RIPA Requests (1814_15)

Request

Under a FOI request could I ask for the annual totals for the years 2012, 2013, 2014 & 2015 to date in request to how many RIPA requests have been made by your authority?

CLARIFIED

I want communication and surveillance totals annually by year.

Response

Figures for Communications Data and Directed Surveillance are attached for 2012, 2013 and 2014.

However I am not required by statute to release all of the information requested.  Data for 2015 has been withheld.  This letter serves as a Refusal Notice under Section 17 of the Freedom of Information Act 2000 (the Act) for any other information regarding the number of requests for the use of powers under RIPA.

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.

Data for 2015 is exempt by virtue of the following exemptions:

Section 23 (1) – Information relating to the Security bodies

Section 24(1) – National Security

Section 31 (1) (a) (b) – Law Enforcement

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 class-based exemption and therefore there is no requirement to conduct a harm or public interest test

Sections 24, and 31 are 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.

Overall harm

Every effort should be made to release information under FOI. However, to provide data for part of a year would provide a level of data that could undermine on-going 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. 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 any case due to the legal constraints under Chapter 1 of Part 1 of the RIPA legislation (interceptions) it may actually be a criminal offence to do so (under Section 19).

The Police Service is committed to demonstrating proportionality and accountability regarding surveillance techniques to the appropriate authorities. However providing detailed data would alert offenders of the tactics being used and provide them with the opportunity to avoid detection.

Factors favouring disclosure for S24

The public are entitled to know how public funds are spent and providing information relevant to the question could lead to a better-informed public that can take steps to protect themselves

Factors against disclosure for S24

Providing detailed information on security measures would make them 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.

Factors favouring disclosure for S31

Providing the information would enable the public to see where public funds are being spent. Better public awareness may reduce crime or lead to more information from the public.

Factors against disclosure for S31

Disclosure of the information requested could identify intelligence required for the investigation of a crime within the force area. This would allow individuals to analyse the information and identify the focus of police activity, enabling those committing crime to move their operations, destroy evidence or go ‘underground’. This would hinder the prevention and detection of crime and consequently, the force’s law enforcement capabilities would be affected and individuals placed at risk.

Balance test

The security of the country is of paramount importance and the Police service will not divulge information 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 providing 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 providing this information.

In addition to the attached response West Midlands Police can neither confirm nor deny that it holds any other information you requested 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, and 31 are 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.

Section 30 is a qualified class-based exemption and there is a requirement to conduct a public interest test.

Overall harm for partial NCND

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 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.

Factors favouring confirmation or denial for S24

Confirmation or denial that any other information relevant to the request exists would inform the public regarding how public money is spent and the use of these techniques

Factors against confirmation or denial for S24

Confirming or denying that any other information exists would undermine National Security by making the use of these measures less effective. This would Compromise ongoing or future operations and increase the risk of harm to the public.

Factors favouring confirmation or denial for S31

Confirming or denying that any other information relevant to the request exists allow the public a better understanding of how public money is spent and awareness of techniques used to combat crime.

Factors against confirmation or denial for S31- By confirming or denying that any other information relevant to the request exists, law enforcement tactics could be compromised which could hinder the prevention and detection of crime. More crime could be committed and individuals placed at risk.

Factors favouring confirmation or denial for S30 – By confirming or denying that any other information relevant to the request exists would enable the public to obtain satisfaction that all investigations are conducted properly and that their public money is well spent.

Factors against confirmation or denial for S30 – By confirming or denying that any other information relevant to the request exists, would hinder the prevention or detection of crime, undermine the partnership approach to law enforcement , which would subsequently affect the force’s future law enforcement capabilities.

Balance test

It is appreciated that members of the public will naturally be interested in investigative techniques used under RIPA legislation.  Likewise, we also understand some people believe surveillance (in any form) is used too widely, and therefore an unnecessary intrusion into their privacy.  However, taking into account the fact that the Police Service are already scrutinised as detailed above and effective operational law enforcement would be compromised by any disclosure, at this moment in time, it is our opinion that for these issues the balance test for disclosure is not made out.

None of the above can be viewed as an inference that any other information does or does not exist.

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