Kevin Bridgewood v The Information Commissioner & Anor

Background to the Appeal

1. This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 18 July 2024 (IC-298177-R1T1), the (“Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (” FOIA “). It concerns a request by the Appellant to the Second Respondent, the Equality and Human Rights Commission (“EHRC”) for information relating to their response to an earlier complaint made by the Appellant to EHRC.

2. The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).

3. The Appellant had previously complained to the EHRC on 25 October 2023, regarding a potential breach of the Equalities Act 2006 and the Human Rights Act 1998, in 2016 on the part of Staffordshire Police (“the Police”), & the Midlands Partnership NHS Foundation Trust that runs St Georges Mental Health Facility, Stafford ("the Trust"). The complaint to the EHRC relates to an incident in 2016 in which a person at the Police provided the Trust with a list of what the organisation deemed to be “persistent complainants”. The person asked the Trust whether any of the individuals on the list were “known to mental health services and what for.” In response, the Trust appears to have shared some information with the Police, which was determined by the Commissioner to be in breach of the Data Protection Act 1998 , on 12th September 2018 (ICO Case Ref No: RFA0699138). The Trust made a without prejudice settlement payment to the Appellant, in 2019, in relation to the complaint. The Request

4. On 6 March 2024, the Appellant wrote to the EHRC and requested the following information (the “Request”): “please provide; 1: Your decision on any actions taken or intended actions to be taken. 2: Copies of any documents issued to and/or received from the organisations identified above regarding the described breach of the ECHR? 3: If no actions have been commenced or will not be commenced then the legal reasons and rationale as to why that position has been adopted?.”

5. The EHRC responded on 26 February 2024. It refused to confirm or deny holding any information and relied on section 31 of FOIA in order to do so. It upheld this position following an internal review. The Decision Notice

6. The Appellant complained to the Commissioner on 25 April 2024. The Commissioner decided: a. The exemption in section 31(3) was engaged. This was on the basis that there is a reasonable chance that confirming or denying that the EHRC held the requested information would, in itself, make it harder for the EHRC to carry out its functions. At the point that the request was responded to, it was not unreasonable to suppose that the public authority might either, have yet to decide whether to take regulatory action, or might have decided to take action but still been in the process of preparing its investigation, prior to contacting the organisation complained about. b. The balance of the public interest should favour maintaining the exemption. This is primarily because at the time the request was responded to, the public authority may (had it decided to carry out an investigation), have still been carrying out preparatory and investigatory work. The public authority needs a private space to consider and prepare for an investigation without the subject of the investigation knowing. It is not in the public interest to harm the public authority’s ability to investigate thoroughly and fairly.

7. The Commissioner recognised that that the EHRC breached section 17 as it failed to issue an adequate refusal notice, however, the Commissioner did not require further steps to be taken. The Appeal and Responses

8. The Appellant appealed on 18 July 2024. Their grounds of appeal largely seek to rely on the alleged criminality and wrongdoing of the Police and the Trust involved in the complaint to the EHRC and the perceived lack of the EHRC to meet their legal duties, to uphold the rights breached by those organisations.

9. In relation to the Request itself, the Appellant appeals on the basis that the information should be released as there will be no harm to the EHRC’s functions, there can be no disadvantage or prejudice in releasing the information sought, but even if there was, it has been created by the EHRC’s own failure to obtain the evidence. The EHRC had had at the time of the Request, ample time to decide whether to investigate and to prepare the investigation. It is a matter of integrity, honesty and transparency surrounding the EHRC’s remit to hold other bodies account for their actions in breaching the Equality Act and/or the Human Rights Act. The reality of this issue is that it is not confined to the 16 known victims in this case; it impacts on the whole of society, in that staff from two trusted organisations have conspired to secretly access NHS Records.

10. The Commissioner’s Response maintains that the Decision Notice was correct. The Commissioner remains satisfied that confirmation or denial whether the requested information is held would be likely to prejudice the EHRC’s function of ascertaining whether any person has failed to comply with the law under the Equality Act and that therefore the exemption under section 31(3) is engaged. The strongest public interest factor is ensuring that the EHRC’s ability to investigate the issue highlighted by the Appellant in their grounds of appeal, is not hampered in any way. The Commissioner further considers that he was correct to give weight to the arguments from the EHRC, as it is the public body entrusted by Parliament to make decisions regarding the regulation of the Equality Act.

11. The EHRC’s Response also maintains that reliance on Section 31(3) was correct. If the exemption was not applied consistently, any person could submit a series of FOIA requests, analyse the results and discern, by process of elimination, what information the EHRC did and did not know about any individual or organisation. Any person or organisation could then seek to destroy evidence or otherwise frustrate a future investigation. The prejudice caused (by disclosing or confirming or denying information is held about enforcement activity) is to their ability to investigate at large, not just prejudice to prospective investigations about specific organisations who may or may not be the subject of a complaint or request for information under FOIA. This is the prejudice to their enforcement activity that they seek to prevent by applying the exemption consistently. The EHRC categorically denies it has been negligent in dealing with this issue or has “manipulated the exemption” to defeat the Request. The EHRC has valid reasons for applying the exemption and applying it consistently.

12. The EHRC reiterates that it will always be in the public interest for it to be able to regulate effectively. Parliamentary Committees provide additional scrutiny of the EHRC’s work in the public interest, and it is not in the public interest for that work to be impeded. Applicable law

13. The relevant provisions of FOIA are as follows. General right of access to information held by public authorities. (1) Any person making a request for information to a public authority is entitled- (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him. Effect of the exemptions in Part II. (2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that- (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Section 31 Law enforcement. (1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice- … (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, … (c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise, (3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1). Section 58 Determination of appeals (1) If on an appeal under section 57 the Tribunal considers- (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

14. The approach to be taken prejudice-based exemptions was set out in the First Tier Tribunal decision of Hogan and Oxford City Council v Information Commissioner [2011] 1 Info LR 588 , as approved by the Court of Appeal in Department for Work and Pensions v Information Commissioner : [2017] 1 WLR 1 a. Firstly, the applicable interests within the relevant exemption must be identified. b. Secondly, the nature of the prejudice being claimed must be considered. It is for the decision maker to show that there is some causal relationship between the potential disclosure and the prejudice, and that the prejudice is "real, actual or of substance". c. Thirdly, the likelihood of occurrence of prejudice must be considered. Whether disclosure "would" cause prejudice is a question of whether this is more likely than not. To meet the lower threshold of "would be likely to" cause prejudice, the degree of risk must be such that there is a "real and significant risk" of prejudice, or there "may very well" be prejudice, even if this falls short of being more probable than not.

27. Section 31 is a qualified exemption, meaning that the information should only be withheld if the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Issues and evidence

15. The issue is whether the EHRC was entitled under section 31(3) FOIA to neither confirm nor deny whether it held the requested information. The Tribunal will decide: a. Was section 31(3) FOIA engaged? b. If so, did the public interest in maintaining the exemption outweigh the public interest in confirming or denying that the requested information is held?

16. By way of evidence and submissions, we have read and considered an agreed bundle of open documents, which includes the Appeal, Responses, and supporting documents from the Appellant. We have also read and considered a closed bundle.

17. As part of the open bundle, the Respondents provided redacted copies of two emails: one from the Commissioner seeking further clarification from the EHRC regarding the Request, and the EHRC’s reply. Those two emails were provided in full, on a confidential basis to the Tribunal. They are the only documents in the closed bundle. The Tribunal has not seen any general information that falls within the scope of the Request, as the EHRC relies on section 31(3) FOIA to neither confirm or deny it holds any responsive information. The Tribunal has also considered whether the redactions to the emails provided should be maintained under Sections 31(1)(g) and 31(2) (a) and (c) FOIA. Discussion and Conclusions

18. In accordance with section 58 FOIA, our role is to consider whether the Commissioner's Decision Notice was in accordance with the law. As set out in section 58(2) FOIA, we may review any finding of fact on which the Decision Notice was based. This means that we can review all of the evidence provided to us and make our own decision. We deal in turn with the issues. Was section 31(3) FOIA engaged?

19. The Tribunal considered whether informing the public under FOIA that the EHRC did or did not hold the requested information would, or would be likely to, prejudice the EHRC’s exercise of its functions. The relevant purposes here are the purpose of ascertaining whether any person has failed to comply with the law, or ascertaining whether circumstances which would justify regulatory action, in pursuance of any enactment that exists or may arise.

20. Any disclosure made under FOIA is to the world at large and therefore any likely prejudice is to be assessed on this basis. Information should only be disclosed under FOIA if it would be disclosed to any person who asked. Whilst the Tribunal is sympathetic to the Appellant’s personal circumstances and understands that they have a vested personal interest in the complaint made to the EHRC, the Tribunal cannot determine any wrongdoing on the part of external organisations or whether the EHRC should or should not have acted on any information provided to them by the Appellant. The Tribunal can only determine whether the Commissioner’s decision to uphold the exemption relied on by the EHRC, so that they might neither confirm nor deny they hold the information requested, was correct in law.

21. The duties and powers of the EHRC are set out in Part 1 of the Equality Act 2006 which include instituting inquiries (section 16), or investigations of whether or not a person has committed an unlawful act (section 20). The EHRC has power to give a person an ‘unlawful act notice’ if the EHRC is satisfied that that person has committed an unlawful act - section 21(1). The powers are discretionary and provide that the EHRC may take certain regulatory action. The powers are granted to enable the EHRC to exercise its statutory function for, inter alia, the purposes identified in section 31(2)(a) FOIA (ascertaining whether any person has failed to comply with the law), and section 31(2)(c) FOIA (ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise).

22. The applicable interests within this exemption are ensuring that the EHRC can carry out these functions effectively in line with its general duty in section 3 of the Equality Act 2006 . The EHRC is the regulator tasked with encouraging and supporting the development of a society which respects equality and human rights. In carrying out this function, it relies on collecting information and making strategic decisions as to whether and when to exercise its powers of inquiry or investigation.

23. We are satisfied that there is a causal relationship between the EHRC confirming or denying it holds the requested information and the feared prejudice to its effective function, and that such prejudice is "real, actual or of substance”.

24. For the EHRC to confirm or deny that it holds information responsive to any of the three parts of the Request would, in our view, tend to reveal whether regulatory action is being undertaken or in prospect.

25. In relation to the first part of the Request (for the EHRC’s decision on any actions taken or intended actions to be taken) we accept that confirmation of such actions or intended actions might encourage affected parties to destroy, alter or conceal relevant evidence. Denial might have a similar effect, that is to say, an affected party may take the opportunity while they are able, to destroy evidence, apparently safe in the knowledge that there is no current or intended regulatory action. Such destruction may not even be undertaken in bad faith, but in an honest belief that the evidence is no longer required. Whatever the reason for destruction, the EHRC is then prevented from fully effective investigation at any point in the future. Moreover, confirmation or denial, if not consistently applied in this context, may give insight into those matters which the EHRC may or may not tend to investigate and pursue, and enable a pattern to be identified, indicating areas of negative behaviour which are more or less likely to face regulatory scrutiny, and potentially encouraging the latter.

26. In relation to the second part of the Request (for copies of any documents issued to and or received from the police and the Trust regarding the described breach of the Equalities Act. Confirmation or denial that such documents were held would, in our view, be likely to frustrate the EHRC’s function for the same reasons as described above in relation to the first part of the Request, and, specifically, its ability effectively to collate information if parties were to appreciate that the fact of their having received or provided documents in relation to a relevant breach and such documents being retained by the EHRC, were to be made public.

27. In relation to the third part of the Request (the legal reasons and rationale as to why no action has been, or will be, commenced): confirming or denying that information as to the legal reasons and rationale for not taking action is held, would, in our view, work to frustrate the EHRC’s function for the same reasons we have identified above.

28. We consider that such prejudice, in the context of any and all of the three parts of the Request, consisting as it does of impediment to the EHRC’s investigatory process and strategic decision-making and affecting its overall function and effectiveness in the discharge of its statutory remit, a is a prejudice which is real and of substance.

29. We consider that such prejudice is likely. In a society where an organisation such as EHRC has been required to be established for the purposes of the societal benefits stated in the Equality Act and which, to that end, Parliament has seen fit to endow with wide-ranging regulatory and enforcement powers, we consider it likely that those responsible for the sort of behaviour the legislation is intended to prevent, would take advantage of the EHRC’s confirmation or denial of holding the requested information. That would be likely to result in the adverse effects we have identified.

30. It would also undermine trust in the EHRC’s regulatory process if details about complaints (whether valid complaints or not), or information gathered to decide whether to take regulatory action, were released under FOIA.

31. Moreover, the desirability of a consistent use of neither confirm nor deny is well established. Deviation from that consistency would undermine reliance on the exemption. The fact that the Appellant in this case is also the original complainant to the EHRC, and is, effectively, making a request about his own complaint, does not change the position. The likelihood of the instant and wider prejudices we have identified persists. The fact that the Appellant has himself speculated about what the information, if confirmed as held, could show, reinforces the notion that there is a substantial risk of a mosaic effect, in that if parties suspected that they may be subject to regulatory action, now or in the future, they could take steps to conceal evidence.

32. We therefore find that the exemption under section 31(3) FOIA is engaged. For the EHRC to confirm or deny it held the requested information would be likely to prejudice the EHRC’s exercise of its functions. Does the public interest weigh in favour of disclosure?

33. We have carefully balanced the public interest considerations for and against confirmation or denial. We have borne in mind the Appellant's point that the EHRC should be held to account and the lack of action into their complaint suggests more wrongdoing by the EHRC.

34. Whilst the main principle behind FOIA is that people have a right to know about the activities of public authorities, unless there is a good reason for them not to and the assumption is in favour of disclosure, Parliament intended to provide exemptions to protect public sector organisations from the prejudices described above. FOIA provides access to information to improve general public trust and confidence in public sector bodies and is not to be used by individuals to hold bodies accountable in particular circumstances, or to provide feedback for a particular complaint. Whilst the Appellant knows the details behind this particular complaint, this is quite different from confirmation under FOIA, which is given to the world at large with no limits on what can then be done with the information. We can understand that the Appellant may find this frustrating.

35. There is public interest in favour of requiring the EHRC to confirm or deny whether requested information is held: transparency and education as to how the EHRC carries out its functions, specifically the circumstances in and cases which it investigates and accountability. However, in our view for the EHRC to confirm or deny whether the requested information was held in this case would only further that interest to a very limited degree.

36. Balanced against that, is, in our view, a stronger public interest in avoiding the likely prejudices we have identified. Specifically, there are a strong public interests in ensuring that the EHRC: i) provides a safe space for people to report concerns, without fearing that the fact of their complaint or identity will be disclosed to the world at large under FOIA; ii) be a similar safe space for those complained about, so that they might not be inhibited from providing complete information and full co-operation to assist with the EHRC’s preliminary assessments; iii) is not hampered by the compromise of the integrity of evidence responsive to an investigation, or a potential investigation; iv) able to take a consistent approach to confirmation or denial to avoid acting to its own detriment.

37. Whilst there is an undoubted public interest in scrutiny of, and confidence in, the work of the EHRC, that should not be at the expense of, its ability effectively to discharge its functions. There are other routes to visibility of the basis on which the EHRC’s investigations and enquiries are carried out, for example: (1) publicly available information in the Strategic Plan, which includes a detailed explanation of the strategy and approach to carrying out its regulatory functions, and (2) oversight by Parliamentary Committees. Additionally, the EHRC has a complaints process about the service level received for an individual to pursue if they are not happy with the outcome of their complaint to the EHRC. In our view, those means are sufficient to satisfy any public interest in scrutiny of the EHRC’s relevant activities. We have not identified any feature of this particular case, which engages any different consideration of the competing public interest factors.

38. Having considered the public interests on both sides, and viewing matters in the round, we find that the public interest in maintaining the exemption does outweigh the public interest in confirming or denying that the requested information is held. The public interest in avoiding the prejudice to the EHRC’s functions likely to be caused by its confirming or denying it held the requested information is sufficiently strong to outweigh any general or specific public interests, specific to this case, in confirmation or denial. Conclusion

39. We find that the Commissioner was correct to conclude that the EHRC was entitled to rely on Sections 31(1)(3) FOIA to neither to confirm nor deny the requested information was held. To that extent the Decision Notice is in accordance with the law. The Appeal must, therefore, be dismissed. Signed Judge Dwyer Date: 08/12/2025 CORRECTED ON: 12/01/2026