basis upon which it makes its decision.[32]The authorities cited by the respondents as supporting their arguments do not do so. Those that concern the strength of Parliamentary intention that FOIA not be used to gain information about section 23(3) bodies, such as those collated in Rosenbaum at [35], tell the Tribunal how to apply section 23, but not when to apply it. Nor do they provide any express support for applying section 23 and section 24 before other exemptions. We cannot see how treating them as an alternative undermines the intention of Parliament. If first considering other exemptions does not answer an issue in the public authority's favour then that leaves section 23 in reserve, its well-established power to give effect to the exclusionary principle undiminished. If another exemption does determine a request in favour of the public authority, then the legislative scheme of thematic areas of exemption is upheld and applied, and in many cases more purposively and transparently than would be possible than if applying section 23. A request made in relation to Investigations and Law Enforcement will have been decided by reference to the exemptions that Parliament has specifically designated as relating to those topics.[33]The approach is intensely case-sensitive, and as a final example of how the respondents' fears that we have generally demoted section 23 and section 24 are unjustified, consider if the present request had, hypothetically, been expressly related to CHIS managed by S015 instead of Crime & General Policing. The nature of S015 is described as follows in Rosenbaum at [5] (citing the FtT's decision in that appeal at [4]): 4. In 2006 the functions of Special Branch were merged with the Anti-Terrorist Branch into a unit called the Counter Terrorism Command ('CTC'), also known as S015. The tribunal read a statement from Detective Chief Superintendent Kevin Southworth, in charge of the CTC. The CTC's remit includes countering terrorism but also to combat threats to national security and to protect democracy from, for example, espionage, subversion, political extremism etc. This national security remit is shared with a number of s 23 bodies. The CTC's most significant intelligence partner is the Security Service, and there is significant liaison between the CTC and the Security Service on a daily basis. Section 23 bodies are routinely involved in most aspects of CTC work and any information gathered by CTC may be exchanged with or originate from s 23 bodies.[34]A request such as the present but made by reference to S015 alone would likely be more suited to first applying section 23(5) and/or section 24(2), as SO15's operations are inherently such that a significant number of requests would be information that, if held, would engage section 23(1) or section 24(1); as a class, any information held would therefore be more likely to engage section 23(5) or section 24(2). The same cannot be said of British policing in general, as acceptance of MPS's case self-avowedly demands.

Section 30 - Investigations and proceedings conducted by public authorities

[35]Section 30 provides as follows: 30 Investigations and proceedings conducted by public authorities.(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.(2) Information held by a public authority is exempt information if— (a) it was obtained or recorded by the authority for the purposes of its functions relating to— (i) investigations falling within subsection (1)(a) or (b), (ii) criminal proceedings which the authority has power to conduct, (iii) investigations (other than investigations falling within subsection (1)(a) or (b)) which are conducted by the authority for any of the purposes specified in section 31(2) and either by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under any enactment, or (iv) civil proceedings which are brought by or on behalf of the authority and arise out of such investigations, and (b) it relates to the obtaining of information from confidential sources.(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).(4) In relation to the institution or conduct of criminal proceedings or the power to conduct them, references in subsection (1)(b) or (c) and subsection (2)(a) to the public authority include references— (a) to any officer of the authority, (b) in the case of a government department other than a Northern Ireland department, to the Minister of the Crown in charge of the department, and (c) in the case of a Northern Ireland department, to the Northern Ireland Minister in charge of the department.[36]Inevitably there is overlap between this exemption and that at section 31, which concerns Law Enforcement. A useful distinction, in the context of NCND, is set out in the Commissioner's guidance on the present exemption: You can also use both exemptions to refuse to confirm or deny whether you hold the same information, if you can demonstrate that:• The information (if you held it) would be held for the purposes of a criminal investigation; and• Confirming or denying that you held that information could make it more difficult to enforce the law.[37]In this appeal, many of MPS's arguments are equally relevant to both the consequences of disclosure on current work with CHIS, which we consider to fall within section 30, and the consequences for the effectiveness of its future police work, which we consider to fall within section 31. We have therefore not spent undue time in strictly separating them between the two, other than assuring ourselves that each exemption is individually engaged.[38]MPS's case on section 31 has narrowed somewhat since the time of its response, and we can take its argument as being that the use of CHIS engages section 30(2) as they are confidential sources. We agree. The confidential nature of a CHIS is obvious and requires no further elaboration. The Commissioner's guidance on section 30 states that: 43. The exemption will not only cover the actual information obtained from confidential sources but also any procedures, including administrative processes, relating to confidential sources. For example, it would capture protocols for handling such sources, reports on their use, and records of payments made to, or appointments made with confidential sources.[39]The same issue was considered by this Tribunal in Cmsr of Police v Information Commissioner, EA/2010/0006, to which we shall refer as the Croydon appeal. This appeal concerned a request to MPS for the total spent by "Croydon Police" - actually part of MPS - on CHIS in each of the previous three years. Addressing section 30(2), the Tribunal held as follows: 66. It is common ground between the parties that this exemption is engaged in this case. We agree. Although it could be argued that the information was not recorded for the purpose of investigations but for accounting purposes, we agree with the Commissioner that it is appropriate to consider the purpose for which the information was initially recorded rather than the purpose for which it was collated into its present form. The collated figures held for accounting purposes would not have existed had an original record not been made of payments to CHIS for the purpose of investigations. The disputed information therefore falls within section 30(2)(a). The disputed information clearly relates to the obtaining of information from confidential sources and therefore falls within section 30(2)(b).[40]We agree with both the guidance and the decision in Croydon, and consider the requested information (if held) to relate to the obtaining of information from confidential sources within the meaning of section 30(2)(b). The exemption is therefore engaged and the information is therefore exempt from the duty to confirm or deny under section 30(3), subject to the public interest balancing test. Ms Corderoy made no specific representation to the contrary.

Matters put forward as supporting exclusion of the duty to confirm or deny

[41]The public interest factors put forward by MPS can be drawn from its response to the request, the internal review, its r.23 response to the appeal, its post-hearing submissions and the evidence of DS Barclay. We have taken it all into account, and the principal points put forward as supporting NCND are these:a. The Covert Human Intelligence Sources Code of Practice 2018 issued under section 71(4) of RIPA requires MPS to keep records in a way that preserves confidentiality and prevents disclosure of the identity of a CHIS and the information they provide. NCND can properly be seen as such a measure.b. Inconsistent use of NCND across requests that concern different groups could operate to reveal that information is actually held in relation to one of them. The same would hold true for requests across the UK and over time, showing regional variations and changing police investigative priorities: see para 23 above. Ms Corderoy has herself made numerous requests to other forces.c. Revealing that information, and that CHIS are used, would show that MPS considered it appropriate and justified, so in turn disclose its policing priorities and strategy in general and in relation to that specified group and others of the same type in particular. This could enable such groups to operate in a way that minimised their present risk from any CHIS, for example by reducing the circle of people to whom key intelligence is revealed. Given the resources and work associated with use of CHIS, this could also reveal to unrelated persons or groups that they are less likely to be a focus of current investigation.d. Revealing that information was held as to a particular group or class of groups could cause action to be taken against suspected CHIS. DS Barclay's concern is that this might result from even a small amount of information that loosely connected a group with use of CHIS, because an individual might already face suspicion and knowledge of CHIS expenditure might be enough to turn that suspicion into action. It might also prompt further investigation by the group, such as identifying any unexplained funds received or held by the suspected CHIS. Ensuring that receipt of funds does not implicate a CHIS is a key operational consideration. If someone is identified as a CHIS, or even if they are misidentified as a CHIS, then they could face serious consequences including violence. There would likely be an adverse effect on any investigation that their use supported.e. Increased fear of identification by a CHIS would affect recruitment and retention, and thereby the effectiveness of use of CHIS overall. Recruitment and retention, as well as the amount and quality of engagement with a CHIS, depended on a relationship of absolute trust and confidence between the CHIS and their police contact.f. The above risks are increased because, as acknowledged in open evidence in this appeal and by the Tribunal in Croydon, payment to CHIS is usually by results. Knowledge of MPS expenditure reveals not only that use of a CHIS has been attempted, but that it may well have been successful.g. As was established by the authorities in relation to other exemptions, official confirmation of information is more apt to cause prejudice than that already put in the public domain by journalistic or third party disclosures.h. Underlying all the above is a vital importance in CHIS as an investigative tool.i. An appropriate level of transparency had already been achieved by publication of MPS's total spend on CHIS. In relation to this point, we are grateful to DS Barclay for his post-hearing witness statement. He confirms that the published spend figures includes the overall expenditure by MPS from the general funding provided to London policing by the Mayor's Office for Policing and Crime. SO15, while a part of the MPS and under the direction and control of the Commissioner is part of the Counter Terrorism Policing network. This consists of the CTPHQ, hosted by MPS, and nine regional Counter Terrorism (Intelligence) Units hosted by other police forces. While the Counter Terrorism Policing network operates its own command structure, the MPS Commissioner being responsible for the London region, it has no legal personality and its activities are done in the name of the relevant police force. It is funded by a Counter Terrorism grant from the Home Office, and not from the funds MPS receives for policing London. While use of a CHIS is not a bright line, MPS puts this organisational structure as justifying the exclusion from its overall spending figures that were funded by the CT grant.

Section 31 - Law enforcement

[42]Section 31 provides as follows: 31 Law enforcement.(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, (d) the assessment or collection of any tax or duty or of any imposition of a similar nature, (e) the operation of the immigration controls, (f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained, (g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2), (h) any civil proceedings which are brought by or on behalf of a public authority and arise out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under an enactment, or (i) any inquiry held under the [F1Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016] to the extent that the inquiry arises out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under an enactment.(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, (c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise, (d) the purpose of ascertaining a person’s fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on, (e) the purpose of ascertaining the cause of an accident, (f) the purpose of protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration, (g) the purpose of protecting the property of charities from loss or misapplication, (h) the purpose of recovering the property of charities, (i) the purpose of securing the health, safety and welfare of persons at work, and (j) the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work.(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).[43]The points arising above in relation to current investigations can be equally applied to MPS's future ability to undertake its law enforcement functions. We are quite satisfied that the prejudice identified in section 30 is engaged.

Matters put forward as supporting exclusion of the duty to confirm or deny

[44]To further support the matters raised at section 31, MPS points to its "duty of care to the community at large and public safety" as being of paramount importance.[45]MPS also points towards what is said above concerning the possibility of a pattern of requests across different forces having an overall revelatory consequence if NCND is not maintained. This factor does, we consider, more sensibly fall within section 31 as affecting the future effectiveness of CHIS across different police forces than it does section 30.[46]Beyond that, we need not set out MPS's submissions further.

Section 38 - Health & Safety

[47]This provides as follows: 38 Health and safety.(1) Information is exempt information if its disclosure under this Act would, or would be likely to— (a) endanger the physical or mental health of any individual, or (b) endanger the safety of any individual.(2) 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, have either of the effects mentioned in subsection (1).[48]As stated already, the Code of Practice for use of CHIS requires records to be kept in a way that prevents disclosure of their identity. The adverse consequences of disclosure can in some cases, we have no doubt, endanger that individual's physical health or safety. Within the MPS, the identity of a CHIS is closely guarded and shared on a strictly 'need to know' basis. The phrase "would be likely to" in an exemption does not require a greater than 50% chance that the harm would eventuate. It instead recognises that a small chance of very serious consequences may be sufficient.[49]MPS's case relies on the concept of mosaic, or jigsaw, identification. We consider that the possibility of identifying wider facts from various small pieces of information is not to be underestimated, and that this cannot be readily determined from a single piece. A precautionary approach is legitimate. We nonetheless agree with Ms Corderoy that some scrutiny is required, and contribution to jigsaw identification not simply assumed. We agree with the remarks of Hayden J in A Local Authority v The Mother [2020] EWHC 1162 (Fam): 18. The potential for jigsaw identification by which is meant diverse pieces of information in the public domain, which then placed together reveal the identity of an individual, can sometimes be too loosely asserted and the risk overstated. As was discussed in exchanges with counsel, jigsaws come with varying complexities. A 500-piece puzzle of Schloss Neuschwanstein is a very different proposition to a 12-piece puzzle of Peppa Pig. By this I mean that whilst some information in the public domain may be pieced together by those determined to do so, the risk may be relatively remote.[50]We find that the exemption is engaged on the "would be likely to" basis. In relation to a single group in particular, confirmation or denial would reveal whether money has been paid to CHIS in that group. We have no reason to think that anyone in BLM – the individual group in the present request – would ever harm a suspected CHIS; there is nothing before us to suggest that BLM is engaged in anything other than entirely legitimate and lawful protest. Yet confirmation or denial in the case of lawful protest groups unlikely to be associated with criminality would undermine the effect of NCND in response to other requests made about, and perhaps even on behalf of, organisations whose objectives are criminal in nature.[51]We recognise that the other request, concerning groups connected to the environment, is less likely to lead to these adverse consequences. There are numerous such groups and the number of those involved is significant. Yet the need for consistency already described establishes that this admittedly smaller risk of combining multiple requests yields a significant piece of the puzzle. It is more like a piece of the former puzzle described by Hayden J, but the adverse consequences were anyone to identify the Schloss in question are sufficiently grave to justify treating this exemption as engaged.[52]It is unnecessary for us to provide further detail on the matters that MPS put forward as supporting the public interest in excluding the duty to confirm or deny.

Matters put forward in support of disclosing whether MPS holds the requested information

[53]We now gather the public interest factors that weigh against those identified above in relation to each exemption.[54]Ms Corderoy is a reporter for openDemocracy, which describes itself as producing "high-quality journalism which challenges power, inspires change and builds leadership among groups underrepresented in the media." She has reported on the monitoring of environmental protests and police and political responses to them, and her colleagues have published stories in relation to the monitoring of members of BLM.[55]Ms Corderoy has referred to several pieces of evidence as contributing to the public interest in support of MPS confirming whether it holds the requested information, and disclosing it if it does. While some postdate the date of MPS's response to the request, we have taken account of them insofar they evidence a state of affairs that would have been relevant at the response date. They include the following (including, where appropriate, our analysis): a. Civicus, a global alliance of civil society groups, publishes a global index of civic freedoms: the Civicus MONITOR. In 2023 it downgraded the UK from 'narrowed' to 'obstructed' https://monitor.civicus.org/country-rating-changes/uk/ :
“The downgrade reflects the worrying trends we are seeing in restrictions across civil society that are threatening our democracy. The government should be setting a positive example to countries that have clamped down on civic space. The UK is becoming increasingly authoritarian and is among concerning company in the CIVICUS Monitor ratings as restrictive laws and dangerous rhetoric are creating a hostile environment towards civil society in the UK. Decision makers across all political parties should be alarmed and make it a priority to protect our rights and freedoms, said Stephanie Draper, CEO of Bond. The government proposed two pieces of legislation which give police further powers to restrict protests. The Police, Crime, Sentencing and Courts (PCSC) Act gives police unprecedented power to restrict protests on the basis of noise, criminalises one-person protests, and imposes further restrictions on both processions and static assemblies. The Public Order Bill, which is currently making its way through Parliament, includes concerning measures such as Serious Disruption Prevention Orders that could ban named individuals from participating in certain protests and introduces protest-related stop and search powers.” b. In 2021 the Guardian reported https://www.theguardian.com/uk-news/2021/oct/25/recording-reveals-police-efforts-to-recruit-blm-activist-as-informant that a police unit in Wales tried to recruit a BLM activist to be an informant, the article including the following: “The disclosures are likely to heighten longstanding criticism that police in the UK are carrying out unjustified surveillance of political groups that are engaged in democratic and lawful protests. A judge-led public inquiry is examining the activities of undercover police officers who spied on more than 1,000 political groups over more than four decades. The government was forced to set up the inquiry after a series of revelations about the misconduct of the undercover officers. These included the monitoring of black justice groups, including several run by grieving families whose relatives were killed by police. As well as deploying undercover officers, police have for years run a network of informants within protest groups. Rarely heard about, they are members of political groups who are persuaded by police to covertly supply them with information about protests, often for cash. Katt-Hobbs, of the Network for Police Monitoring, a civil liberties group that has investigated the policing of Black Lives Matter protests, said: "Given the police response to the growing power of the BLM movement, it's likely that many more people have faced this kind of intimidation and this may be just [the] tip of the iceberg.” c. Ms Corderoy cites reports of other claimed examples of recruitment of environmental activists as CHIS. In light of those, when Police Scotland disclosed in 2016 that it had spent nearly £400,000 over two years on CHIS, Friends of the Earth Scotland commented: "Terrorists and organised criminals are one thing but spying on legitimate protest groups is an affront to democracy. Ordinary people come together to oppose fracking, to show their concern about air pollution or to call on pension funds to get out of fossil fuels. They shouldn't have to worry that the police might be bribing members of their group for information. Police Scotland need to explain themselves if they have been paying informants in campaign and protest groups." d. In July 2021, the Guardian reported https://www.theguardian.com/uk-news/2021/jul/24/met-police-recruit-ex-officer-spy-climate-change-activists-extinction-rebellion on a claim by a former police officer, now a climate change campaigner, that MPS had recruited him to spy on Extinction Rebellion. e. MPS has released the total amount spent on CHIS between 2015/16 and 2020/21, being £18 million. Ms Corderoy's report of that disclosure for openDemocracy references the well-known case of Kate Wilson, who campaigned mainly on environmental issues and from 2003 to 2005 was deceived into a sexual relationship by Mark Kennedy, an undercover police officer. We take note of the corresponding decision of the Investigatory Powers Tribunal, Wilson v Cmsr of the Police of the Metropolis [2021] UKIPTrib IPT_11_167_H, which postdates MPS's response to the present request for information, but establishes that by September 2021 MPS had made significant concessions, including of acquiescence by the officer's superior and breaches of Articles 3, 8 and 10 of the European Convention on Human Rights. We should say that there has been substantial organisational change in response to that controversy, and no one suggests that any similar scandal is ongoing or that the present request will uncover it. Rather, we consider that past abuses inform the potential for current abuses of covert intelligence-gathering methods and that this supports the need for transparency and accountability. f. On 1 March 2021, HM Inspectorate of Constabulary published its report Getting the balance right? An inspection of how effectively the police deal with protests. It confirms, if any such confirmation were needed, that use of CHIS in relation to lawful protest or activism will never be legal, necessary or proportionate. It describes how: "Until September 2020, CTP [Counter-Terrorism Policing] retained primary responsibility for obtaining protest-related intelligence from CHIS. Responsibilities for coordination, funding and tasking have now been transferred to individual police forces.”
The report identifies concerns over the effectiveness of this transfer of responsibilities. We agree that this raises the public interest in proper scrutiny.[56]Ms Corderoy argues that attempts to recruit CHIS, such as the claimed recruitment of a member of BLM, and the possible presence of CHIS in such groups, have a chilling effect on the ability and willingness of individuals to participate in lawful protest and activism. This interferes with their rights to assembly and association under Article 11 ECHR, and led to the BLM group in Cardiff closing.[57]We should reiterate that MPS does not necessarily accept the substance of the various claims described above and, for example, has never commented on the alleged recruitment of an Extinction Rebellion member. Nor, so far as we can see, has any UK police force ever made such comment outside formal legal proceedings. We should likewise not be taken as making any findings of fact in support of the various claims that have been put forward. Ms Corderoy is nonetheless entitled to rely upon such reports existing, and claims having been made, to support her case for accountability and transparency in the use of CHIS.

Consideration

[58]We consider that the public interest factors asserted by Ms Corderoy do bear great weight, and reject MPS's arguments to the contrary.[59]MPS argued that simply confirming or denying whether the information was held would reveal little of probative interest as to the concerns raised by Ms Corderoy. We disagree. As was held by this Tribunal in Rights & Security International v Information Commissioner [2024] UKFTT 296, arguments concerning the 'mosaic' or 'jigsaw' effect of seemingly inconsequential disclosure, and respect for institutional expertise and competence, can also operate in favour of a requester. Ms Corderoy is an experienced journalist in this field, and in our view she is well placed to consider that the requested information could provide useful information in support of her journalistic work.[60]It cannot be doubted that undercover officers have abused their position in the past, as shown by the controversy surrounding Mark Kennedy and other officers, and that there is a public interest in ensuring that CHIS do not do so in future. While lessons have no doubt been learned, and changes made, legitimate concern is apt to be heightened by previous failure. The chilling effect on participation asserted by Ms Corderoy is entirely plausible; if CHIS are used wrongly or disproportionately then this risks dissuading individuals from participating in lawful protest, demonstration and activism. This not only engages Article 11 as asserted by Ms Corderoy, but also Article 10. Quite apart from human rights arguments, protest and activism are the means by which many civil liberties we now take for granted in this country were won. We also accept Ms Corderoy's point that if, in the present request, MPS were to deny holding such information, this would provide great reassurance to the public that CHIS are not being used to target legitimate environmental and racial justice protest. This would in turn increase public confidence in the use of CHIS, and perhaps in turn increase its effectiveness.[61]Whether the claims in the reports cited by Ms Corderoy are well founded or not, we find that the reporting of such claims establishes a heightened and legitimate public interest in transparency and accountability when this particular power is used. The suggestion by MPS in submissions that Ms Corderoy has conflated the public interest with 'matters in which the public are interested' was wholly misconceived and does her journalism a disservice.[62]Nonetheless, we also accept MPS's case on the various matters put forward as supporting the public interest in excluding the duty to confirm or deny. Ms Corderoy essentially submits that the risk of identification from the information she requests is not so high as MPS put forward. We have, under section 38 above, set out why we have reached the opposite conclusion. These requests cannot be viewed in isolation, but as forming part of a pattern of past and future requests. While the likelihood is still admittedly low, the stakes under all exemptions could hardly be higher. CHIS are a vital investigative tool across a range of policing functions, and anything other than a NCND response to the present request has a real chance of undermining their effectiveness.[63]We take a step back and consider the balance of factors overall, without repeating our previous analysis. We have had regard to all the detailed arguments and evidence deployed on all sides, and mean no disrespect by only having summarised those which we found most salient. We have, in essence, accepted each party's case on their respective public interest factors, and broadly rejected each’s criticism of the other’s. Having done so, we find that the public interest in maintaining the exclusion of the duty to confirm or deny, as already set out, outweighs the public interest to the contrary.[64]We therefore conclude that the duty to confirm or deny is excluded by each of the three listed exemptions. There is no need to consider the further exemptions cited by MPS or considered by the Commissioner. MPS's NCND response to the request was in accordance with Part I of FOIA and the Commissioner's decision to that effect was in accordance with the law, albeit for different reasons than he gave.[65]Aside from recording that none of DS Barclay’s open evidence was undermined when subjected to detailed challenge on the more precise details of the practical and financial operation of CHIS in closed session, we have been able to reach this decision without regard to any closed evidence or submissions. Approaching the appeal according to the exemptions above has enabled our reasoning to be entirely open, and is set out in its entirety above. Signed Date: UTJ J Neville 10 June 2025 (sitting as a Judge of the First-tier Tribunal)

Cited in 1 later judgment