Decision 228/2025:  Existence of records relating to deceased police officers

Authority:  Chief Constable of the Police Service of Scotland
Case Ref:  202301488

Summary

The Applicant asked the Authority about the existence of records relating to deceased police officers and whether these could be made available specifically in relation to two named individuals.  The Authority refused to confirm or deny whether the information existed or was held by it.

The Commissioner investigated and found that was not entitled to refuse to reveal whether the information existed or was held.  He required the Authority to issue a revised review outcome to the Applicant.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 18(1) (Further provisions as respects responses to request); 39(1) (Health, safety and environment); 47(1) and (2) (Application for decision by Commissioner).

Background

1. On 19 September 2023, the Applicant made a request for information to the Authority. He explained that he was carrying out research on police officers who served with Strathclyde Police and its previous legacy forces.  He usually accessed service records relating to deceased officers from the Mitchell Library in Glasgow but he had recently had difficulties obtaining the information he needed for his research.  
   
   He asked the Authority for the service records of two named officers who had served with the Authority’s predecessors between the 1950’s and 1980’s.  He provided the Authority with their death certificates as confirmation that they were deceased.
2. The Authority responded on 18 October 2023.  It applied section 18(1) of FOISA, as read with section 39(1) of FOISA.  The Authority refused to confirm or deny whether it held the information because the public interest overwhelmingly lay in protecting the individuals’ right to privacy, even in death, and disclosure would be potentially distressing to the loved ones of the individuals.
3. On 23 October 2023, the Applicant wrote to the Authority requesting a review of its decision. The Applicant stated that he was dissatisfied with the decision because he sought the information with the approval of the named officers’ immediate families and it related to the service records of those individuals rather than their personal background or circumstances.
4. The Authority notified the Applicant of the outcome of its review on 16 November 2023.  It upheld its original response in full.
5. On 26 November 2023, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  The Applicant was dissatisfied with the outcome of the Authority’s review.  He argued that disclosure of the information was vital to the social and historical research of policing and the history of policing.

Investigation

6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
7. On 12 January 2024, and in line with section 49(3)(a) of FOISA, the Commissioner gave the Authority notice in writing of the application and invited its comments.
8. The case was subsequently allocated to an investigating officer.

Commissioner’s analysis and findings

9. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority. 

Section 18(1) – neither confirm nor deny

10. Section 18(1) of FOISA allows public authorities to refuse to confirm or deny whether they hold information in the following limited circumstances:

    i) a request has been made to the authority for information, which may or may not be held by it; and

    (         ii)  if the information existed and was held by the authority (and it need not be), it could give a refusal notice under section 16(1) of FOISA, on the basis that the information was exempt information by virtue of any of the exemptions in sections 28 to 35, 38, 39(1) or 41 of FOISA; and

    (        iii) the authority considers that to reveal whether the information exists or is held by it would be contrary to the public interest.

11. It is not sufficient to claim that one or more of the relevant exemptions applies. Section 18(1) of FOISA makes it clear that the authority must be able to give a refusal notice under section 16(1), on the basis that any relevant information (if it existed and was held) would be exempt information under one or more of the listed exemptions.
12. In this case, the Authority submitted that, if it held any information falling within scope of the Applicant’s request, it would be exempt from disclosure under section 39(1) of FOISA.
13. The Commissioner must first, therefore, consider whether the Authority could have given a refusal notice under section 16(1) of FOISA in relation to the information in question, if it existed and was held.
14. Where section 18(1) of FOISA is under consideration, the Commissioner must ensure that his decision notice does not confirm one way or the other whether the information requested actually exists or is held by the authority.  This means he is unable to comment in any detail on the Authority’s reliance on any of the exemptions referred to, or on other matters which could have the effect of indicating whether the information exists or is held by the Authority.

Section 39(1) – Health, safety and the environment

15. Section 39(1) of FOISA states that information is exempt information if its disclosure under FOISA would, or would be likely to, endanger the physical or mental health or the safety of an individual.  This is a qualified exemption and is subject to the public interest test required by section 2(1)(b) of FOISA.
16. As the Commissioner notes in his briefing on this exemption[1], section 39(1) of FOISA does not contain the usual harm test.  Instead of the “substantial prejudice” test found in many other harm-based exemptions in Part 2 of FOISA, this exemption refers to the “endangerment” of health or safety.  This test may be seen as less demanding than the “substantial prejudice” test, but equally no test requiring endangerment can be seen as particularly undemanding.

The Applicant's comments

17. The Applicant stated that he held a position in The Lanarkshire Police Historical Society, and the aim of the Society was to preserve the history of policing in Lanarkshire.  He explained that, with the permission and assistance of the families of deceased police officers, he undertook research of their police careers and shared that information with the families.  It was for this reason, and with the permission of the deceased officers’ families, that he made his request to the Authority.
18. The Applicant submitted that he had provided the Authority with copies of the officers’ death certificates.
19. The Applicant explained that he had the approval of the officers’ immediate families to carry out his research and that the research outcome would be shared with those families and would not, therefore, cause any distress to them.  He noted that the relative of one of the officers had offered to discuss the matter with the Authority, and he provided the Authority with their contact details should they wish to confirm matters.

The Authority’s comments

20. The Authority submitted that disclosure of the information captured by the request, if it existed and was held, would negatively affect the ongoing relationship between employer and employee.  It argued that that employers would be reluctant to retain employee data for fear of disclosure through FOI to the world at large, and employees would be reluctant to provide their data to employers for that same reason.  Furthermore, the Authority claimed that it would result in limited communications between employers and their employees and it would negatively affect employment and working relationships, leading to individuals being unwilling to freely express their views to their employer (as they would fear disclosure).
21. The Authority stated that the very nature of data held in personnel files was the sensitive data of the employee such as health, appraisal, discipline data, etc and it argued that it owed a duty of confidentiality to each employee.
22. The Authority argued that deceased former employees, even in death, have a reasonable expectation that their personnel files would not be disclosed under FOI. It considered that disclosure, if the information existed and was held, would open up the flood gates for the general public to request personnel records of any employee.
23. The Authority explained that it did have an arrangement with the Mitchell Library in Glasgow, whereby retired officers’ personnel files, if they were of any historical value, would be made available after appropriate redaction.  The Authority stated that this practice ended around 1995 but, due to the passage of time and changes in staff, there is no organisational memory of why this practice ceased.
24. The Authority stated that its Retention SOP (Standard Operating Procedure) has “offer to archive” as a disposal action for personnel records once an officer leaves the force and operational/business requirements have ceased.  It submitted that any personnel records for those employees leaving the police force would, in theory, be deposited with National Records Scotland (NRS) if there was archival value in them.  However, the Authority submitted that there were no deposit arrangements in place with the NRS, and it had never transferred personnel records to them.
25. The Authority acknowledged that, in this case, members of the deceased’s families had given permission for the Authority to release their loved ones’ personnel files, but it noted that it was not their given right.  It reiterated that the Authority still owed confidentiality to the deceased officers, as there may be content within their files that their family may be unaware of, or that they would not want disclosed by means of a public disclosure to the world at large.

The Commissioner's view on section 39(1)

26. As noted above, in order for the Commissioner to uphold section 39(1) of FOISA, he must be satisfied that disclosure of the information would, or would be likely to, endanger the physical or mental health or the safety of a living individual. The Authority must provide him with evidence that demonstrates that not only is it possible that disclosure would cause such harm, but that such an eventuality was likely to occur.  The Authority has failed to supply the Commissioner with any such evidence.  
27. In the initial response, the Authority briefly stated that disclosure of the requested information, if it existed and was held, had the potential to cause distress to the deceased’s loved ones.  
    
    However, the Commissioner considers this to be a wholly hypothetical argument, particularly in light of the Applicant’s comments that he had the support of the deceased officer’s families; support which he was willing to evidence.  The Commissioner notes that in his requirement for review of 23 October 2024, the Applicant provided the Authority with contact details for the relatives of one of the deceased individuals.  Furthermore, the Applicant contacted the Authority again, on 17 November 2024, with the contact details of relatives of another of the officers.  The Applicant provided the Commissioner with copies of both emails.
28. Apart from this earlier comment about the distress that may affect the deceased’s officer’s families, the Commissioner notes that all of the Authority’s submissions on section 39(1) of FOISA, focus solely on the relationship between employer and employee and the confidentiality of that relationship, even following death.  The Commissioner acknowledges that these are matters which might be relevant to other exemptions under FOISA; but they are not relevant to section 39(1) of FOISA, which only allows authorities to refuse to disclose information if there is a real likelihood of endangering a living individual’s health or safety.  (He would also suggest that they bear more relevance to whether relative information should be disclosed than to whether its existence, or whether it is held, should be revealed by the Authority.)
29. For this reason, the Commissioner cannot accept that disclosure of the information requested, if it existed and was held would, or would be likely to, endanger the physical or mental health or the safety of any person.  He therefore finds that the exemption in section 39(1) of FOISA has been wrongly applied by the Authority in this case.
30. Given that the exemption in section 39(1) of FOISA was wrongly applied, the Commissioner is not required to consider the public interest test in section 2(1)(b) in terms of section 39(1).

The Commissioner’s view on Section 18(1)

31. In its submissions to the Commissioner, the Authority explained that the reason it had applied section 18(1) of FOISA was not in relation to the actual service records of the individuals, but because it had never publicly stated that the named officers were deceased.
32. In general terms, the death of a person is a matter of public record.  Such records are made available for inspection by the public on the National Records of Scotland website, www.scotlandspeople.gov.uk[2] (and copies can be obtained from the NRS or local authorities, even where they are not so available – and the Applicant has, in fact, produced the death certificates of the individuals concerned).  The Commissioner does not accept that the Authority was entitled to refuse to confirm or deny that the information was held, simply because it had not confirmed publicly that the officers were deceased.  It is clear that information about the deaths of the named officers was already in the public domain (at the time of the request), regardless of whether or not the Authority itself had confirmed their deaths.
33. In any case, as stated above, section 18(1) of FOISA makes it clear that the authority must be able to give a refusal notice under section 16(1), on the basis that any relevant information (if it existed and was held) would be exempt information under one or more of the listed exemptions.
34. Having accepted that the Authority could not have given a refusal notice under section 16(1) of FOISA on the basis that the information requested by the Applicant, if it existed and was held, would be exempt information by virtue of section 39(1) of FOISA, the Commissioner is not required by section 18(1) to go on to consider whether the Authority was entitled to conclude that it would be contrary to the public interest to reveal whether the information existed or was held.
35. Consequently, the Commissioner concludes that the Authority was not entitled to refuse to reveal whether the information requested by the Applicant existed or was held by it in terms of section 18(1) of FOISA.  He has set out below the steps he requires the Authority to take as a result of this conclusion.

Decision 

The Commissioner finds that the Authority failed to comply with Part 1 (and, in particular, section 18) of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant.

The Commissioner finds that the Authority was not entitled to issue a refusal notice under 16(1) of FOISA on the basis that any relevant information, if it existed and was held, would be exempt information by virtue of section 39(1) of FOISA.  Consequently, he finds that, by refusing to reveal, in terms of section 18 of FOISA, whether the requested information existed or was held by it, the Authority failed to comply with Part 1 of FOISA.

The Commissioner therefore requires the Authority to reveal to the Applicant whether the information requested exists or is held by it.  If the information is held, he requires the Authority to provide that information to the Applicant, or to issue a refusal notice in line with the requirements of section 16 of FOISA.  If the information is not held, he requires the Authority to give notice of this, in line with the requirements of section 17 of FOISA.

The Commissioner requires the Authority to do this by 10 November 2025.

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only.  Any such appeal must be made within 42 days after the date of intimation of this decision.

Enforcement

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply.  The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

Euan McCulloch 

Head of Enforcement 

26 September 2025