The First-tier Tribunal has dismissed an appeal by a serving Metropolitan Police Chief Inspector against an Information Commissioner's decision notice that upheld the force's reliance on section 30(3) of the Freedom of Information Act 2000 to neither confirm nor deny holding information relating to a named operation investigating serious misconduct allegations against senior officers.
In Zahir Ashgar v Information Commissioner & Anor [2026] UKFTT 951 (GRC) the FTT, found that the MPS's NCND response was lawfully applied and that the public interest in protecting ongoing and future investigations from a "mosaic effect" outweighed the public interest in transparency, even though the appellant, Zahir Asghar, was himself the officer who had raised the original misconduct concerns and given a statement to the force.
Asghar requested all emails, memos and reports relating to the named operation, including correspondence involving specific senior officers. The MPS responded with NCND under sections 30(3) and 31(3) FOIA, and the Commissioner's decision notice of 23 December 2025 upheld reliance on section 30(3) without going on to consider section 31.
Asghar appealed on narrowed grounds at the hearing, arguing that section 30(3) was not properly engaged absent evidence of an actual criminal investigation, that the balancing exercise gave excessive weight to generic harm arguments over transparency and trust in policing, and that the MPS's consistent use of NCND in cases of this type amounted to an impermissible blanket policy.
Section 30 FOIA provides a class-based exemption protecting information held for the purposes of investigations into possible criminal offences, while section 31 is a prejudice-based exemption requiring a causal link between disclosure and real, actual harm to law enforcement functions. Both are qualified exemptions requiring a public interest balancing test before the duty to confirm or deny is excluded.
The Tribunal found that an investigation into serious misconduct by senior officers would, on the balance of probabilities, have considered whether to bring criminal charges, engaging section 30(1)(a)(i), and that the Commissioner was not required to establish whether any specific investigation was ongoing, closed or historical for the exemption to apply.
The panel distinguished a lawful "consistent" approach to NCND from an unlawful "blanket" one, concluding the MPS had properly weighed competing interests rather than applying the exemption mechanically. Because FOIA is applicant-blind, Asghar's insider knowledge and personal involvement as complainant did not alter the analysis; requests must be assessed as though made by any member of the public, including a potential suspect who might exploit confirmations pieced together across multiple requests or public sources.
The Tribunal went on to consider section 31 of its own motion, despite the Commissioner not having addressed it, and found the exemption equally engaged and decisive for the same reasons, covering prejudice to the prevention and detection of crime, the prosecution of offenders, and the MPS's function of ascertaining unlawful or improper conduct. The appeal was dismissed and no substituted decision notice was issued.
