Request / Response
Your request for information, received 19 November 2012 has now been considered. I apologise once again for the delay in providing this response, which as noted in our previous correspondence was caused by an increase in the volume of requests and staff abstractions. Your attention is drawn to your right to ask for an internal review (below) or to pursue the matter with the Information Commissioners Office at www.ico.gov.uk
The Freedom of Information Act 2000 creates a statutory right of access to information held by public authorities. A public authority in receipt of a request must, if permitted, state under Section 1(a) of the Act, whether it holds the requested information and, if held, then communicate that information to the applicant under Section 1(b) of the Act.
The right of access to information is not without exception and is subject to a number of exemptions which are designed to enable public authorities to withhold information that is unsuitable for release. Importantly the Act is designed to place information into the public domain, that is, once access to information is granted to one person under the Act, it is then considered public information and must be communicated to any individual should a request be received.
DECISION UNDER THE TERMS OF THE FREEDOM OF INFORMATION ACT
We can confirm that some relevant information is held by West Midlands Police. However, while some of the information is provided below I am afraid that I am not required by statute to release all of the information requested, or to confirm or deny that any further information is held. This letter serves as a Refusal Notice under Section 17 of the Freedom of Information Act 2000 (the Act).
REASONS FOR DECISION
Section 1 of the Freedom of Information Act places two duties on public authorities. Unless exemptions apply, the first duty at s1(1)(a) is to confirm or deny whether the information specified in a request is held. The second duty at s1(1)(b) is to disclose information that has been confirmed as being held. Where exemptions are relied upon section 17 of the Act requires that we provide the applicant with a notice which: a) states that fact b) specifies the exemption(s) in question and c) states (if that would not otherwise be apparent) why the exemption applies.
How much your force has paid covert human intelligence sources during the last five years?
Could this be please broken down into years and how much each individual has been paid
This information is exempt by virtue of:
Section 40 Personal Information
Section 30 Investigations.
Section 40 is an absolute and class based exemption if to provide the information would breach the third party’s data protection rights. In this case to provide this personal data would not constitute fair processing of the data and therefore would breach the first of the principles within the Data Protection Act 1998.
Section 30 requires me to conduct a Public Interest Test, which is shown below.
Section 30 Public Interest Considerations
Factors favouring disclosure
There is information within the public domain confirming that police use covert human intelligence sources to assist them with investigations and the effective delivery of law enforcement.
Disclosure would enhance the public’s knowledge about how information relating to informants is used by the Constabulary and how the intelligence received assists in day to day investigations and operations to assist the prevention and detection of crime; the apprehension and prosecution of offenders and the administration of justice.
Disclosure would also assist in stopping any incorrect rumours or falsehoods relating to how the police store and manage how informants assist the police.
Factors favouring non-disclosure
Disclosure of the information requested could identify informant activity within a force area. Over a period of time if several disclosures were made, individuals could analyse the information and identify any sudden peaks or troughs in informant activity. This would hinder the prevention and detection of crime and also prejudice our ability to maintain confidential sources. Consequently, the force’s future law enforcement capabilities would be affected.
There is information within the public domain confirming that police use covert human intelligence sources to assist them with investigations and the effective delivery of law enforcement. The Police Service is tasked with protecting the community we serve and solving crime and there is a public interest argument in ensuring we are open and transparent with regard to policing investigations and operations. There is no doubt that for the issues outlined above any disclosure relating to sensitive informant information would jeopardise those important roles.
As has been mentioned informants play a vital role in assisting the police, and is based very much on relationships built on trust and the expectation of complete confidentiality. West Midlands Police would never disclose information which would compromise our tactics.
It is therefore our opinion that the balance lies in favour of non-disclosure of the information.
Additionally, West Midlands Police can neither confirm nor deny that they hold any other information relevant to the whole of your request by virtue of the following exemptions:
Section 23(5) Information relating to security bodies listed at Section 23 (3)
Section 24(2) National Security
Section 30(3) Investigations
The police service works in partnership with other agencies in order to combat issues such as terrorism and organised crime. As such, information may sometimes be provided by bodies listed at section 23(3). In this case, I am unable to confirm or deny whether West Midlands Police hold any other information relevant to your request and sections 23 (5) and 24(2) are cited in conjunction to protect the involvement or non-involvement of bodies listed at section 23(3).
Section 23(5) is an absolute exemption and as such no public interest test is required. Section 24(2) is a qualified exemption and as such there is a requirement to evidence any harm confirmation or denial that any other information is held as well as consider the public interest.
Section 30(3) is class based and qualified and there is therefore a requirement to consider the public interest to ensure neither confirming nor denying whether any other information is held is appropriate.
The above quoted total payments to informants does not include any payments made to informants where funding may have been supplied by exempt bodies.
Harm for neither confirming nor denying that any other information is held for Section 24
Disclosure of informants data could impact on the recruitment and retention of CHIS in general, due to the perception of (rather than the actual) risk of identification. In an Information Tribunal case relating to the payments made to CHIS in Croydon (EA/2010/0006), it was accepted that this argument applied as much to CHIS providing intelligence in relation to national security concerns as to CHIS engaged in countering more traditional criminal threats. In this way, the disclosure of payment information would damage national security through discouraging current national security CHIS from cooperating with the police service in other geographical areas, or preventing the recruitment of national security CHIS in the future – regardless of whether the area in question actually currently runs CHIS reporting on serious crime, terrorist or other threats.
Public Interest test for S24
Factors favouring confirming or denying that any other information is held for Section 24
Confirmation or denial that any other information exists relevant to the request would lead to a better informed public and the public are entitled to know how public funds are spent. The information simply relates to national security and disclosure would not actually harm it.
Factors against confirming or denying that any other information is held for Section 24
Other organisations outside the police service are also widely engaged in rewarding informants in a number of ways, and therefore by confirming or denying that any other information exists relevant to the request would harm the close relationship that exists with such organisations, where trust and confidence in this specific area has been built up in the exchange of information and financial assistance during the Criminal Justice process.
To confirm or deny whether West Midlands Police hold any additional information would allow inferences to be made about the nature and extent of national security related activities which may or may not take place in a given area. This could enable terrorist groups to take steps to avoid detection, and as such, confirmation or denial would be damaging to national security
By confirming or denying any policing arrangements of this nature would render national security measures less effective. This would 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.
Public Interest for Section 30
The Police Service is charged with enforcing the law, preventing and detecting crime and protecting the communities we serve. Confirming that information exists could promote public trust in providing transparency and demonstrating openness and accountability into how the investigation took place. It could also provide reassurance to the public that the police service tasks all reports of a crime seriously and conducts investigations appropriately. To confirm could allow the public to have a better understanding of the effectiveness of the Police Service.
However, by its very nature information held relating to informants is sensitive in nature. Under FOI there is a requirement to comply with S1(1)(a) and confirm what information is held. In some cases it is that confirmation, or not, which could disclose facts harmful to informants. In some cases the mere existence can place individuals in grave danger. The only methodology which will provide the required degree of protection to those individuals is if the force takes advantage of its ability under FOI legislation to, when appropriate, not confirm or deny that the information requested, is or is not held. The Police Service will never disclose information which could identify investigative activity and therefore undermine their investigations. To do so would hinder the prevention or detection of crime.
The Police Service is charged with enforcing the law, preventing and detecting crime and protecting the communities we serve. The security of the country is of paramount importance and the Police service will not divulge whether any other information is or is not held if to do so would place the safety of an individual at risk or undermine National Security. Whilst there is a public interest in the transparency of policing operations and investigations, providing assurance that the police service is appropriately and effectively engaging with the threat from criminals, there is a very strong public interest in safeguarding both national security and the integrity of police investigations and operations in this highly sensitive 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.
These points were agreed by the Information tribunal in the case of ICO v Metropolitan Police, EA/2010/2006, where the request was for informant spend at borough level. Although the information in this case was subject to substantive exemptions, the key public interest balancing point was highly persuasive.
“CHIS are given strong guarantees that their identities will be protected. In some instances, a prosecution may be stopped rather then risk the identity, or in some cases even the existence, of a CHIS being revealed. We accept the evidence of DI D as to the “paranoia” of those acting, or contemplating acting, as a CHIS and accept that they would view the disclosure of the disputed information as a breach of confidence that would significantly undermine their confidence in having their identities protected.”
It is therefore our opinion that for these issues the balancing test for confirming or not that information is held is not made out
This should not be taken as an inference that there is or is not any further information to that which has been disclosed to you in responding to this request.
The exemptions listed above and explanatory notes are shown here: