Gabriel Kanter-Webber v The Information Commissioner & Anor [2026] UKFTT 700 (GRC)

[2026] UKFTT 00700 (GRC)Case Reference: EA/2023/0457
First-tier Tribunal
(General Regulatory Chamber)
Date 19 May 2026
Information Rights
Decided without an oral hearing (on the papers)
Determined on: 6 January 2026
Before
JUDGE KIAIMEMBER SAUNDERSMEMBER DR MANN
Between
gabriel kanter-webberAppellantTHE INFORMATION COMMISSIONERRespondentTHE CHIEF CONSTABLE OFRespondentGREATER MANCHESTER POLICERespondentDecision: The appeal is refused.REASONS

Introduction

[1]This is an appeal brought pursuant to section 57 of the Freedom of Information Act 2000 (“FOIA”) against a Decision Notice issued by the Information Commissioner (“Commissioner”) on 27 October 2023, reference IC247766S5F0. By that Decision Notice (“DN”), the Commissioner concluded that the Second Respondent, the Chief Constable of Greater Manchester Police, had acted in accordance with FOIA in refusing the Appellant’s request for information and that no remedial steps were required.[2]The appeal concerns a request made by the Appellant for information relating to police misconduct proceedings conducted under the Police (Conduct) Regulations 2020. In particular, the Appellant sought disclosure of material connected with a misconduct hearing held in April 2023, which followed an investigation by the Independent Office for Police Conduct into the conduct of a number of serving and former GMP officers.[3]The information requested comprised two distinct but related categories. First, the Appellant sought the documentary bundle that had been provided to the misconduct panel for the purposes of determining the allegations before it, including witness statements, evidential material and associated documentation. Secondly, the Appellant sought a transcript of the misconduct hearing itself, or, in the alternative, the audio recording from which such a transcript could be produced.[4]The Second Respondent confirmed that it held the requested information but refused to disclose it under FOIA. In its refusal notice and internal review, it relied principally on the exemption contained in section 31(1)(g) FOIA, concerning prejudice to the exercise of law enforcement functions, read with section 31(2)(b), which relates to the purpose of ascertaining whether any person is responsible for conduct which is improper. It maintained that disclosure would, or would be likely to, prejudice the effective operation of police misconduct investigations and related disciplinary processes. At the internal review stage, it also relied on Section 32(1)(c) of FOIA and maintained that a redacted version of the hearing outcome had been published.[5]Following a complaint by the Appellant under section 50 FOIA, the Commissioner investigated the matter. By the DN now under appeal, the Commissioner upheld the Second Respondent’s reliance on section 31, concluded that the exemption was engaged in respect of the requested information as prejudice to the Second Respondent’s law enforcement function would be likely to occur and such prejudice was real and significant. It further concluded that the public interest favoured maintaining the exemption and withholding disclosure. In light of this conclusion, the ICO concluded that it was not necessary to consider the additional exemption under section 32.[6]The Appellant now appeals to this Tribunal, contending that the Commissioner erred in law and in his assessment of both the engagement of section 31 and the public interest balance. In broad terms, the Appellant maintains that the misconduct hearing in question was conducted in public, without reporting restrictions or a private sitting, with the result that the information sought was placed into the public domain. He submits that, in those circumstances, disclosure cannot give rise to prejudice within the meaning of section 31 and that, in any event, the public interest strongly favours disclosure in order to promote transparency and accountability in relation to police misconduct.[7]The Tribunal received a copy of the disputed information, and it was held on the basis that it would not be disclosed pursuant to rule 14 (6) of the GRC Rules. There is no closed decision.

Background

[8]The information request which gives rise to this appeal has its origins in a series of police misconduct proceedings conducted by the Second Respondent following an investigation undertaken by the Independent Office for Police Conduct (“IOPC”). That investigation concerned the conduct of a number of serving and former GMP officers arising out of inappropriate communications exchanged within a WhatsApp group, amongst other issues. The investigation revealed a pattern of behaviour which gave rise to professional standards concerns of varying seriousness, necessitating different regulatory responses in respect of different officers.[9]As a result of the IOPC investigation, multiple disciplinary pathways were pursued. Some officers were found to have no case to answer. Others were dealt with through misconduct meetings or management action. Three officers were referred to a full misconduct hearing on allegations of gross misconduct, in accordance with the Police (Conduct) Regulations 2020. It is that misconduct hearing which forms the immediate factual context for the present appeal.[10]The relevant misconduct hearing took place over the course of three days, between 3 and 5 April 2023. It was conducted before an independently constituted misconduct panel, chaired by a legally qualified chair and including independent panel members, in accordance with the statutory framework governing police misconduct proceedings. The hearing concerned allegations against three officers and involved the consideration of witness evidence, documentary material, and submissions on liability and outcome.[11]Consistent with the requirements of the Police (Conduct) Regulations, the hearing was held in public. Members of the public and the press were entitled to attend, subject to advance registration and to practical constraints on numbers. The regulatory framework prohibited recording or filming of the proceedings. No reporting restrictions were imposed, and no application was made for the hearing, or any part of it, to be conducted in private.[12]At the conclusion of the hearing, the panel made findings in respect of each of the officers and imposed sanctions. Those outcomes, including the nature of the misconduct found proven and the disciplinary action taken, were publicly reported. In particular, the Independent Office for Police Conduct published a summary of the investigation and the hearing outcomes on its website, setting out the relevant findings and sanctions. A summary decision was accordingly placed in the public domain, and the essential narrative of the misconduct proceedings became publicly available.[13]Redacted information was also published on the Second Respondent’s website by its Professional Standards Branch (indeed, this was the link that the Appellant provided in his request). The Second Respondent explained that such publications are made available only for a limited period after which they are removed. The Commissioner recorded that the relevant link had expired and was no longer accessible at the time of the investigation.[14]The Appellant’s request was made against that background. The Appellant sought access to the underlying materials which had informed the panel’s decision making. Specifically, he requested the full evidential bundle prepared for and supplied to the misconduct panel, including witness statements and documentary material, and a verbatim record of what was said during the hearing in the form of a transcript or, alternatively, the original audio recording.[15]It is common ground between the parties that the Second Respondent holds the requested information. There is no dispute that the evidential bundle was compiled and retained for the purposes of the misconduct proceedings, nor that an audio record of the hearing exists from which a transcript could be produced. The appeal is about whether the information is disclosable under the Act.[16]It is also common ground that the misconduct hearing was conducted in public. However, the Tribunal notes that this public character was subject to certain limitations inherent in the regulatory framework, including restrictions on attendance numbers and an express prohibition on recording or filming the proceedings (page E101). No official transcript was produced for public dissemination, and the evidential bundle was not made available to members of the public attending the hearing. We note that Regulation 44 of the Police (Conduct) Regulations 2020, made pursuant to powers under the Police Act 1996, Police Reform Act 2002 and the Policing and Crime Act 2017, states that the Officer concerned must be provided with a copy of the transcript on request.[17]These agreed factual matters form the foundation upon which the Tribunal must determine whether the Second Respondent was entitled to withhold the requested information under FOIA and whether the Commissioner was correct to uphold that refusal. Procedural history[18]Following receipt of the Appellant’s request, the Second Respondentconsidered whether the information sought could be disclosed in accordance with the statutory scheme. By a refusal notice dated 3 July 2023, it refused the request in its entirety. In that refusal, the Second Respondent relied principally on the exemption contained in section 31(1)(g) FOIA, read with section 31(2)(b) and (c), contending that disclosure of the requested material would, or would be likely to, prejudice the effective exercise of its law enforcement functions, in particular its functions relating to the investigation and determination of police misconduct.[19]The Appellant sought an internal review of that decision. The Second Respondent conducted an internal review and confirmed its original refusal. In its internal review response, it maintained its reliance on section 31 FOIA and reiterated its view that disclosure of the evidential bundle and the transcript or audio recording of the misconduct hearing would prejudice ongoing or future misconduct investigations. GMP accordingly upheld the decision to withhold the information.[20]Dissatisfied with that outcome, the Appellant made a complaint to the Information Commissioner under section 50 of FOIA. The Commissioner investigated the complaint, including obtaining further submissions from the Second Respondent explaining the basis on which the exemption was relied upon and the public interest factors said to justify maintaining it. The Commissioner also considered the Appellant’s submissions concerning the public nature of the misconduct hearing and the application of the open justice principle.[21]On 27 October 2023, the Commissioner issued a DN. In that notice, the Commissioner concluded that the Second Respondent was entitled to rely on section 31(1)(g) FOIA in respect of the requested information and that the exemption was engaged. The Commissioner further concluded that, having considered the competing public interests, the public interest favoured maintaining the exemption and withholding disclosure. The Commissioner therefore found that they had complied with their obligations under FOIA and that no further steps were required.[22]The Appellant exercised his right of appeal under section 57 FOIA and appealed the DN to this Tribunal. In his notice of appeal and subsequent written submissions, the Appellant challenged both the engagement of section 31 and the Commissioner’s assessment of the public interest balance. He also advanced arguments concerning other provisions of FOIA, including section 32(a) and relied on case law concerning open justice, public hearings, and access to material ventilated in public proceedings.[23]During the course of the appeal proceedings before the Tribunal, the parties exchanged written submissions in accordance with the Tribunal’s directions. The Second Respondent filed further evidence and submissions in support of its position, including witness evidence from a senior officer within its Professional Standards Department addressing the nature of the alleged prejudice. A redacted copy was provided in the Open Bundle, an unredacted copy was provided in the Closed Bundle.[24]At an earlier stage in the proceedings, arguments were advanced concerning the potential applicability of section 32(1)(c) FOIA, which concerns court records and related material. However, in light of subsequent authority from the Upper Tribunal clarifying the scope and application of section 32(1)(c), and in particular the circumstances in which police misconduct proceedings do or do not fall within that provision, the Second Respondent no longer relies on section 32(1)(c) in support of its refusal. The Tribunal records that, in those circumstances, it is neither necessary nor appropriate to determine the applicability of section 32(1)(c) for the purposes of disposing of this appeal.[25]In its Response to the Tribunal, the Second Respondent relied for the first time on section 32(1)(b) FOIA. It is submitted that this provision is capable of applying to documents served by a public authority for the purposes of proceedings otherwise than in a court. On that basis, it was argued that the Upper Tribunal’s decision on the meaning of “court” under section 32 did not apply to subsection (1)(b), and that the hearing bundle served by the Appropriate Authority fell within that exemption.[26]The Appellant challenged that interpretation in his reply. He submitted that section 32(1)(b) should be read in conjunction with the remainder of section 32, and that the phrase “proceedings in a particular cause or matter” is directed to proceedings before a court. He further relied on the Explanatory Notes as indicating that subsection (1) as a whole concerns court proceedings and associated records.[27]The Commissioner did not accept the Second Respondent’s reliance on section 32(1)(b). In his further submissions, he took the position that the provision does not extend to documents served in the course of proceedings otherwise than in a court, and that the hearing bundle was therefore not exempt under section 32(1)(b) on the facts of this case.[28]The appeal has been case managed and determined on the papers. The Tribunal is satisfied that it has had the benefit of full written submissions from all parties and that the issues raised can properly be determined without an oral hearing. The Tribunal has therefore resolved the appeal on the basis of the documentary evidence and written submissions before it, in accordance with the parties expressed preferences and the Tribunal’s procedural directions.

Relevant Legal Framework

[29]Section 1(1) FOIA provides that any person making a request for information to a public authority is entitled to be informed in writing whether the authority holds information of the description specified in the request and, if so, to have that information communicated.[30]When determining whether information is held, the Tribunal applies the civil standard of proof, namely the balance of probabilities.[31]FOIA provides a right of access to recorded information held by a public authority at the time of the request. It does not require a public authority to create new information, to obtain information from a third party, or to provide explanations or answers to questions unless such information is already held in recorded form.[32]The right of access is subject to a series of statutory exemptions, some of which require a public interest assessment. Section 31 – Law enforcement[33]Section 31 FOIA (“Law enforcement”) provides, so far as material:
‘(1) Information … is exempt information if its disclosure would, or would be likely to, prejudice— ….. (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, (c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise…’
[34]In assessing whether a prejudice based exemption under section 31 FOIA is engaged, the Tribunal applies the approach articulated by the Information Tribunal in Hogan and Oxford City Council v Information Commissioner (EA/2005/0026 and 0030). This requires identification of the relevant protected interest, the nature of the prejudice said to arise, and a causal link between disclosure of the information and that prejudice. The assessment is prospective and evaluative. Where it is contended that disclosure “would” prejudice the protected interest, the Tribunal must be satisfied that such prejudice is more probable than not. Where it is contended that disclosure “would be likely to” prejudice that interest, the threshold is lower but still significant: disclosure must give rise to a real and significant risk of prejudice, going beyond a fanciful or remote possibility, even if the occurrence of prejudice cannot be shown to be more probable than not. This interpretation reflects the approach of Munby J in R (Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin) and was adopted by the Information Tribunal in John Connor Press Associates Ltd v Information Commissioner (EA/2005/0005). In either case, while direct or empirical evidence of future harm will rarely be available, there must be a logical and credible causal connection between disclosure and the prejudice claimed; mere assertion or speculation is insufficient.[35]Speculative, abstract or merely theoretical risks of harm are to be disregarded.[36]Section 31 is a qualified exemption. Where the exemption is engaged, the Tribunal must consider whether the public interest in maintaining the exemption outweighs the public interest in disclosure, having regard to the nature, likelihood and severity of the prejudice identified. Section 32 (1)(b)[37]Section 32 provides:
‘Court records, etc. (1) Information held by a public authority is exempt information if it is held only by virtue of being contained in— (a)any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter, (b)any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter, or (c)any document created by— (i) a court, or (ii) a member of the administrative staff of a court, for the purposes of proceedings in a particular cause or matter’
.

Issues

[38]Following the decision of the Upper Tribunal in Kanter Webber v Information Commissioner and Chief Constable of Hampshire Constabulary [2025] UKUT 171 (AAC), the scope of the appeal has been materially narrowed. It is now common ground, and the Tribunal is bound by the Upper Tribunal’s determination, that section 32(1)(c) of the Freedom of Information Act 2000 (“FOIA”) does not apply to the information requested. The Tribunal therefore makes no findings under that provision.[39]The issues which arise for determination are as follows.[40]First, whether disclosure of(a) the bundle available to the panel and/or(b) the transcript or audio recording of the police misconduct proceedings would, or would be likely to, prejudice the exercise by the Second Respondent of its functions for any of the purposes specified in section 31(2) FOIA, such that the exemption in section 31(1)(g) FOIA is engaged.[41]Secondly, if section 31(1)(g) FOIA is engaged, whether, having regard to all the circumstances of the case, the public interest in maintaining that exemption outweighs the public interest in disclosure.[42]Third, is section 32(1)(b) FOIA applicable in respect of the bundle which the Second Respondent withheld.[43]In addressing those issues, the Tribunal has had regard in particular to the Appellant’s submissions that:(a) As the misconduct hearings were held in public and without reporting restrictions or private sittings, the information sought necessarily entered the public domain at the time of the hearings, albeit temporarily. It is therefore impossible for disclosure of that information to prejudice any of the law enforcement interests protected by section 31 FOIA, “They cannot now turn round and say that the cat they let out of the bag is a danger to the public interest. – at least, not without clear evidence of what has changed since the hearings”.(b) Had disclosure of the information posed any genuine risk to law enforcement or the public interest, the Second Respondent would have sought reporting restrictions or applied for the hearing, or part of it, to be conducted in private.(c) The Second Respondent cannot now rely on section 31 to withhold information which it willingly ventilated in open proceedings, absent clear evidence of a material change in circumstances since the hearings.(d) All witnesses who appeared before the misconduct panel did so voluntarily and in the knowledge that everything they said could be heard, transcribed, recorded, and reported by members of the public and the press.(e) Any member of the public lawfully attending the hearing was entitled to make a record of what was said and to publish that information at the time or subsequently, including on the internet. There is no meaningful distinction between disclosure under FOIA and the information already capable of being disseminated by observers.(f) The Second Respondent has adduced no adequate evidence, such as contemporaneous witness statements, demonstrating that disclosure would give rise to the prejudice asserted(g) Even if section 31 were capable of being engaged, the public interest in transparency, accountability, and public confidence in the policing of misconduct overwhelmingly favours disclosure, placing particular weight on the seriousness of the misconduct found proven and the importance of public scrutiny of how such matters are addressed.(h) In respect of section 40 FOIA, the Appellant submits that any personal data contained in the requested information was manifestly made public by their data subjects through participation in a public hearing. He further relies on the fact that the misconduct panel had statutory powers to order a private hearing or impose reporting restrictions, but did not do so, as reinforcing the conclusion that the personal data were made public by the choices of those involved.[44]The Tribunal addresses each of these matters, so far as material, under the statutory framework set out below. Analysis Is section 31(1)(g) FOIA engaged?[45]The Tribunal has no difficulty in concluding that the functions exercised by Greater Manchester Police in investigating and determining allegations of police misconduct fall squarely within the scope of section 31(2)(b) of FOIA, namely the purpose of ascertaining whether any person is responsible for conduct which is improper. Police misconduct proceedings are a central element of the law enforcement framework by which a police force regulates the professional behaviour of its officers, enforces standards, and maintains public confidence in the policing function. That conclusion is not controversial and was not materially disputed by the Appellant.[46]The more substantial and contested question for the Tribunal is whether disclosure of the specific information requested in this case would, or would be likely to, prejudice the exercise by the Second Respondent of those law enforcement functions. In addressing that question, the Tribunal has been careful to apply the correct legal test. It is not required that prejudice be shown to be inevitable or even more probable than not. Nor is it sufficient for the public authority merely to assert abstract or speculative concerns. The Tribunal must be satisfied, on the evidence, that there is a real, actual and significant risk of prejudice arising from disclosure.[47]The Second Respondent’s case on this issue is supported in particular by the witness evidence of Detective Superintendent Steve Keeley, a senior officer with extensive experience in professional standards and anticorruption investigations. The Tribunal considers that Detective Superintendent Keeley is well placed to give evidence on the practical operation of police misconduct systems and the consequences of disclosure for those systems. His evidence is measured, detailed, and grounded in professional experience rather than general assertion.[48]That evidence explains that the misconduct hearing which forms the immediate focus of the Appellant’s request did not exist in isolation. Rather, it was one element within a broader constellation of disciplinary and regulatory matters arising from the same underlying factual investigation. The Tribunal accepts that, at the time the request was made and responded to, aspects of that wider constellation were ongoing or reasonably foreseeable, including further misconduct processes, appeals, and related professional standards activity. The Tribunal further accepts that evidential material generated for one disciplinary hearing may retain operational relevance beyond the conclusion of that hearing, both in relation to connected cases and in shaping how future allegations of a similar nature are investigated and prosecuted.[49]The Tribunal has considered with care the nature of the specific materials sought. The misconduct bundle is not a mere compilation of publicly available information. It consists of witness statements, documentary exhibits, contextual and background material, and evidential summaries prepared for the purpose of enabling a panel to determine allegations within a structured statutory process. Much of that material is created, obtained, and assembled on the assumption that it will be deployed within the confines of that process, subject to its procedural safeguards and limitations, and not disseminated indiscriminately – including to those who attended to observe the hearing.[50]Similarly, the transcript or audio recording sought by the Appellant contains verbatim testimony from witnesses and submissions from advocates, given in a setting that, while public, nevertheless assumes a degree of controlled exposure. Witnesses give evidence knowing that their words may be heard by those present at the hearing and may be reported in summary form but not necessarily anticipating that an authoritative, complete and permanent verbatim record will be made available to the world at large for unrestricted use.[51]The Second Respondent’s case is that disclosure of these materials under FOIA, which by its nature is disclosure to the world at large without limitation or control as to use onward, would be likely to have at least two forms of prejudicial effect on its law enforcement functions.[52]First, the Second Respondent contends that such disclosure would undermine witness confidence and the willingness of witnesses to provide full and frank evidence in future misconduct proceedings. The Tribunal regards this concern as neither fanciful nor overstated. Misconduct proceedings frequently depend on evidence from police officers and staff who may be colleagues, subordinates, or former colleagues of the subject officer. The effectiveness of the misconduct regime depends on those individuals being willing to engage candidly with investigators and panels. The Tribunal accepts that a perception that their detailed statements or verbatim testimony may later be disclosed wholesale under FOIA, without the contextual framing or procedural protections of the disciplinary process, would be likely to deter at least some witnesses from cooperating or from being fully forthcoming.[53]Secondly, the Second Respondent submits that disclosure could interfere with ongoing or future proceedings by enabling evidential material to be reused, recontextualised, or selectively deployed outside the disciplinary process. The Tribunal considers this risk to be a serious one. Disclosure of raw evidential material carries with it the possibility that such material may be excerpted, compared, or repurposed in ways that were not contemplated within the original proceedings, potentially complicating or distorting related investigations, appeals, or subsequent misconduct cases. This risk is heightened where multiple proceedings arise from a shared factual matrix.[54]The Tribunal emphasises that it is not necessary for the Second Respondent to demonstrate that all witnesses would be deterred, or that prejudice would certainly ensue. The statutory test is met where there is a real and significant risk that disclosure would harm the effectiveness of the function in question. Having considered the evidence as a whole, the Tribunal is satisfied that such a risk exists in this case.[55]The Tribunal places particular weight on the structural importance of police misconduct proceedings within the broader law enforcement framework. These proceedings serve not only to adjudicate individual culpability but to uphold standards, deter future misconduct, and maintain public confidence in policing. If the willingness of witnesses to participate candidly were materially undermined, the capacity of the system to fulfil those objectives would be weakened. That outcome would itself be contrary to the public interest in accountability and effective policing.[56]Taking all these factors together and assessing the likelihood and nature of the prejudice by reference to the circumstances as they existed at the time of the response to the request, the Tribunal concludes that disclosure of the requested information would be likely to prejudice the exercise by the Second Respondent of its law enforcement functions. The exemption in section 31(1)(g) FOIA is therefore engaged. The Public Nature of the Hearing[57]The Appellant places strong reliance on the fact that the misconduct hearing to which the requested information relates was conducted in public. He submits that, because the hearing itself was open to members of the public and the press, it is incoherent for the Second Respondent thereafter to contend that disclosure of the underlying materials would cause prejudice within the meaning of section 31 of FOIA. In his submission, once information has been ventilated in open proceedings, it has irretrievably entered the public domain and can no longer attract the protection of a law enforcement exemption.[58]The Tribunal accepts that the public nature of the hearing is an important contextual factor and one that must be given careful consideration. Open disciplinary proceedings play a significant role in promoting transparency, accountability, and public confidence in policing. The Tribunal also recognises that the holding of a hearing in public reflects a deliberate regulatory and constitutional choice, rooted in the principle of open justice. That principle carries substantial weight and must not be treated lightly.[59]However, the Tribunal does not accept the conclusion which the Appellant seeks to draw from that premise. The fact that proceedings are conducted in public does not, of itself, determine the outcome of a request under FOIA, nor does it operate as a categorical bar to the application of statutory exemptions. The Tribunal’s task is to apply FOIA as enacted, not to treat the open justice principle as automatically displacing the carefully calibrated statutory scheme governing access to information.[60]Open justice permits public observation of proceedings and scrutiny of their conduct. It ensures that decision making is exposed to public view and that justice is seen to be done. It does not, however, confer a general or unlimited right of access to all documents, materials, or records generated for the purposes of those proceedings. Nor does it entail that all information deployed within a public hearing becomes freely accessible thereafter for all purposes.[61]There is a well established and legally significant distinction between information that may be heard, observed, or reported upon as part of public proceedings, and information that is disclosed in documentary or recorded form for unrestricted further dissemination. Attendance at a hearing is temporally and contextually bounded. It exposes observers to evidence as presented, subject to judicial or quasi-judicial control, procedural safeguards, and the immediate framing of relevance and weight. By contrast, disclosure under FOIA is disclosure to the world at large, without limitation as to audience, purpose, or onward use.[62]That distinction is not peculiar to FOIA. It is recognised throughout the legal system in the rules and practices governing access to court and tribunal materials. In many contexts, while hearings are public, there are significant restrictions on public access to hearing bundles, witness statements, transcripts, and exhibits. Transcripts are often available as of right to parties but not to the public at large, or only upon application and subject to conditions. Hearing bundles are commonly treated as confidential unless the court or tribunal orders otherwise. These practices reflect a longstanding understanding that openness of proceedings does not equate to unrestricted access to all underlying materials.[63]The Tribunal considers that Parliament, in enacting FOIA, cannot have intended to collapse that distinction by default. The statutory right of access under FOIA exists alongside, not in substitution for, the procedural regimes governing disclosure in judicial and disciplinary processes. It would be inconsistent with the structure of FOIA for the mere fact that a hearing is public to automatically render all associated documentation disclosable, irrespective of the statutory exemptions Parliament has provided to protect other compelling public interests.[64]The Tribunal further observes that the regulatory framework governing police misconduct hearings itself reflects this distinction. While misconduct hearings are generally held in public, the Regulations empower the chair to impose conditions on attendance, including prohibitions on recording or filming, and in this case such a prohibition was imposed. That framework evidences a legislative judgment that transparency is to be achieved primarily through public attendance, reporting of outcomes, and publication of summaries, rather than through wholesale documentary disclosure.[65]In the present case, the Tribunal places weight on the fact that transparency has, in fact, been substantially achieved. The hearing was public. Its outcomes were publicly announced. Detailed summaries were published by the Independent Office for Police Conduct, setting out the nature of the misconduct found, the reasoning in broad terms, and the sanctions imposed. As a result, the public is informed as to what occurred, the seriousness of the conduct, and how the disciplinary system responded.[66]Against that background, the Tribunal does not accept that there is a significant residual “transparency deficit” which requires the disclosure of the full misconduct bundle or a verbatim transcript/audio recording, in order to vindicate the public interest in open justice. To the contrary, the additional transparency sought by the Appellant would involve a qualitatively different and far more intrusive form of disclosure, with materially different consequences for the misconduct system as a whole.[67]The Tribunal therefore rejects the submission that the public nature of the hearing negates or fatally undermines the application of section 31 FOIA. While publicity is a relevant contextual factor, it does not preclude a finding that further disclosure would be likely to prejudice law enforcement functions. The question remains one of statutory judgment under FOIA, and for the reasons set out elsewhere in this decision, the Tribunal is satisfied that section 31(1)(g) is engaged notwithstanding the public character of the hearing. Further submissions raised by the Appellant[68]The Tribunal now turns to address a number of further submissions advanced by the Appellant in his grounds of appeal and skeleton argument which have not already been dealt with expressly above.[69]The Appellant places considerable emphasis on the proposition that, because members of the public or press attended a public misconduct hearing without reporting restrictions, anything that transpired could be heard, transcribed and/or recorded, it therefore follows that disclosure by the public authority under FOIA cannot give rise to any additional or legally cognisable prejudice. In support of this proposition, the Appellant relies on authorities concerning the open justice principle and the lawfulness of third parties reporting or disseminating information heard in open court.[70]The Tribunal does not accept that that reasoning is sound in the context of a request under FOIA. Firstly, they were not permitted to ‘record’ the proceedings: a public notice was published in advance of the hearing which explicitly stated that no recording or filming was allowed (only 12 people were permitted to attend, they were required to pre-register, leaving their details including telephone number and email address and anyone who was not pre-registered would not be allowed to attend the hearing), as detailed at paragraph 14 of Detective Superintendent Steve Keeley’s statement, pg E101 of the bundle. Secondly, the fact that an individual observer may lawfully publish their own account of what they have witnessed does not equate to the public authority itself being obliged to disclose, under statutory compulsion, a complete and authoritative archive of evidential material or verbatim recordings. Disclosure under FOIA is not equivalent to the contingent, fragmentary, and individualised dissemination of information by observers. Rather, it constitutes official disclosure, endorsed by the authority, of complete records assembled and retained for law enforcement purposes. The Tribunal considers that this distinction is both real and legally significant, particularly when assessing prejudice under section 31.[71]The Appellant further argues that, because the Second Respondent chose not to apply for a reporting restriction or private hearing, it must be taken to have accepted the risk of unrestricted dissemination and cannot later rely on section 31. The Tribunal is not persuaded by that submission. The choice whether to conduct a hearing in public or to seek reporting restrictions is made within and for the purposes of the misconduct regulatory framework. It involves an assessment of whether justice and accountability are best served by public scrutiny at the time of the hearing. In short, it was found that reasons in favour of disclosure, outweighed any prejudice which may arise – at that time. It is not a waiver of statutory rights or protections under FOIA, nor an irrevocable concession that all materials deployed in the proceedings may later be disclosed without regard to prejudice or public interest.[72]Nor does the Tribunal accept that the Second Respondent must demonstrate that “something has changed” since the hearing in order to rely on section 31. The statutory test does not require a public authority to show that circumstances have altered between the hearing and the FOIA request. Rather, the Tribunal must assess, as at the time of the response, whether disclosure would, or would be likely to, prejudice the relevant law enforcement function. That assessment properly takes into account the different nature, scale, and permanence of disclosure under FOIA as compared with ephemeral exposure during a hearing, regardless of whether the underlying facts remain the same. In any event, we note that ‘something’ did in fact change since the hearing, namely further legal challenges and disciplinary processes (as detailed at page C90).[73]The Appellant also places weight on the voluntary participation of witnesses and submits that witnesses who appear at a public misconduct hearing must be taken to have accepted that their evidence may be transcribed, recorded, and disseminated. The Tribunal does not accept this characterisation. Witnesses who give evidence in a public misconduct hearing do so within the procedural context established by the Police (Conduct) Regulations. That context includes public attendance, but also includes prohibitions on recording and filming, the absence of routine public transcripts, and the understanding that evidential material is marshalled and controlled by the panel and the authority. The Tribunal is not persuaded that witnesses can properly be said to have consented, explicitly or implicitly, to unlimited future disclosure of their statements or verbatim testimony under FOIA.[74]Insofar as the Appellant relies on data protection concepts of information being “manifestly made public” by its data subjects, the Tribunal observes that this submission does not address, and cannot override, the distinct statutory regime under FOIA s 31. Even where personal data have been made public, the question under FOIA remains whether disclosure of the information held by the authority would prejudice a protected function and, if so, where the balance of the public interest lies. The Tribunal therefore does not regard arguments grounded in data protection law as determinative of the section 31 analysis.[75]The Tribunal further notes that many of the authorities relied upon by the Appellant concern the scope of the open justice principle, the powers of courts and tribunals in relation to access to court material, or the reasonable expectation of privacy in particular factual contexts. Those authorities do not establish a general rule that information referred to in public proceedings must thereafter be disclosed under FOIA, nor that prejudice based exemptions are unavailable in such circumstances. The Tribunal considers that the Appellant’s submissions elide distinct legal regimes and overstate the reach of the open justice authorities on which he relies.[76]We note that the Second Respondent has adduced detailed and credible evidence from a senior officer with direct responsibility for professional standards matters, explaining the nature of the prejudice relied upon. The Tribunal is satisfied that this evidence is sufficient to ground the engagement of section 31, and it is not a requirement of the statutory scheme that a public authority must adduce multiple witness statements or prove prejudice to the criminal standard.[77]For all of these reasons, the Tribunal is satisfied that none of the additional arguments advanced by the Appellant displaces the conclusions reached elsewhere in this decision. The Tribunal remains satisfied that disclosure of the requested information would be likely to prejudice the Second Respondent’s law enforcement functions and that the public interest favours maintaining the exemption.[2]Does the Public Interest in maintaining the exemption outweigh the public interest in disclosure?[78]The Tribunal begins by acknowledging, and giving significant weight to, the strong public interest in transparency in relation to police misconduct. Police officers occupy positions of authority and trust, and allegations of misconduct on their part engage fundamental questions of public confidence, accountability, and the legitimacy of the exercise of coercive power. There is a clear and longstanding public interest in ensuring that such allegations are investigated thoroughly, determined fairly, and subjected to an appropriate degree of public scrutiny.[79]That public interest is materially heightened in the present case by the nature and seriousness of the misconduct alleged and found proven. The misconduct proceedings concerned behaviour, which was discriminatory and which, if left unaddressed, had the potential to undermine confidence not only in the individual officers concerned but, in the culture, and values of the police service more broadly. The Tribunal therefore accepts that the subject matter of the request falls within a category of cases where transparency is of particular importance and where the public interest in openness is at its strongest.[80]The Tribunal also recognises that disclosure of detailed materials beyond the published outcomes might, in principle, contribute to informed public debate. Access to granular evidence and verbatim testimony may enable members of the public, journalists, and commentators to form their own assessments of the quality of decision making, the adequacy of institutional responses to misconduct, and the extent to which disciplinary systems grapple effectively with structural or cultural issues within policing. These are legitimate public interest considerations, and they are taken seriously by the Tribunal.[81]However, the Tribunal must weigh those considerations against competing public interests which are also of substantial weight. FOIA requires the Tribunal to conduct a balancing exercise, not to identify a single dominant public interest to the exclusion of all others. In the present case, the countervailing public interest lies in maintaining effective, fair, and robust police disciplinary systems capable of investigating misconduct thoroughly and securing the cooperation of witnesses.[82]As explained above, those systems depend to a significant degree on the willingness of individuals to provide candid evidence, sometimes about colleagues or superiors, and sometimes in relation to sensitive or controversial matters. The Tribunal is satisfied that there is a real public interest in avoiding disclosures which could reasonably be expected to deter such cooperation or to chill the candour of evidence in future cases. A disciplinary system which struggles to obtain full and frank evidence is one that will be less effective at identifying and addressing misconduct, thereby undermining—rather than advancing—the broader public interest in police accountability.[83]The Tribunal also regards as relevant the extent to which the public interest in transparency has already been met in this case. The misconduct hearing was conducted in public. Members of the public and the press were permitted to attend and to observe the proceedings. The outcomes of the hearing were publicly announced. Detailed summaries of the findings and sanctions were published by the Independent Office for Police Conduct, an organisation specifically charged with promoting public confidence in the handling of police misconduct (and independent from the Second Respondent).[84]As a result, the public is already aware of the substance of the allegations, the findings reached, and the disciplinary consequences imposed. The essential narrative of what occurred, and how the misconduct was addressed, is not hidden from public view. The Tribunal therefore considers that the transparency already achieved in this case is significant and weighs heavily in the balancing exercise.[85]Viewed in that light, the additional transparency that would be achieved by disclosing the full misconduct bundle and a verbatim transcript/audio recording is incremental. It would add detail and nuance, but it would not fundamentally alter the public’s understanding of the case or of the force’s response to the misconduct. The Tribunal does not consider that FOIA requires disclosure of all underlying evidential materials in every case where misconduct has been publicly aired, particularly where the marginal benefit of further disclosure is limited.[86]Against that limited incremental benefit, the Tribunal must weigh the real and significant risks identified earlier in this decision. Those risks include harm to witness candour, disruption to ongoing or future misconduct investigations, and broader damage to the effectiveness of the disciplinary system. The Tribunal is satisfied that these are not abstract concerns, but concrete risks grounded in the operational realities of professional standards work.[87]The Tribunal also places weight on the timing of the request and the response. The public interest balance under FOIA must be considered at the time of the response to the request. At that point, related misconduct matters arising from the same investigation were ongoing or reasonably foreseeable. The disciplinary landscape had not fully settled. In those circumstances, the public interest in protecting the integrity of live or nascent processes is particularly strong and must be given appropriate weight.[88]Conducting the balancing exercise in the round, and as of July 2023, the Tribunal concludes that although the public interest in transparency is strong, it is outweighed in this case by the public interest in maintaining the effectiveness and integrity of police disciplinary systems. The Tribunal is therefore satisfied that the public interest favours maintaining the exemption in section 31 and withholding the requested information.[3]Is section 32(1)(b) FOIA applicable in respect of the bundle which the Second Respondent withheld.[89]The Tribunal has also considered whether section 32(1)(b) FOIA is applicable in respect of the bundle withheld by the Second Respondent.[90]In light of the Tribunal’s findings elsewhere in this decision, it is not necessary to reach a determination on that issue in order to dispose of the appeal. This is because the Tribunal is satisfied, for the reasons set out above, that section 31(1)(g) FOIA is engaged in respect of the requested information and that the public interest favours maintenance of that exemption.[91]Accordingly, section 32(1)(b) does not fall to be determinative of the outcome of the appeal and the Tribunal makes no findings on its applicability. Section 40 FOIA (personal data)[92]The Tribunal notes that the Appellant has made submissions in relation to section 40 FOIA in his skeleton argument/reply. Neither the First Respondent nor the Second Respondent, however, relies upon that exemption in these proceedings.[93]The Tribunal considers it unnecessary to determine whether section 40 FOIA would apply to any of the requested information, or to resolve the operation of any data protection gateway, given its conclusion that section 31(1)(g) FOIA is engaged and that the public interest favours maintaining that exemption.[94]In those circumstances, section 40 is not determinative of the appeal. The Tribunal records, however, that nothing in this decision should be read as endorsing the proposition that the public nature of disciplinary proceedings removes or exhausts the protection afforded to personal data under FOIA or the data protection regime.[95]While the Tribunal has therefore considered the Appellant’s submissions on section 40, it is neither necessary nor appropriate to make definitive findings on that exemption for the purposes of disposing of the appeal. Conclusion[96]The Tribunal concludes that disclosure of the transcript or audio recording of the police misconduct proceedings and the evidential bundle prepared for and supplied to the misconduct panel is exempt from disclosure under section 31(1)(g) FOIA.[97]The Tribunal further concludes that none of the Appellant’s grounds of appeal discloses an error of law in the DN dated 27 October 2023. The Commissioner was therefore entitled to reach the conclusion he did and that the DN was correct.[98]The appeal is dismissed. Signed Date: Judge Kiai 26 April 2026