Kashif v ICO: Tribunal Affirms Police’s Right to Withhold Investigative Records

Kashif v The Information Commissioner and another [2025] UKFTT 213 (GRC)

Overview

In a recent case before the First-tier Tribunal, the Appellant challenged the decision of the Information Commissioner regarding a Freedom of Information Act (FOIA) request. The case involved a request made to the City of London Police concerning an investigation into the popular online game Club Penguin and its successor, Club Penguin Rewritten. The Tribunal ultimately dismissed the appeal, affirming the Information Commissioner’s decision to uphold exemptions under section 30(1)(a) FOIA.

Facts of the case

The Appellant sought access to information related to the City of London Police’s investigation into Club Penguin Rewritten, a game that had been under scrutiny for potential intellectual property violations. Specifically, the Appellant requested documents such as interviews, prepared statements, and other materials presented during the investigation. However, the City of London Police refused to disclose the requested documents, citing exemptions under both section 30 and section 40 of FOIA.

The Information Commissioner conducted an investigation into the matter and upheld the Police’s decision to withhold the information, prompting the Appellant to appeal the decision.

The legal framework

This case was governed by the Freedom of Information Act 2000 (FOIA), a law that provides a right of access to information held by public authorities. Two key exemptions were at the centre of the dispute:

Additionally, the case also touches upon the Data Protection Act 2018 (DPA) and the UK General Data Protection Regulation (UK GDPR), particularly in relation to the privacy of individuals whose data may have been included in the investigation.

Arguments

The Appellant argued that the release of the requested documents would support the principles of accountability and transparency in policing. They further emphasised that any personal data could be redacted, and that there were alternatives for disclosure under the DPA. The Appellant also asserted that access to the information could help promote public understanding of police activities and bolster democratic oversight.

In contrast, the City of London Police countered that releasing the requested information could seriously damage future investigations. The Police argued that disclosing sensitive details of an ongoing or past investigation would provide suspects with advantages and hinder the detection of future crimes.

Court’s decision

The Court acknowledged the public interest in ensuring transparency and accountability in law enforcement. However, it ultimately concluded that the public interest in maintaining effective police investigations overshadowed the public interest in disclosure.

One of the central concerns was the potential harm to future investigations. The Court emphasised that disclosing investigation materials could alert suspects to the lines of enquiry police were pursuing, particularly in cases involving intellectual property crimes, where suspects could strategically adjust their actions based on the available information.

The Court also drew a distinction between disclosure during a trial—where information is made available to the public and Courts—and disclosure under FOIA, which would provide unrestricted access to sensitive investigative documents.

In its final ruling, the Court dismissed the Appellant’s appeal. It agreed with the Information Commissioner’s conclusion that the exemptions under sections 30(1)(a) and 40(2) of FOIA applied and were appropriate in this case.

Implications of the decision

This decision highlights the delicate balance between public access to information and the need for law enforcement agencies to protect the integrity of their investigations. It underscores the importance of the FOIA exemptions related to criminal investigations, especially in cases where the disclosure of sensitive information could lead to strategic disadvantages for law enforcement.

Furthermore, the case illustrates the nuanced considerations that Courts and tribunals must weigh when assessing public interest factors. While transparency and accountability in policing are crucial values, they must be balanced against the potential harm that premature or unwarranted disclosure could cause to ongoing investigations and to individuals’ rights to privacy.