Biometric Data (2490_15)

Request

The information that I am requesting refers to the retention of biometric data.

The Protection of Freedoms Act (PoFA) 2012 allows for National Security Determinations (NSD) to be made which allow the period that biometric data is retained for to be extended.

Please would you provide me with the number of National Security Determinations which have been made under the PoFA since the powers came into force (end of October 2013). Please provide these figures broken down by the number of NSDs which have been made each month since the commencement under PoFA – where possible broken down by whether this is ‘Legacy Material’, or ‘New Material’.

The amount of NSDs, made by your force, where the biometrics commissioner has ordered destruction of the material (overturned). As with above, please provide these figures broken down by month.

To assist in the locating of this information, I believe it may be held in the NSD IT System.

Please note, I am only seeking numerical figures, not any personal data, or information that could be detrimental to police work.

If it is not possible to provide the information requested due to time/cost limitation put in place by the Act please provide guidance under S.16 as to how I can refine my request to be included in the scope of the Act.

Response

We can confirm that some relevant information is held by West Midlands Police. However, we are withholding that information since we consider that the exemptions outlined below apply to it.

REASONS FOR DECISION

The Freedom of Information Act places two responsibilities on public authorities, the first of which is to confirm what information it holds and secondly to then disclose that information, unless exemptions apply.

In this case the information is exempt by virtue of the following exemptions

Section 24(2) National Security

Section 31(3) Law enforcement

In addition to the above response we can neither confirm nor deny that any further information is held by virtue of Section 23(5) – Information relating to certain security bodies.

These exemptions and explanatory notes are shown here:

http://www.west-midlands.police.uk/docs/advice-centre/foi/exemptions.pdf

Section 23 is an absolute exemption which means that the legislators have identified that harm would be caused by release and there is no requirement to consider the public interest test.

In line with the above, I am required to complete a Prejudice Test/Public Interest Test (PIT) for Section 24 and Section 31 on disclosure. Please see below.

Overall Harm for Section 24 and Section 31

The threat of terrorism cannot be ignored. It should be recognised that the international security landscape is increasingly complex and unpredictable. The UK faces a sustained threat from violent terrorists and extremists. Since 2006 the UK Government have published the threat level based upon current intelligence and that threat level has remained at the second highest level ‘severe’, except for two short periods during August 2006 and June and July 2007, when it was raised to the highest threat ‘critical’ and July 2009, when it was reduced to ‘substantial’. The current threat level to the UK is ‘severe’.

To disclose the number of National Security Determinations submitted by each force would undermine individual forces policing capabilities which consequently would be detrimental to their ability to deal with the on-going terrorist threat we face. By providing the number of persons suspected of terrorism related activities by an individual force would allow comparison between forces across the country and enable terrorists to build a picture of the level of resourcing and where those resources are deployed as presumably a force with a large number of suspected terrorists will have greater resources deployed to assist with counter terrorism opposed to a force with few. It is felt that the disclosure of the requested information would prejudice the effectiveness of the national counter terrorism effort and would allow inferences to be drawn about force level counter-terrorism activity and identify vulnerability around the country.

In addition police investigations could be compromised as the disclosure of the information could alert offenders of their ‘suspect’ status thus allowing them to alter their behaviour and activities to evade detection. Any enquiries or investigations carried out by other agencies may also be compromised and to compromise the investigative process and any evidential gathering undertaken to combat the terrorist threat we face would affect the safety of the public at a national level.

Factors favouring disclosure of the information S24

The public are entitled to know how public funds are spent and to disclose this information would allow the public to see where money is being spent and know that forces are doing as much as they can to combat terrorism.

Factors favouring non-disclosure of the information S24

To disclose this information would render security measures less effective which would compromise ongoing or future operations to protect the security and infrastructure of the UK. The risk of harm to the public would be elevated, if areas of the UK which appear vulnerable were identified which would also provide the opportunity for terrorist planning. Ongoing or future operations to protect the security and infrastructure of the UK would be compromised as terrorists could map the level of counter-terrorist activity across the country by knowing the number of persons suspected of terrorism within a force area, thus providing them with an inferred knowledge of individual force capability.

Factors favouring disclosure of the information S31

To disclose the number of NSDs made by a force would make members of the public more aware of the threat of terrorism and allow them to take steps to protect themselves and families. Improved public awareness may lead to more intelligence being submitted to police about possible suspects as members of the public will be more observant to suspicious activity which in turn may result in a reduction of crime.

Factors favouring non-disclosure of the information S31

By applying exemptions to the requested information inhibiting its disclosure would prevent law enforcement tactics from being compromised and would retain the Police force’s ability to prevent and detect terrorist crimes. It is given that the threat of terrorism will increase as more crimes are committed as a result of terrorists gaining knowledge about the capabilities of individual forces and therefore the public will be placed at a greater risk, however, by exempting the information those with the inclination to commit acts of terrorism will not have knowledge regarding the vulnerability of specific areas and therefore the increase of threat will be prevented and a fear of crime will not be realised as terrorists will not know which areas to target and exploit .

In addition, disclosure of the information would have an adverse impact upon police resources as forces that could be perceived as vulnerable may need to increase their resources to reassure and protect the community.

Balance Test

The security of the country is of paramount importance. The police will not divulge any information that would place the safety of an individual at risk or undermine national security. Whilst there is a public interest in the transparency of policing, and in this case providing assurance that the police service is appropriately and effectively engaging with the threat posed by terrorist activity, there is a very strong public interest in safeguarding both national security and the integrity of police investigations and operations in the highly sensitive subject of terrorism.

As much as there is a public interest in knowing that policing activity is appropriate and balanced in matters of national security this will only be overridden in exceptional circumstances. Police force’s capabilities of combating terrorism are sensitive issues of intelligence value to the terrorist and therefore it is our opinion that for these issues the balancing test for disclosing the requested information is not made out.

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