Email sent - Sat 08/07/2017 12:12
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
Alan M Dransfield
FOIA Campaigner and Social Watchdog
Dear Mr Dransfield
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.
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 firstname.lastname@example.org, quoting the reference number above.
Information Rights Unit
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.
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
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.
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.
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.
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:
Information Rights Unit
PO Box 57192
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
Phone: 0303 123 1113
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