Request / Response
Copies of the Interception of Communications Commissioner’s inspection reports for 2011 and 2012 for your organisation
DECISION UNDER THE TERMS OF THE FREEDOM OF INFORMATION ACT
We can confirm that inspection reports are held by West Midlands Police. However, while a redacted document is attached to this email I am afraid that I am not required by statute to release all of the information requested. This letter serves as a Refusal Notice under Section 17 of the Freedom of Information Act 2000 (the Act) for the parts of the document that have not been released
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, this letter represents a Refusal Notice for the redacted parts of the attached document. The information is exempt by virtue of the following exemptions
Section 30(1) (a) (b),
Section 31(1) (a) (b),
Section 38(1) (b)
Section 30 Investigations – is a class based qualified exemption which doesn’t require the prejudice (harm) to be documented however it is subject to a public interest test.
S24 National Security and S31 Law Enforcement and S38 Health and Safety – are prejudice based qualified exemptions which require the prejudice (harm) to be evidenced and a public interest test to be carried out.
The information requested contains sensitive names, practice recommendations and tactical information. I therefore provide details of the harm that will be caused by their disclosure.
The success of criminal investigations is very often dependent on the use of covert techniques and methodology. The individuals involved in this type of activity, or any individual suspected by the criminal fraternities of being so involved, would have their safety put at risk, if the information were released that could identify any individual or policing activity.
Many criminals are constantly active and astute in their assessment of police capabilities and will capitalise on any information they can glean about policy and practice. Using the information to compromise policing methods will assist their offending behaviour. For example, enabling offenders to engage counter measures against disclosed surveillance techniques.
In addition, members of the public assisting in this type of activity would be less inclined to come forward if their assistance and information about them is disclosed through FOI disclosure, resulting in a reduced capability for law enforcement and a negative impact on future operational work. This would impact on the ability to prevent or detect crime and breakdown the maintenance of the ethos of confidentiality engaged with ANY member of public that assists the police, from informants to the provision of premises by members of the public.
The information requested contains names of police officers who undertake their roles covertly. By releasing these names into the public domain the safety of these individuals would be compromised.
Public Interest Test
Factors favouring disclosure S30
Any investigation that is carried out will have used public funds. Releasing the requested details will show that those funds have been used correctly.
Factors favouring non-disclosure S30
To release details about an investigation, especially one where surveillance has been used, is likely to have a significant impact on future law enforcement capabilities.
Factors favouring disclosure S24
If the public are better informed they can take steps to keep themselves safe.
Factors favouring non-disclosure S24
By releasing information that the public do not need to know has the potential to increase the risk to the public. This is because if someone knows our position they can take measures to counteract them.
Factors favouring disclosure S31
If the public are given information they are then in a better position to protect themselves.
Factors favouring non-disclosure S31
Considerable time and effort is put into the development of law enforcement tactics. Releasing information that would identify those tactics will compromise those tactics and has the potential to hinder the prevention or detection of crime.
Factors favouring disclosure S38
Any work that the police perform requires the expenditure of public funds.
Factors favouring non-disclosure S38
This request is referring to surveillance information and some of this is performed covertly. By releasing data that could identify how that covert information is obtained may put the individuals involved at risk and may lead to a loss of confidence in the ability of the police to protect the community.
The purpose behind this test is to review the factors given above to determine if the balance falls in favour of disclosure or non-disclosure of the requested data. In relation to S30 I have reviewed that information and it is my consideration that the potential to reduce the force’s future law enforcement capabilities outweigh those of showing that public funds have been used appropriately.
For the other exemptions used I have had to look at the information above including the identified harm and for S24 I consider that anything that will increase the risk to the public is not in the public interest to disclose. For S31 I have looked at the factors and consider that the wider implication of compromising police tactics has a greater weight to that of the public being provided with information that will enable them to better protect themselves. For S38 I consider that releasing anything that will put individuals at risk has a greater weight than that of the expenditure of public funds.
On balance and taking all the above into consideration it is my decision that the redacted information should be protected from disclosure.
In accordance with the Act, this letter represents a Refusal Notice for this particular part of your request.
In addition to the above refusal, West Midlands Police can neither confirm nor deny that it holds any other information relevant to your request as the duty in s1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:
Section 23(5) Information relating to the Security bodies;
Section 24(2) National Security;
Section 30(3) Investigations;
Section 31(3) Law enforcement;
Section 23 is an absolute class-based exemption and therefore there is no requirement to conduct a harm or public interest test
Sections 24, is a prejudice based qualified exemptions and there is a requirement to articulate the harm that would be caused in confirming or not that the information is held as well as carrying out a public interest test.
Every effort should be made to release information under FOI. However, to confirm or deny many of the police actions around RIPA and in particular specialist tactical areas would undermine ongoing investigations, reveal policing techniques, risk the identification of individuals, the possibility of revealing involvement of any exempt bodies and the risk in undermining National Security. Revealing information that specific tactics are used in certain circumstances (e.g. murder, kidnap, and drugs importation) would help subjects avoid detection, and inhibit the prevention and detection of crime. This could either lead to the identification of specific cases or in providing this level of information at force level is likely to result in significantly small authorisation numbers being published which presents a real risk of identifying the resources available to individual departments to covertly monitor groups or individuals likely to be committing offences under their remit.
It is important that the Police Service discloses information regarding surveillance activity under RIPA where it is appropriate to do so but some authority information or specific covert law enforcement techniques are not disclosed for the above reasons. To do so would disclose tactical information to the detriment of those actual techniques.
In order to counter criminal and terrorist behaviour it is vital that the police and other agencies have the ability to work together, where necessary covertly, in order to obtain intelligence within current legislative frameworks to ensure the successful arrest and prosecution of those who commit or plan to commit acts of terrorism. In order to achieve this goal, it is vitally important that information sharing takes place with other police forces and security bodies within the UK and Internationally in order to support counter-terrorism measures in the fight to deprive international terrorist networks of their ability to commit crime.
It should be recognised that the international security landscape is increasingly complex and unpredictable. The UK faces a serious and sustained threat from violent extremists and this threat is greater in scale and ambition than any of the terrorist threats in the past.
Since 2006, the UK Government have published the threat level, based upon current intelligence and that threat 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’. The current security level for England & Wales is set at Substantial
The Police Service is committed to demonstrating proportionality and accountability regarding surveillance techniques to the appropriate authorities. However, if the Police Service were to either confirm or deny that any other information exists other covert surveillance tactics will either be compromised or significantly weakened. If the Police Service denies a tactic is used in one request but then exempts for another, requesters can determine the ‘exempt’ answer is in fact a technique used in policing. The impact could undermine national security, any on-going investigations and any future investigations, as it would enable targeted individuals/groups to become surveillance aware. This would help subjects avoid detection, and inhibit the prevention and detection of crime.
The prevention and detection of crime is the foundation upon which policing is built and the police have a clear responsibility to prevent crime and arrest those responsible for committing crime or those that plan to commit crime. To do this the police require evidence and that evidence can come from a number of sources, some of which is obtained through covert means. Having obtained sufficient evidence offenders are charged with offences and placed before the courts. By confirming or denying that any other information pertinent to this request exists could directly influence the stages of that process, and jeopardise current investigations or prejudice law enforcement.
Any information identifying the focus of policing activity could be used to the advantage of terrorists or criminal organisations. Information that undermines the operational integrity of these activities will adversely affect public safety and have a negative impact on both national security and law enforcement.
Public Interest Test
Factors favouring confirmation or denial for S24
The public are entitled to know how public funds are spent and by confirming or denying that any other information relevant to the question exists could lead to a better-informed public that can take steps to protect themselves
Factors against confirmation or denial for S24
By confirming or denying that any other information relevant to the question exists would render Security measures less effective. This could lead to the compromise of ongoing or future operations to protect the security or infra-structure of the UK and increase the risk of harm to the public.
The security of the country is of paramount importance and the Police service will not divulge whether information is or is not held if to do so could undermine National Security or compromise law enforcement. Whilst there is a public interest in the transparency of policing operations and in this case providing assurance that the police service is appropriately and effectively engaging with the threat posed by the criminal fraternity, there is a very strong public interest in safeguarding both national security and the integrity of police investigations and operations in this area.
As much as there is public interest in knowing that policing activity is appropriate and balanced in matters of national security this will only be overridden in exceptional circumstances. Therefore it is our opinion that for these issues the balancing test for confirming or denying whether any other information relevant to your request exists is not made out.
There is also no requirement to satisfy any public concern over the legality of police operations and the tactics we may or may not use. The force is already held to account by independent bodies such as The Office of the Surveillance Commissioner and The Interception of Communications Commissioners Office. These inspections assess each constabulary’s compliance with the legislation and a full report is submitted to the Prime Minister and Scottish Ministers containing statistical information. Our accountability is therefore not enhanced by confirming or denying that any other information is held.
None of the above can be viewed as an inference that any other information does or does not exist.