The First Tier Tribunal has rejected an appeal against the Information Commissioner’s decision to support Sussex Police’s refusal of a Freedom of Information request relating to the physical security of public health infrastructure.
In David Tindell v The Information Commissioner and The Chief Constable of Sussex Police [2026] UKFTT 281 (GRC), the FTT upheld the Information Commissioner’s view that Sussex Police were correct in refusing to supply the information requested as it constituted location-specific security recommendations and that it was therefore not in the public interest for it to be disclosed.
On 23rd July 2024, the Appellant requested a copy of a specific "Secured by Design" (SBD) assessment (ref: NW/M/19/006B SBD) conducted by Sussex Police regarding St Peter’s Health Centre in Brighton.
The request was refused by the police citing Section 31(1)(a) of the Freedom of Information Act (FOIA), a qualified, prejudice-based exemption protecting information that, if disclosed, would or would be likely to prejudice the prevention or detection of crime. This decision was upheld following an internal review by Sussex Police.
The appellant made a complaint to the Information Commissioner in January, 2025. In its Decision Notice IC-354802-W9W3. the Commissioner found that Sussex Police had breached Section 10(1) of the FOIA by failing to provide a response within the statutory 20-working-day limit but upheld the substantive use of the exemption.
Mr Tindall then lodged an appeal with the First-tier Tribunal (FTT) and the case was heard on the papers and the decision given to the parties on 2nd March 2026.
The primary area of dispute was whether the public interest balance outweighed the engagement of the Section 31(1)(a) exemption, which provides: "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—(a) the prevention or detection of crime."
The Section 30 Precursor Section 31 is a "residual" exemption; it can only be engaged if the information is not already exempt under Section 30. The Tribunal confirmed that Section 30 (covering investigations and proceedings) did not apply because the SBD assessment was a proactive crime prevention tool rather than a record of a specific criminal investigation or civil proceeding.
The Tribunal applied the established three-stage test from Christopher Martin Hogan and Oxford City Council v the Information Commissioner (EA/2005/0026 and 0030) (the Hogan Precedent). This test requires the public authority to move beyond broad assertions and demonstrate a specific causal link between disclosure and a "real, actual or of substance" harm.
The Tribunal's inquiry focused on whether the "de minimis" threshold established in Hogan was met by applying the Hogan Three-Stage Prejudice Test
Stage 1: Identification of Applicable Interests
The Chief Constable identified the applicable interest as the prevention of crime. Specifically, the interest lies in maintaining the security of NHS premises by ensuring that physical and procedural vulnerabilities remain confidential to prevent exploitation by offenders. The Tribunal accepted this interest as squarely within the scope of Section 31(1)(a).
Stage 2: Nature of Prejudice and the Causal Link
The Tribunal evaluated whether disclosure would lead to harm that is "real, actual or of substance," paying particular attention to the "motivated offender" concept.
In this regard, the appellant’s argued against a Causal Link on a number of grounds. Firstly, that the SBD is a generic design guide and that similar information is public on the SBD website.
He also argued that potential offenders would not be aware of the document's existence. Moreover, downloading the document would leave a digital trace, enabling police to track offenders. Finally, potential offenders would not know if the security recommendations were ever implemented.
The FTT, however, disagreed with these arguments. The withheld assessment contained location-specific recommendations for the health centre, going far beyond generic public guidance, it said. The identification of physical vulnerabilities would provide an advantage that persists regardless of the police's ability to track the downloader. The report identifies an inherent weakness so, even if implementation is unknown, highlighting a vulnerability provides a significant tactical advantage to an offender.
Stage 3: Likelihood of Occurrence
The Tribunal applied the "likely to prejudice" threshold. Following the interpretation of Munby J in R (Lord) v Secretary of State for the Home Office [2003] EWHC 2073 (Admin), the Tribunal held that "likely" means: "...a degree of probability where there is a very significant and weighty chance of prejudice... even if the risk falls short of being more probable than not."
In assessing this risk, the Tribunal gave significant weight to the police. As "part of the machinery of the State" tasked with law enforcement, their expertise in the predictive, speculative task of crime prevention warrants judicial deference. The Tribunal concluded that providing a "roadmap" of vulnerabilities for an NHS facility created a real and significant risk of prejudice.
Comparative Analysis: Distinguishing Precedent
The Appellant relied on Pauline Reith v IC and LB Hammersmith and Fulham (EA/2006/0058), where a Tribunal rejected a prejudice claim because the authority provided no evidence that disclosing vehicle towing criteria would encourage illegal parking.
The Tribunal distinguished Tindell from Reith by referencing Colin P England v LB Bexley (EA/2006/0060 and 0066). The Tribunal noted that crime prevention is inherently a "speculative task." Therefore, it is permissible - and often necessary- to "extrapolate from available evidence" to determine what is likely to occur upon disclosure. Unlike the generic regulatory criteria in Reith, the SBD assessment contained granular details about the physical vulnerabilities of a specific building, making the leap from disclosure to criminal opportunity a logical extrapolation rather than mere conjecture.
The Section 2(2)(b) Public Interest Balancing Test
As Section 31(1)(a) is a qualified exemption, the Tribunal weighed the competing public interests. However, it concluded that if the information is disclosed, there is a real risk that this would compromise the integrity of any security measures which have been implemented by the health centre. Therefore, the public interest in maintaining the exemption outweighs the public interest in disclosure.
The Tribunal also addressed the passage of time, noting the assessment was created in 2019 while the request was made in 2024. While the Appellant argued this made the information "historical," the Tribunal found the opposite: the passage of time actually reduced the value of disclosure (as the building’s operational reality had moved on) but did not significantly reduce the risk of prejudice.
If a recommendation made in 2019 had not been implemented due to financial or other constraints, that vulnerability remained exploitable. The public interest in preventing crime and protecting the integrity of NHS security carried the greater weight.
The Tribunal concluded that the Commissioner’s Decision Notice was not "wrong in law" and that his exercise of discretion was correct and the Appeal was Dismissed.
