Gabriel Kanter-Webber v The Information Commissioner & Anor [2026] UKFTT 858 (GRC)

[2026] UKFTT 00858 (GRC)Case Reference: EA/2022/0100
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 6 th January 2026Date 12 June 2026
Information Rights
Decided without hearing
Before
JUDGE KIAIMEMBER SAUNDERSMEMBER DR MANN
Between
gabriel kanter-webberAppellantTHE INFORMATION COMMISSIONERRespondentHAMPSHIRE CONSTABULARYRespondentDecision: The appeal is refused.REASONS

Introduction

[1]This decision relates to an appeal brought by Mr Kanter-Webber (“the Appellant”) against decision notice IC-94049-Q4D7 (“DN”), issued by the Information Commissioner (“the Commissioner”) on 5 April 2021.[2]The appeal concerns audio recordings/transcript of police misconduct proceedings. Hampshire Constabulary refused to disclose those recordings/transcript. In doing so, it relied on sections 31, 32 and 40 FOIA.[3]In the DN dated 5 April 2022, the Commissioner upheld the Second Respondent’s decision not to disclose that information. The Appellant challenges that conclusion.[4]This decision is given following the remission of this appeal to the Upper Tribunal. Following the Upper Tribunal’s findings, which are binding on this Tribunal, section 32 is no longer an issue in these proceedings (as expanded upon below). The issues arising on remission are confined to whether the information requested by the Appellant, i.e., is exempt from disclosure under section 31(1)(g) FOIA and/or section 40 FOIA.[5]The appeal has been determined on the papers, with the consent of the parties.[6]The Tribunal received a copy of the disputed information, and it was held on the basis it would not be disclosed pursuant to rule 14 (6) of the GRC Rules. There is no closed decision.

Preliminary Matters and Jurisdiction

[7]This is the remitted determination of this appeal following the judgment of the Upper Tribunal in Kanter-Webber v Information Commissioner and Chief Constable of Hampshire Constabulary [2025] UKUT 171 (AAC). The Upper Tribunal set aside the earlier decision of the First-tier Tribunal in its entirety and remitted the appeal to be determined afresh in accordance with binding legal directions.[8]The Upper Tribunal’s judgment performs two functions of lasting significance. First, it determines conclusively the proper legal characterisation of police misconduct panels for the purposes of section 32 of the Freedom of Information Act 2000 (“FOIA”). Secondly, it delineates precisely the scope of the remitted Tribunal’s task.[9]The Upper Tribunal held, as a matter of law, that a police misconduct panel convened under the Police (Conduct) Regulations does not exercise the judicial power of the State and therefore is not a “court” within the meaning of section 32(4)(a) FOIA. That determination binds this Tribunal absolutely.[10]The Tribunal therefore records, at the outset, that section 32 FOIA has no application to the present appeal. No argument founded, directly or indirectly, on that section has been considered, nor could it properly have been.[11]The Tribunal’s jurisdiction on remission is confined to determining whether the refusal to disclose the transcript or audio recording of the misconduct proceedings is justified under section 31(1)(g) FOIA and/or section 40 FOIA.

Procedural History

[12]On 18 January 2021 the Appellant made a request under FOIA to Hampshire Constabulary seeking disclosure of information relating to misconduct proceedings against six police officers. The request included three distinct categories of information: the written outcome, the decision on sanction, and the transcript or audio recording of the proceedings.[13]The Second Respondent disclosed the written outcome and sanction information; however disclosure of the transcript or audio recording was refused.[14]The refusal was grounded initially in reliance on section 31 FOIA. Following an internal review, that refusal was maintained.[15]The Appellant complained to the Information Commissioner. After investigation, the Commissioner issued a DN on 5 April 2022. The Commissioner concluded that section 31 FOIA applied and that the public interest favoured maintaining the exemption. The Commissioner did not determine which FOIA section applied: 32 or 40.[16]The Appellant appealed to the First-tier Tribunal. That appeal was listed for an oral hearing and determined on 30 January 2024. The Tribunal dismissed the appeal, holding that the information was exempt as a court record under section 32 FOIA.[17]The Appellant appealed further to the Upper Tribunal. That appeal succeeded. The Upper Tribunal found that the First-tier Tribunal had materially erred in law and remitted the appeal.[18]The appeal now before this Tribunal has therefore travelled the full appellate hierarchy short of the Court of Appeal. It raises legal questions of general importance concerning the interaction between transparency, disciplinary regulation, data protection, and FOIA.

Factual Background

[19]The misconduct proceedings which form the subject-matter of the request were convened under the Police (Conduct) Regulations 2012. They concerned six police officers who were, at the material times, members of Hampshire Constabulary’s Serious and Organised Crime Unit.[20]The allegations were exceptionally serious. They asserted that over an extended period the officers engaged in behaviour characterised by racist, sexist, and homophobic remarks, conveyed in both spoken and written form, including private electronic communications. The allegations also included failures to challenge or report such conduct.[21]The proceedings were evidentially complex. They were supported by covert recordings, documentary material, and witness testimony. The hearing extended over approximately 21 sitting days between October 2020 and January 2021.[22]The panel was chaired by a Legally Qualified Chair and included a senior police officer and an independent lay member. The constitution of the panel reflected the legislative intention to combine legal expertise, professional understanding, and independent oversight.[23]The hearing was formally public. Due to the COVID-19 pandemic, it was conducted partly remotely. The public and the press were enabled to observe proceedings by livestream and other arrangements.[24]The proceedings attracted significant and sustained media attention—multiple national news outlets reported on the allegations, the evidence, and the outcome.[25]At the conclusion of the hearing, findings of gross misconduct were made against all six officers. Sanctions included dismissal without notice, final written warnings, and findings that dismissed outcomes would have followed had certain officers not resigned.[26]A detailed Outcome Notice was published. This document was comprehensive and analytical. It set out the allegations, summarised the evidence, explained the panel’s reasoning, and justified the sanctions imposed. It ran to approximately 72 pages and more than 300 paragraphs.

The Request

[27]The information sought consists of the verbatim transcript or audio recording of the misconduct proceedings in their entirety.[28]The Tribunal accepts the Second Respondent’s evidence, unchallenged in material respects, that the transcript is lengthy and constitutes a word-for-word record of every substantive utterance made during the hearing.[29]The material identifies all participants, including officers, witnesses, representatives, panel members, and administrative staff. It records evidence in chief and cross-examination, submissions, interlocutory exchanges, and oral rulings.[30]The Tribunal also accepts that the material contains sensitive contextual information not reproduced in the published Outcome Notice, including references to private communications, collateral matters, and personal circumstances.[31]The Tribunal considers the request on the footing that disclosure would be of the transcript or recording as a whole, and that selective extraction or redaction would not meaningfully alter the essential character of the disclosure sought.

Relevant Legal Framework

[32]Section 1(1) FOIA provides that any person requesting 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.[33]When determining whether information is held, the Tribunal applies the civil standard of proof, namely the balance of probabilities.[34]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.[35]The right of access is subject to a series of statutory exemptions, some of which require a public interest assessment. Section 31 – Law enforcement[36]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— (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders (c) ….. (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…’
[37]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.[38]Speculative, abstract or merely theoretical risks of harm are to be disregarded.[39]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 40 FOIA – Personal information[40]Section 40 provides an exemption from disclosure where the information requested constitutes personal data. Where the information is personal data relating to individuals other than the requester, section 40(2) applies.[41]Section 40(2) FOIA provides that information is exempt if disclosure would contravene any of the data protection principles set out in Article 5(1) of the UK General Data Protection Regulation (“UK GDPR”). Where this condition is satisfied, the exemption is absolute and no public interest test arises.[42]“Personal data” is defined in Article 4(1) UK GDPR as any information relating to an identified or identifiable living individual. An individual is identifiable where they can be identified, directly or indirectly, by reference to the information itself or by reference to that information together with other information reasonably likely to be available to a member of the public.[43]Identifiability is a question of fact and degree and must be assessed contextually. Information does not cease to be personal data merely because names could be removed. The Tribunal must consider whether a motivated or informed member of the public could, in practice, identify the individuals concerned, having regard to the wider factual context, including public reporting and the nature of the proceedings.[44]Where information is personal data, the Tribunal must consider whether disclosure would be lawful and fair under Article 5(1)(a) UK GDPR.[45]In the FOIA context, lawfulness turns primarily on whether a lawful basis under Article 6(1) UK GDPR is satisfied. The only potentially relevant basis in this appeal is Article 6(1)(f), which permits processing where it is necessary for the purposes of legitimate interest, unless those interest is overridden by the rights and freedoms of the data subjects.[46]The application of Article 6(1)(f) requires a structured analysis of: (i) whether a legitimate interest in disclosure has been identified;(ii) whether disclosure of the personal data is necessary to meet that interest; and(iii) whether that interest is overridden by the rights and interests of the data subjects.[47]Transparency and accountability in police disciplinary processes, and the broader principle of open justice, are capable of constituting legitimate interests. However, disclosure under FOIA is disclosure to the world at large and must be assessed on that basis. The Tribunal must therefore consider whether disclosure of the personal data is reasonably necessary to meet the identified legitimate interest, or whether that interest has already been met by less intrusive means.[48]If disclosure is not reasonably necessary, Article 6(1)(f) is not satisfied and disclosure would be unlawful for the purposes of Article 5(1)(a). In those circumstances, section 40(2) FOIA applies without the need to proceed to a balancing exercise.[49]If it were necessary to proceed to the balancing stage, relevant considerations would include the reasonable expectations of the data subjects, the nature and sensitivity of the information, the number of individuals affected and the consequences of unrestricted disclosure under FOIA.[50]Where disclosure would be unlawful or unfair, section 40(2) FOIA applies as an absolute exemption. It is not subject to the public interest test in section 2(2) FOIA.

Issues

[51]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.[52]It is now common ground, and the Tribunal is bound by the Upper Tribunal’s determination, that section 32 of the Freedom of Information Act 2000 (“FOIA”) does not apply to the information requested. The Tribunal therefore makes no findings under that provision.[53]The issues which arise for determination on remission are accordingly as follows.[54]First, whether disclosure of 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.[55]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.[56]Thirdly (and separately), whether disclosure of the requested information would contravene the data protection principles, such that the information is exempt from disclosure by virtue of section 40(2) FOIA.[57]In addressing those issues, the Tribunal has had regard in particular to the Appellant’s submissions that:(a) the misconduct proceedings were held in public without reporting restrictions and that the information requested was therefore placed into the public domain at the time of the hearing;(b) witnesses participated voluntarily and with knowledge of the public nature of the proceedings;(c) disclosure of a transcript or audio recording cannot, in those circumstances, cause any additional prejudice to the Second Respondent’s regulatory functions; and(d) the personal data contained in the requested information were manifestly made public by the data subjects for the purposes of Article 9(2)(e) UK GDPR.[58]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?[59]The Appellant’s submissions under section 31 are sophisticated and principled. They merit careful and sustained engagement.[60]At the centre of the Appellant’s case is the contention that the misconduct proceedings were “by definition” placed into the public domain at the time of the misconduct hearing, they were public in every meaningful sense. The Appellant submits that once proceedings are conducted openly, and once their content is widely reported, the logic of prejudice collapses. He further asserts that the Second Respondent was content for all information emerging from the hearing to enter and to remain in the public domain, having chosen to proceed with a public hearing free from reporting restrictions.[61]The Appellant argues that transparency achieved at the hearing stage cannot sensibly be undone by invoking section 31 at a later stage. He contends that the distinction between observing a hearing and accessing its transcript is artificial.[62]The Appellant further submits that refusal to disclose the verbatim record undermines public confidence. It is said to foster suspicion that authorities speak of openness while retaining control over the narrative.[63]The Appellant also places weight on the seriousness of the misconduct. He submits that the greater the public concern, the stronger the case for full transparency.[64]Finally, the Appellant argues that witnesses and officers chose to participate in a public forum. In doing so, it is said, they must be taken to have accepted the consequences of publicity. Public Hearings and FOIA disclosure[65]In considering whether section 31 is engaged, the Tribunal has applied the established test: whether disclosure would, or would be likely to, prejudice the exercise of the relevant regulatory functions. That assessment is prospective and evaluative and does not require proof that prejudice has already occurred, nor evidence that particular individuals in this case would necessarily have acted differently.”[66]The Tribunal has approached these submissions with particular care. It recognises the strength of the Appellant’s commitment to transparency and the seriousness of the matters at issues. Nevertheless, it is not persuaded that the Appellant’s analysis is correct.[67]We accept that the misconduct hearing was held in public and that, in choosing not to impose reporting restrictions, the Second Respondent accepted that members of the press and public may attend, hear what was said and report upon it, however we are unable to accept that this leads to the conclusion that section 31 FOIA cannot be engaged.[68]The Tribunal considers that the Appellant’s case rests on a fundamental conflation of two distinct concepts: public proceedings on the one hand, and FOIA disclosure on the other.[69]A public hearing is a bounded procedural event. It occurs in a defined institutional setting. It is governed by rules and is both time-limited and situational. It permits attendance, observation and reporting, within the constraints inherent in the procedural context.[70]Disclosure under FOIA is of a different order. It involves the creation of a complete, stable, authoritative record, capable of unlimited reproduction, extraction, and repurposing. It would result in a verbatim and permanent record, disclosed to the world at large without restriction as to audience, purpose or duration. We do not accept that holding a hearing in public was an acceptance of the consequences of unrestricted future disclosure under FOIA in all formats and for all purposes.[71]The Tribunal considers this distinction to be legally and practically significant. It has been recognised in multiple contexts, including court practice, data protection law, and information governance. The question is not whether a hearing may be public, but whether the mode and consequences of disclosure under FOIA would be likely to prejudice the exercise of regulatory functions.[72]There is, in our judgement, a profound and legally significant difference between public access to a hearing at a particular time and the permanent disclosure of a verbatim record to the world at large. Public hearings are bounded events, subject to judicial or quasi-judicial control. They facilitate observation, reporting and scrutiny, but they do not entertain the extraction and indefinite re-use of every word spoken. Disclosure under FOIA, by contrast, is unbounded. It is not limited to litigants, journalists or those with a genuine interest in the proceedings. It permits unlimited republication, re-editing and re-contextualisation, without the safeguards inherent in the original procedural setting.[73]The Tribunal has considered the Appellant’s submission that every witness who voluntarily attends a public police misconduct hearing does so in the knowledge that what they say may be heard, transcribed or recorded by any member of the public and that an observer may publish such a record contemporaneously or at a later date. We accept that witnesses attend public hearings with an understanding that what they say may be reported. However, we do not accept that it follows that witnesses thereby accept or should be treated as having accepted, the prospect of official and permanent disclosure under FOIA of a complete verbatim record.[74]In our judgement, witnesses may reasonably distinguish between the possibility of contemporaneous reporting or recollection by observers and the certainty of authoritative disclosure under statute of an official transcript or recording, preserved indefinitely and available for unrestricted future use.[75]The distinction is not merely technical. It goes to the nature and degree of exposure experienced by those who participate in misconduct proceedings and to the wider systemic question of how such disclosure is likely to influence future cooperation and candour.[76]The Tribunal considers that the prospect of such disclosure would be likely to deter witnesses from coming forward in future cases, particularly in sensitive disciplinary matters involving colleagues, power imbalances, or reputational risk.[77]That chilling effect would undermine the very regulatory functions which misconduct proceedings exist to serve.[78]We have considered the Appellant’s submission that it is “impossible to see” how section 31 can be engaged, particularly given the absence of any evidence or witness statements from the Second Respondent addressing prejudice. However, we do not accept that section 31 requires empirical or witness evidence of deterrence in the form suggested. The assessment required under section 31 is prospective and evaluative. The Tribunal is entitled to draw upon its judicial experience and its understanding of how regulatory and disciplinary systems function. In any event, we note that the Second Respondent did in fact rely upon a witness statement from Detective Chief Inspector Justin Dipper, Head of the Anti-Corruption Unit, dated 15 August 2025 (supplementary bundle, B8–B10). That statement describes, from a senior policing and disciplinary perspective, the practical operation of misconduct investigations and hearings, the reliance placed upon vulnerable complainants and witnesses, and the potential chilling effect which the wider dissemination of detailed hearing material may have upon future participation, candour and engagement. While we do not treat that evidence as determinative, nor as requiring us to speculate about individual cases, it provides contextual support for the Second Respondent’s contention that disclosure of the disputed information would be likely to prejudice the effective conduct of misconduct proceedings by discouraging reporting and cooperation. Its presence reinforces, rather than replaces, the Tribunal’s own prospective assessment under section 31.[79]The concern advanced by the Second Respondent is not that particular witnesses in this case would have acted differently, but that routine disclosure of transcripts or recordings under FOIA would be likely, over time, to influence the willingness of individuals to participate openly in future misconduct investigations. The Tribunal considers that this concern is rational, systemic, and capable of engagement without the need for formal witness evidence. Public Domain and Media Reporting[80]The Tribunal does not accept the Appellant’s submission that contemporaneous media reporting places the withheld materially fully within the public domain so as to displace the preceding analysis. The concept of the public domain is not binary. Partial disclosure or selective reporting does not equate to complete or unfettered accessibility. Journalistic reporting is necessarily selective, interpretive, and contextual; it is not synonymous with the creation or release of a complete and authoritative verbatim record.[81]In describing media reporting as “time-bound”, the Tribunal does not suggest that journalistic material necessarily ceases to exist or becomes inaccessible after a defined period. It is well recognised that media reports may remain available through online archives for many years. The Tribunal uses the term to describe the functional and contextual character of such reporting.[82]Journalistic reporting is produced for a contemporaneous audience and derives its significance from its connection to a current event. It is framed by editorial judgment as to relevance, emphasis, and public interest at the time of publication and is embedded within a particular news cycle. Even where reports remain technically accessible thereafter, their prominence, salience, and practical impact diminish as events recede into the past.[83]Disclosure under FOIA is qualitatively different. It involves the release by the State of an official, complete, and authoritative record, untethered from any particular temporal or editorial context and disclosed without restriction as to audience, purpose or duration. Such disclosure does not merely facilitate contemporaneous scrutiny, but enables indefinite reference, reuse, extraction, and redeployment for purposes wholly unrelated to the original proceedings. It is this distinction which the Tribunal considers material to the assessment of prejudice under section 31 FOIA.[84]When referring to the redeployment of material for purposes unrelated to the original proceedings, the Tribunal has in mind the qualitative change that occurs when information disclosed in a bounded disciplinary context is released under FOIA as a complete and authoritative record. The original proceedings served defined purposes: the determination of misconduct, the imposition of regulatory consequences and contemporaneous public scrutiny through open justice. Disclosure occurred within a procedural framework and in the service of those objectives. By contrast, FOIA disclosure permits the same material to be reused, extracted, reframed, and republished—potentially years later, by different actors, and in contexts wholly divorced from the regulatory function. It is this capacity for secondary, untethered use and the enhanced authority conferred by official release that distinguish FOIA disclosure from journalistic reporting, even where earlier reports remain accessible.[85]From the perspective of those who participate in misconduct proceedings, it is reasonable to anticipate contemporaneous reporting of what occurs at a public hearing. It does not follow that they should be taken to anticipate, or to have accepted, the future disclosure by the State of a complete verbatim record, released as a matter of statutory entitlement and divorced from the procedural safeguards and context of the original hearing.[86]Nor does the publication of a detailed Outcome Notice undermine the Second Respondent’s position. Such a document does not place the entire evidential record into the public domain. It is a controlled articulation of what is necessary to discharge obligations of transparency and public accountability. It does not expose every aspect of the evidential process.[87]To equate the publication of an Outcome Notice with wholesale disclosure would be to misunderstand both the nature of the document and the balance Parliament has struck between transparency and the effective operation of regulatory systems.[88]These distinctions are material because the question under section 31 is whether disclosure in this form would, or would be likely to, prejudice the exercise of the relevant regulatory functions, notwithstanding the fact that elements of the proceedings were reported at the time. Open Justice[89]The Tribunal accepts that open justice is a principle of fundamental importance and that it underpins public confidence in adjudicative processes.[90]However, open justice does not mandate maximal disclosure in all circumstances. Even in courts, access to verbatim transcripts and recordings is regulated and is not automatic.[91]Open justice is satisfied in different ways, in different contexts. In police misconduct proceedings, it is fulfilled through the holding of public hearings, the publication of reasoned outcomes and scrutiny by the media.[92]In the present case, those elements were present to an exceptional degree. The Tribunal is not persuaded that the principle of open justice requires disclosure under FOIA of the transcript or recording of the hearing.[93]Drawing these matters together, the Tribunal is satisfied that section 31(1)(g) FOIA is engaged. The relevant protected interest is the exercise of statutory disciplinary and regulatory functions. The nature of the prejudice identified is a systemic chilling effect on the willingness of witnesses and participants to engage openly and candidly in future misconduct investigations. The Tribunal is satisfied that there is a clear and logical causal connection between disclosure under FOIA of a complete verbatim transcript or recording, with its permanent and unrestricted consequences, and that prejudicial effect. Assessing the matter prospectively and evaluatively, the Tribunal concludes that disclosure would at least be likely to result in such prejudice, in the sense that it would give rise to a real and significant risk of harm to the effective operation of the disciplinary regime.[2]Does the Public Interest in maintaining the exemption outweigh the public interest in disclosure?[94]The Tribunal now turns to the public interest balancing exercise. There is a substantial public interest in transparency in police disciplinary proceedings. The Tribunal does not understate that interest. Policing depends upon public trust and trust depends upon openness. We accept that the public interest in disclosure is strong and that the misconduct at issue was serious, rightly attracting intense public concern.[95]However, transparency is not an absolute value. The public interest in disclosure must be balanced against other public interests recognised by Parliament, including the effective functioning of disciplinary systems designed to uphold standards, ensure candour and protect the public.[96]In conducting that balance, we place weight on the significant degree of transparency that has already been achieved. The hearing was public. Members of the media attended and reported upon the proceedings. A detailed Outcome Notice was published (pages E142-E213). There is no suggestion that the process or its outcome was concealed from public scrutiny.[97]The Tribunal also considers the systemic consequences of disclosure under FOIA of disciplinary transcripts or recordings. Such disclosure would not affect only this case. Routine release of such material would likely alter expectations across the system and risk weakening the effectiveness of misconduct investigations, particularly where those investigations depend on witnesses' willingness to engage candidly and without fear of indefinite future exposure of their evidence in an official, permanent form.[98]We recognise that disclosure would provide some additional transparency beyond that already achieved. However, in light of the hearing's openness, the contemporaneous media scrutiny, and the published Outcome Notice, the additional benefit of disclosure would be limited. Against that modest incremental gain must be set the potential for wider, systematic harm to the effectiveness and candour of the misconduct regime.[99]In the Tribunal’s judgement, the public interest in preserving a robust, effective, and candid system for the investigation and adjudication of police misconduct outweighs the public interest in disclosure of the transcript or recording in this case.[100]The public interest favours maintaining the exemption under section 31(1)(g) FOIA.[3]Would disclosure of the requested information contravene the data protection principles such that information is exempt from disclosure by virtue of Section 40(2) FOIA?[101]The Appellant submits that disclosure of the requested information would not contravene the data protection principles for several reasons.[102]First, he submits that all personal data contained in the requested information was “manifestly made public” by the data subjects for the purposes of Article 9(2)(e) UK GDPR. He relies in particular on NTM and NTS v Google LLC and related authority, submitting that individuals who engage in serious misconduct adjudicated in public thereby make their personal data public.[103]Secondly, the Appellant submits that, insofar as the requested information includes personal data of individuals other than the officers subject to misconduct proceedings, those individuals participated voluntarily in a public hearing, and that police misconduct panels have no power of summons. It is said to follow that such individuals likewise made their personal data public.[104]Thirdly, the Appellant relies on the fact that the misconduct panel had statutory powers to sit in private or to impose reporting restrictions, that no such steps were taken, and that no participant appears to have applied for a private hearing. He submits that this further supports the conclusion that personal data was disclosed by the data subjects’ own choice.[105]Finally, the Appellant places reliance on BC v Chief Constable, Police Scotland, submitting that police officers have no reasonable expectation of privacy in material exposing their own misconduct, and that this conclusion applies with even greater force to material disclosed in a statutory public hearing.[106]The Tribunal accepts that Article 9(2)(e) UK GDPR provides an exception permitting processing of special category personal data where “the personal data have been manifestly made public by the data subject”.[107]However, the Tribunal does not consider that the scope or effect of that provision is as broad as the Appellant contends.[108]Whether personal data has been “manifestly made public” requires careful attention to context. The question is not merely whether data have entered the public domain at some point, but whether the data subject can fairly be said to have rendered them public in a manner that justifies subsequent processing divorced from the original setting, purpose and in all formats, by all actors, including disclosure by the State under a statutory access regime.[109]In the present case, personal data was disclosed within the bounded context of statutory misconduct proceedings, conducted for defined regulatory purposes and subject to a specific legal framework. Disclosure occurred for the purpose of adjudicating alleged misconduct and enabling contemporaneous public scrutiny through open justice.[110]The Tribunal is not persuaded that participation in such a process amounts to making personal data “manifestly public” so as to justify permanent, unrestricted disclosure under FOIA of a complete verbatim transcript or recording, released as an official State record and untethered from the original proceedings.[111]A further and substantial difficulty for the Appellant’s case under section 40 FOIA is that the requested information contains personal information relating to numerous individuals who were not the subject of disciplinary allegations. This includes witnesses, panel members, legal representatives, and administrative staff. Some witnesses were civilians; others were police officers whose conduct was not under scrutiny. Their personal data are interwoven throughout the transcript or recording as an intrinsic part of the proceedings. They consent has not been obtained.[112]The Tribunal does not accept that voluntary attendance at a public hearing equates to a decision to make one’s personal data public for all purposes.[113]Participation in a public hearing involves acceptance of contemporaneous observation and reporting within a defined process. It does not entail acceptance of unlimited secondary use of one’s personal data, potentially years after the event, by unknown third parties, and for purposes wholly unconnected with the regulatory function of the proceedings.[114]The absence of a power of summons does not alter this analysis. Voluntariness of attendance is not equivalent to consent to unrestricted future processing under FOIA, and the data protection framework does not treat the two as interchangeable.[115]The Tribunal accepts that the misconduct panel had statutory powers to conduct proceedings in private or to impose reporting restrictions, and that no such steps were taken. However, the fact is not determinative of the assessment required under section 40 FOIA.[116]The data protection assessment under section 40 is objective and forward-looking. It asks whether disclosure under FOIA, at the time of the request, would be lawful and fair. It does not depend on whether participants sought procedural protections during the hearing itself. The Tribunal does not consider that the absence of any application for a private hearing can properly be treated as consent—whether express or implied—to permanent, unrestricted disclosure by the State of a complete verbatim record.[117]The Tribunal accepts that BC v Chief Constable, Police Scotland is an authority for the proposition that police officers may have a reduced expectation of privacy in material exposing misconduct, particularly given their public role. However, that authority does not establish that disclosure under FOIA of a complete transcript or recording would necessarily be fair or lawful in the circumstances of the present appeal. Nore does address the position of witnesses and third parties whose personal data are embedded in the record but whose conduct was not under scrutiny. Fairness and proportionality[118]Taking all of these matters together, the Tribunal concludes that disclosure of the requested information under FOIA would not be fair within the meaning of the first data protection principle. Disclosure would involve the permanent and unrestricted dissemination of sensitive personal data in circumstances materially different from those in which the data were originally processed and would interfere disproportionately with the rights and freedoms of multiple data subjects. Although the Appellant’s interests in transparency are legitimate, disclosure is not necessary to achieve those interests in circumstances where a substantial degree of openness has already been secured (as set out above). In those circumstances, disclosure would be unlawful and would contravene the data protection principles.[119]The Tribunal therefore concludes that the transcript or audio recording of the police misconduct proceedings is exempt from disclosure by virtue of section 40(2) FOIA. Conclusion[120]In accordance with the binding directions of the Upper Tribunal, and for the reasons set out above, the Tribunal concludes that disclosure of the transcript or audio recording of the police misconduct proceedings is exempt from disclosure under section 31(1)(g) FOIA and, in any event, under section 40(2) FOIA.[121]The Tribunal further concludes that none of the Appellant’s grounds of appeal disclose an error of law in the DN dated 5 April 2021. The Commissioner was therefore entitled to reach the conclusion he did and that the DN was correct.[122]The appeal is dismissed. Signed Date: Judge Kiai 29 April 2026