Email sent – Sat 08/07/2017 12:12
Dear Sir
Under the process of the FOIA 2000 please review your
decision notice because the Met Police have now confirmed the
Olympic death was suicide and this is the first time any public authority
has confirmed suicide. You have also claimed there are ongoing investigations into this death. It is now apparent the HSE and Met Police
made this suicide decsision on the same day as the death, which as I am
sure you can appreciate is impossible to do do without a coroner’s report. There is no coroner’s report either. Upon completion of your review, I intend to alert the ICO for regulatoty failures of the Met
Police and FOIA. I have included the ICO in my mailing list. For the record, it has taken the Met Police 30 months to confirm the Balfour Beatty employee committed suicide, but as your letter will prove there
is no tangible evidence. At best, I consider your FOIA response is
disingenuous and at worst, part of a wider conspiracy between the Met Police
/HSE and Balfour Beatty to pervert the course of Justice and circumvent the
FOIA,ie section 77. I suggest the latter.
I have included the Met Police Complaints Team also. It is absolutely imperative
and in the interest of justice for you to advise me when and who from the Met
Police reached this suicide verdict – ie the exact time and date of the Met
Police suicide decision. I put you on warning that this FOIA is also protected
by the Magya Helsinki Bizottsag case from the Grand Chamber, which gives me
rights to unfettered access to your records
With thanks
Alan M Dransfield
FOIA Campaigner and Social Watchdog
Dear
Mr Dransfield
Freedom of
Information Request Reference No: 2017030000797
I write in connection with your
request for information which was received by the Metropolitan Police Service
(MPS) on 18/03/2017. I note you seek access to the following information:
- REQUEST 1:
- Please provide me with the name of the person who
fell off the Olympic Stadium Roof on Sun 28th June 2015 07-30hrs.
- Please also provide a copy of the Notes Taken by
your officers attending the scene. The exact location was the Olympic
Stadium Construction Site owned by Balfour Beatty
- REQUEST 2: Under protection of the FOIA please
provide me with PDF copies of the following information about the Fatal
Accident which took place at the Olympic Stadium on Sun 28th Jun 2015
at 07/30.
- 1, Name and badge # of officer(s) attending site
- 2. Who informed the police of the incident
- 3.Copy of the Investigation Report.
- 4. Did the Met police or the HSE assume the role of
Primacy.
Please accept my apologies for
the delay in responding to your request and any inconvenience this may have
caused.
SEARCHES TO LOCATE
INFORMATION
To locate the information
relevant to your request searches were conducted with Newham Borough and with
the MPS Directorate of Media and Communications. The searches located
information relevant to your request.
DECISION
I have today decided to disclose
some of the requested information. Some data has been withheld as it is
exempt from disclosure and therefore this response serves as a Refusal Notice
under Section 17 of the Freedom of Information Act 2000 (the Act). Please
see the legal annex for further information on the exemptions applied in
respect of your request.
REASONS FOR DECISION
This matter relates to a suicide
and the MPS do not believe details of this matter should be made public.
Although the deceased are not protected under the Data Protection Act in
matters such as this we need to consider how the information we have recorded
relates to other living individuals. Information concerning a deceased
individual’s life also relates to any surviving relatives, such as his or her
partner, children, parents, siblings and other family members. The
personal data exemption (section 40) has been applied in respect of any
information which is the personal data of a living individual – this includes
accounts relating to the deceased not only from family members but also friends
and colleagues. Clearly in the case of a sudden death, suicide or
otherwise, the majority of the information gathered in respect of such a matter
will be gained from third parties.
In addition to the Section 40
exemption the MPS have considered the distress disclosure of this nature may
cause to individuals who were connected to the deceased. In light of this
we will also apply the section 38 exemption which relates to Health and Safety.
Finally, information recorded in
respect of this incident was held for the purpose of an investigation.
That exemption can apply to matters that are closed as well as those that are
ongoing. Our investigation focused firstly on ruling out any criminal
offences and then moved on to locating and informing the deceased person’s next
of kin. The MPS would not disclose our investigative material in respect
of a sudden death and have therefore cited section 30 in respect of this
request.
DISCLOSURE AND RESPONSE TO
QUESTIONS
1) Please provide me with the
name of the person who fell off the Olympic Stadium roof on Sun 28th June 2015
07-30hrs.
The MPS withhold this data by
virtue of sections 38 (health and safety) and 30 (investigations).
2) Please also provide a copy of
the notes taken by your officers attending the scene.
The MPS withhold this data by
virtue of sections 30 (investigations), 38 (health and safety) and 40 (personal
data).
3) Name and badge # of
officer(s) attending site.
The MPS withhold that data by
virtue of section 40 (personal data).
4) Who informed the police of
the incident.
I can confirm that the MPS were
called by the deceased person’s employer. The MPS will withhold the name
of this individual by virtue of section 40 (personal data).
5) Copy of the Investigation
Report.
The MPS withhold this data by
virtue of sections 30 (investigations), 38 (health and safety) and 40 (personal
data).
6) Did the Met police or the HSE
assume the role of Primacy.
HSE were called and attended the
venue however the MPS assumed responsibility for the investigation. The
MPS were advised by HSE that there were no corporate manslaughter breaches in
respect of this suicide.
Should you have any further
enquiries concerning this matter, please contact me on 0207 161 3583 or via
email at david.edwards8@met.police.uk,
quoting the reference number above.
Yours sincerely
David Edwards
Information Rights Unit
LEGAL ANNEX
Section 17(1) of the Act
provides:
(1) A
public authority which, in relation to any request for information, is to any
extent relying on a claim that any provision in part II relating to the duty to
confirm or deny is relevant to the request or on a claim that information is
exempt information must, within the time for complying with section 1(1), give
the applicant a notice which-
(a) states the fact,
(b) specifies the exemption in
question, and
(c) states (if that would not
otherwise be apparent) why the exemption applies.
Section
30(1)(a)(i)(ii)&(b) of the Act provides:
(1)
Information held by a public authority is exempt information if it has at
any time been held by the authority for the purposes of—
(a) any investigation which the
public authority has a duty to conduct with a view to it being ascertained—
(i) whether a person should be
charged with an offence, or
(ii) whether a person charged
with an offence is guilty of it,
(b) any investigation which is
conducted by the authority and in the circumstances may lead to a decision by
the authority to institute criminal proceedings which the authority has power
to conduct,
Section 30 is a class based
exemption therefore I am not required to conduct a prejudice test.
However it is a qualified exemption and is therefore subject to the public
interest test.
I would like to point out that
almost all of the information held in respect of this matter is section 30
material. To clarify, the answers to your questions – with one exception
– are contained within reports and notes that exist for the purpose of
investigating a potential criminal offence. The exception here is the
details of the officers attending the incident, that data can be extracted from
records that are not held for the purpose of an investigation i.e. from officer
duty records. I feel this is an important point to make because data such
as the deceased individual’s name may not immediately appear to be covered by
section 30 however that information is only held by the MPS for the purpose of
the investigation. To elaborate on this the MPS do not keep records on
all individuals who pass away, only on those which are sudden or unexplained
deaths as these matters could be linked to criminal acts.
In my consideration of this
exemption I have drawn upon advice from the Information Commissioner’s Office
(ICO) and this advice can be found at the following link: https://ico.org.uk/media/for-organisations/documents/1205/investigations-and-proceedings-foi-section-30.pdf.
Paragraph 15 of the guidance
states “It is not necessary that the investigation leads to someone
being charged with, or being convicted of an offence. However, the purpose of
the investigation must be to establish whether there were grounds for charging
someone, or if they have been charged, to gather sufficient evidence for a
court to determine their guilt. Section 30(1)(a) will still protect information
if a police investigation fails to establish that an offence has been
committed, or concludes that there is insufficient evidence to charge
anyone.”.
In light of the above it is
correct that the information held in respect of this matter is considered under
section 30, even though the death has been ruled as a suicide.
Having determined that the
information does fall under section 30 I am mindful of the ICO’s guidance at
paragraph 6. “Section 30 is a class based exemption. Information
simply has to fit the description contained in section 30 to be exempt. There
is no need for the information to prejudice, for example, the investigation or
set of proceeding that it was obtained for. However, the exemption is subject
to the public interest test. Where there would be no harm in releasing the
information, or the public interest arguments in favour of disclosure outweigh
those in favour of maintaining the exemption, it will need to be disclosed.“.
Therefore I will now consider the public interest test.
Public Interest Test
Public interest factors
favouring disclosure
The deceased was an employee of
a major construction company and was engaged in work that was largely funded by
the public purse. Clearly there is a high level of public interest
relating to the safety of individuals involved in such work. The public
should be made aware if there are any failings in respect of safety not only
for the workers undertaking duties at such sites, but also so the public can
consider whether large and high profile public contracts are awarded to
companies which safeguard their employees and minimise any risk of harm to
them.
Public interest factors
favouring non-disclosure
Disclosure of information that
outlines our investigation into deaths under these circumstances must be
restricted. Although in this instance there were no offences clearly this
would not be the outcome for all such investigations. If we were to place
details of the investigation in the public domain we would be revealing the
checks undertaken in order to rule out criminal offences. It cannot be in
the best interests of the public to reveal such information as ultimately it
could lead to offences being incorrectly recorded, and potentially, to
individuals evading apprehension.
Balance Test
Having considered the arguments
above I give weight to the factors favouring non-disclosure. This is
because the matter was investigated both by the MPS and by the Health and
Safety Executive (HSE) and it was concluded that no offences took place.
In light of this the arguments favouring disclosure are weakened as there were
no failings by the deceased individual’s employers. I have decided that
the exemption provided under section 30(1)(a)(i)(ii)&(b) should be
maintained in this instance.
Section 38(1)(a)&(b)
of the Act provides:
(1)
Information is exempt information if its disclosure under this Act would,
or would be likely to—
(a) endanger the physical or
mental health of any individual, or
(b) endanger the safety of any
individual.
This exemption is both prejudice
based and qualified therefore I am required to conduct a prejudice test and a
public interest test
Prejudice Test
This exemption applies where
disclosure would or would be likely to endanger the physical or mental health
of any individuals. The matter you have asked about relates to a suicide
and, I believe, it is important to differentiate this from an accidental death.
I feel there is a substantial risk to the mental health, and
subsequently the physical health, of individuals suffering bereavement due to a
suicide.
Bereavement due to any cause
will be one of, if not the most, difficult periods in any of our lives.
Feelings of grief can be completely overwhelming, so much so that as such time
it is not uncommon for individuals to neglect themselves or others. The
NHS website provides information for the recently bereaved and states that the
death of a loved one can be devastating (http://www.nhs.uk/Livewell/bereavement/Pages/coping-with-bereavement.aspx).
In considering this matter I
have viewed the website of UK charity Survivors of Bereavement by Suicide which
states “Bereavement by suicide shares characteristics with other
bereavements and it is also different.” It goes on to say “The
grieving process is often complicated and typically lasts longer than other
types of bereavement – significant effects may still be felt for many years
after the death. We are all individuals and each person will have had a unique
relationship with the person who died – there is no single or correct way to
experience bereavement. However there are many common reactions and
factors in bereavements by suicide.“.
The above can be viewed on the
Survivors of Bereavement by Suicide website http://uk-sobs.org.uk/ and in particular here http://uk-sobs.org.uk/suicide-bereavement/how-suicide-can-affect-you/how-suicide-affects-you/.
I don’t feel this response requires detailed research in to bereavement,
however I would draw your attention to the paragraphs on post traumatic stress
and on survivors questions.
I have again considered the
ICO’s guidance in respect of this exemption (see https://ico.org.uk/media/for-organisations/documents/1624339/health-and-safety-section-38-foia.pdf).
In respect of the prejudice or endangerment I note that the threshold
should be defined as either “would endanger” or “would be likely
to endanger” the physical or mental health of any individual – see
paragraph 13. In this instance I feel disclosure would be likely to
endanger mental health of family members and friends of the deceased.
While this is the lower threshold I do feel that this risk is
significant.
Before going on to consider the
public interest test I would also like to refer you to paragraph 6 of the
linked guidance which outlines the main provisions of this exemption and
specifically states that section 38 may relate to: “someone who has
died (and is therefore not covered by the personal information exemption) where
disclosure might endanger the mental health of surviving relatives,
particularly if they had been unaware of it“.
In this instance family members
would be likely to be aware of the death, with the next of kin having been
identified and informed by the MPS. However there will be individuals
from the deceased person’s community, previous working partnerships and friends
that may be unaware of the death. While the section 38 matters are
concerned mainly on those individuals who were close to the deceased (including
children, siblings, and parents) the potential for distress would be felt by
individuals that are far outside the deceased’s immediate family and friends.
Public Interest Test
Public interest factors
favouring disclosure
Focusing specifically on the
section 38 matters, disclosure may assist individuals who are connected to the
deceased and wish to establish further details concerning his death.
Furthermore disclosure may help raise awareness of suicide and mental health
matters which could improve understanding and help individuals seek the
assistance they need.
Public interest factors
favouring non-disclosure
I believe that I have provided a
tangible link between disclosure and the potential endangerment of individuals’
mental and physical health. It is not in the public interest to disclose
information that would risk this sort of endangerment. Given the nature
of this subject it seems unimportant to focus on wider public interest matters
however that is the purpose of the public interest test and therefore I will
provide an explanation. It would not be in the best interests of the
public as a whole if the MPS were to disclose information that would be likely
to have an adverse effect on an individual’s mental health. This could
lead to endangerment of their physical health and ultimately these matters have
a negative impact on public resources such as police forces and NHS.
Balance Test
I feel that the arguments
favouring non-disclosure carry more weight than the arguments favouring
disclosure. The latter is weakened by the fact that members of the family
have been supported by the MPS and would be able to seek information concerning
the death via discussion and private disclosure if this was desired.
Furthermore there has been significant awareness campaigns in relation to mental
health matters recently, for example the Heads Together campaign. I do
not feel that disclosure of details concerning a specific suicide would
significantly add to public awareness. In conclusion therefore, I have
decided that the public interest favours the application of the section 38
exemption.
Section
40(2)&(3)(a)(i) provides:
(2)
Any information to which a request for information relates is also exempt
information if—
(a) it constitutes personal data
which do not fall within subsection (1), and
(b) either the first or the
second condition below is satisfied.
(3)
The first condition is—
(a) in a case where the
information falls within any of paragraphs (a) to (d) of the definition of
“data” in section 1(1) of the Data Protection Act 1998, that the disclosure of
the information to a member of the public otherwise than under this Act would
contravene—
(i) any of the data protection
principles
The exemption provided under
section 40 becomes absolute and class based in cases where disclosure would
contravene the principles of the Data Protection Act. Therefore I am not
required to provide a prejudice test or public interest test. However, I
will explain how and why this exemption has been applied.
This exemption has been cited in
respect of two types of personal data, firstly the exemption applies in respect
of data relating to members of the public. By this I am referring to the
statements given by those contacted by the MPS in respect of this matter and
the names of these individuals. Secondly this exemption has been applied
to the details of the officers’ attending this incident.
I have drawn on guidance from
the ICO in respect of this exemption and this guidance can be found here: https://ico.org.uk/media/for-organisations/documents/1213/personal-information-section-40-and-regulation-13-foia-and-eir-guidance.pdf.
The ICO guidance outlines the
considerations that need to be made in respect of requests that concern
personal data. The “overview” is useful in this regard and
states “If the information constitutes the personal data of third
parties, public authorities should consider whether disclosing it would breach
the data protection principles. The only one which is likely to be relevant is
the first principle. The public authority can only disclose the personal data
if to do so would be fair, lawful and meet one of the conditions in Schedule 2
of the DPA (and in the case of sensitive personal data, a condition in Schedule
3)“.
I can confirm that the principle
that would be breached if this personal data was to be disclosed would be
principle one, fair and lawful processing.
The ICO specify that authorities
are to consider whether “processing”, in this case the disclosure of
personal data, is fair and only go on to consider whether the disclosure is
lawful if it passes this fairness test. This is outlined in further
detail in paragraphs 41 – 43.
Paragraph 44 states that
fairness would be difficult to define but will usually mean considering the
following:
1) whether the information is
sensitive personal data;
2) the possible consequences of
disclosure on the individual;
3) the reasonable expectations
of the individual, taking into account: their expectations both at the time the
information was collected and at the time of the request; the nature of the
information itself; the circumstances in which the information was obtained;
whether the information has been or remains in the public domain; and the FOIA
principles of transparency and accountability;
4) whether there is any
legitimate interest in the public or the requester having access to the
information and the balance between this and the rights and freedoms of the
individuals who are the data subjects.
I will consider these points in
turn beginning with sensitive personal data. I note that sensitive
personal data is defined by section 2 of the Data Protection Act and there are
8 categories of data that are considered to be classed as sensitive. It
is my opinion that the witness statements and other material gathered from
living individuals do not fall within the legal definition of sensitive
personal data. However I would like to point out that while this
information does not fit the legal definition of sensitive it is, in my
opinion, of a sensitive nature.
The next consideration is the
possible consequences of disclosure on the individual. This matter ties
in with the section 38 arguments above. The ICO guidance gives examples
of matters that would have clear consequences on the individual and matters
that are not so clearly evidenced. One of the examples given is that some
material may pose a risk to the data subject’s emotional well-being. The
ICO guidance goes on to state that the higher the level of distress the more
likely it is that disclosure would be considered unfair. I have outlined
the potential risks to the health of living individuals connected with this
matter, highlighting the significant consequences that may arise from
disclosure.
When looking at possible
consequences of disclosure one of the factors is the level of information that
is already in the public domain. In respect of this matter I have
reviewed the MPS press lines and searched for media articles that are in the
public domain. I note that the MPS have provided only limited information
in respect of this incident, for example we have not provided the deceased
individual’s name. Clearly there was an active decision to keep details
to a minimum and, as the deceased are not covered by the Data Protection Act,
this decision would have been taken in order to preserve the investigation and
protect individuals connected to the deceased from any unnecessary emotional
distress.
The third consideration relates
to the reasonable expectations of the data subject. The ICO guidance
covers various aspects in respect of reasonable expectations but importantly
here are the circumstances in which the personal data was obtained, a police
investigation into a death. If an individual provides a statement to the
police they would expect that this information would not be publically
disclosed/published on our website. I believe that this would be their
expectation at the time the information was collected and this would not change
with the passage of time. The information provided to the police would be
very personal in its nature outlining the individual’s connection to the
deceased, their thoughts of the deceased and their comments on the deceased
person’s state of mind. It is very clear to me that the individual’s
providing such statements would not expect to see their comments/the content of
the statements to be openly published.
The final consideration relates
to the balance between the legitimate interests in the public having access to
the data and the rights and freedoms of the data subjects. Although there
are similarities between this balancing test and a public interest test the ICO
guidance makes clear the two are not the same. Paragraph 85 points out
that “there is no assumption of disclosure as there is with qualified
exemptions. Personal data can only be disclosed if to do so would not breach
the DPA principles. If the public authority discloses personal data in
contravention of DPA principles, it is in breach of its duty as a data
controller.“.
There are legitimate interests
in disclosure and these have been picked up in the public interest tests I have
conducted in respect of the other exemptions applied. To reiterate those
arguments were not compelling, in respect of the public safety argument the
concerns of the public can be reassured by the knowledge that both the MPS and
the HSE concluded that there were no offences committed. Furthermore it
was not felt that disclosure of the specific detail of a single suicide would
make significant improvements in the awareness of suicide and mental health issues.
It is my opinion that there is not sufficient legitimate interest in disclosure
to justify the disclosure of personal data.
In conclusion I have decided
that disclosure of the personal data collected in respect of this matter would
not be considered fair processing. As this has not passed the fairness
test I will, in line with the ICO’s guidance, not go on to consider whether
disclosure would be lawful as defined by schedule two of the Data Protection
Act.
In respect of the personal data
of the officers’ attending the matter, the above process also applies to this
data. I have considered the above in respect of officer data however I do
not see the value in repeating that in full here and therefore I will provide a
summary of my considerations. In respect of the consequences of
disclosure the above points would be less likely to apply for police officers,
particularly as the suicide was not witnessed by officers and they had no
connection to the deceased. However there would still be a strong
expectation from officers that their personal data would not be
disclosed. The ICO provide specific guidance relating to requests for the
personal data of public authority employees and that guidance can be found at
the following link: https://ico.org.uk/media/for-organisations/documents/1187/section_40_requests_for_personal_data_about_employees.pdf.
In respect of the reasonable
expectations of the employee, the ICO point out that seniority is a key
consideration. The MPS publish details of our senior management team both
at local level and in at senior leadership level. Senior employees expect
that their position carries a greater level of accountability, however response
officers that are assigned to emergency calls, and detectives that support
those officers, do not expect the same level of public scrutiny in respect of
their day-to-day roles. Furthermore, although response officers are
public facing in so much as they deal with the public on a daily basis this is
not the same as being a spokesperson for the authority. Finally there is
no policy or other indication in the MPS that an officer’s daily movements
would be disclosed upon request. Therefore officers would not expect us
to provide a list of calls they had attended and neither would they expect us
to disclose a list of names in relation to a specific incident.
In light of the above I have
applied the section 40 exemption to the details of the officers attending this
incident because such a disclosure would not be consistent with their
reasonable expectations. In this regard I am mindful of the ICO comments
mentioned earlier in this response which differentiates personal data
considerations from regular public interest tests. Specifically, in that
there is no assumption of disclosure and that unless there are justifiable
reasons for the disclosure of personal data any such action would be a breach of
the DPA principles and therefore our duty as a data controller.
In complying with their
statutory duty under sections 1 and 11 of the Freedom of Information Act 2000
to release the enclosed information, the Metropolitan Police Service will not
breach the Copyright, Designs and Patents Act 1988. However, the rights of the
copyright owner of the enclosed information will continue to be protected by
law. Applications for the copyright owner’s written permission to
reproduce any part of the attached information should be addressed to MPS
Directorate of Legal Services, 10 Lambs Conduit Street, London, WC1N 3NR.
COMPLAINT RIGHTS
Are you unhappy with how your
request has been handled or do you think the decision is incorrect?
You have the right to require
the Metropolitan Police Service (MPS) to review their decision.
Prior to lodging a formal
complaint you are welcome to discuss the response with the case officer who
dealt with your request.
Complaint
If you are dissatisfied with the
handling procedures or the decision of the MPS made under the Freedom of
Information Act 2000 (the Act) regarding access to information you can lodge a
complaint with the MPS to have the decision reviewed.
Complaints should be made in
writing, within forty (40) working days from the date of the refusal notice,
and addressed to:
FOI Complaint
Information Rights Unit
PO Box 57192
London
SW6 1SF
foi@met.police.uk
In all possible circumstances
the MPS will aim to respond to your complaint within 20 working days.
The Information Commissioner
After lodging a complaint with
the MPS if you are still dissatisfied with the decision you may make
application to the Information Commissioner for a decision on whether the
request for information has been dealt with in accordance with the requirements
of the Act.
For information on how to make
application to the Information Commissioner please visit their website at www.ico.org.uk.
Alternatively, write to or phone:
Information Commissioner’s
Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Phone: 0303 123 1113
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