1. For the most recent 60 months held on record, please break down by calendar year:
a. The total number of Unmanned Aerial Vehicles (UAVs), or drones, owned by WMP
b. The amount of money spent on the drones, including maintenance and any other relevant costs.
c. The number incidents reported to WMP that involve the use of drones. Please provide the subcategory or classification of each report, such as type of crime, if any. Please also provide any details recorded about the incident.
Please see attached our response, while the majority of the information is attached to this email 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 all specific details of the incidents.
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 details of three incidents and ‘any details recorded’ of the data released here. These are exempt by virtue of the following exemptions. (Please note that, in order to assist I have provided a brief summary of each incident).
Section 30 (1) (a) (b) Investigations
Section 40 (2) Personal Data
These exemptions and explanatory notes are shown here:
Section 40 (2) is an absolute and class based exemption if to release the information exists would breach the third party’s data protection rights. In this case to release this personal information would not constitute fair processing of the data and therefore would breach the first of the principles within the Data Protection Act 1998. As this exemption is class based I am not required to identify the harm in disclosure and in this instance I believe that the right to privacy outweighs any public interest in release
In line with the above, I am required to complete a Prejudice Test/Public Interest Test (PIT) on disclosure. Please find this PIT below.
In this case to provide details of an investigation would allow anyone involved – including the offenders – to ascertain the level of police knowledge of the incident.
Release of information through the Freedom of Information Act removes any of the legal strictures and assumptions of confidentiality associated with the due legal process. As a consequence any on-going or subsequent court proceedings could be jeopardised where release of information regarding an individual was identified.
Considerations that favour confirming or denying
Disclosing information about investigations would provide a greater transparency in the investigating process and the actions of a public authority. It is clear that there is a public interest in public authorities operating in as transparent a manner as possible, as this should ensure they operate effectively and efficiently.
Considerations against confirming or denying
Where current or future law enforcement role of the force may be compromised by the release of information, then this is unlikely to be in the interest of the public. In this case, for the reasons outlined above, confirming or denying the existence of an investigation could jeopardise future police operations and compromise the future prevention and detection of crime.
Efficient and Effective Conduct of the Service
There is an inherently strong public interest in public authorities carrying out investigations to prevent and detect crime. This ensures that offenders are brought to justice and that the necessary checks and balances are in place to safeguard public funds and resources. To allow the effectiveness of investigations to be reduced, as described in the harm above, is not in the public interest. West Midlands Police need to be allowed to carry out investigations effectively away from public scrutiny until such times as the details need to be made public, otherwise it will be difficult for accurate, thorough and objective investigations to be carried out.
It would not be in the public interest to confirm or deny the existence or otherwise of information that may be of assistance to offenders/prevent an individual from being brought to justice. The right to a fair trial is of paramount importance and any disclosure which could enhance media attention prior to any proceedings could compromise an individual’s right to a fair trial under the Human Rights Act.
For a public interest test, issues that favour release need to be measured against issues that favour non-disclosure. The public interest is not what interests the public, or a particular individual, but what will be the greater good, if released, to the community as a whole.
The issue of transparency is noted. However, on balance it is considered that the public interest in providing the information is outweighed by the potential impact release would have on future law enforcement activities.
Although providing the information might provide a greater transparency in the investigating process, there are already a number of checks and balances on authorities to assess whether investigations are conducted appropriately. There are legal processes in place to ensure that all parties are given access to all the appropriate information at the time of any trial and subsequently through court records. In addition if a person feels that they have been treated inappropriately by the police there are clear processes in place to ensure that matters are investigated thoroughly and appropriately.
Releasing information outside of such a schedule could undermine the smooth running of these processes and would impact on future judicial proceedings. Therefore the wider public interest lies in protecting the ability of the public authority to conduct an effective investigation and consider the outcome.
Having considered the arguments for and against, the public interest test favours withholding some of the requested information. West Midlands Police will not disclose information that could reveal personal information or could compromise the future law enforcement role of the force.
In addition, in regard to any information relating to the covert use of Drone/ UAV’s, West Midlands Police neither confirms nor denies that it holds any other information relevant to the request by virtue of the following exemptions:
Section 23(5) – Information supplied by, or concerning, certain security bodies
Section 24(2) – National Security
Section 31(3) – Law Enforcement
Section 23 is an absolute class-based exemption and 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 denying that any other information is held as well as carrying out a public interest test.
Harm for the partial NCND
As you may be aware, disclosure under FOIA is a release to the public at large. Whilst not questioning the motives of the applicant, confirming or denying that any other information is held regarding the use of this specialist equipment for covert use, would show criminals what the capacity, tactical abilities and capabilities of the force are, allowing them to target specific areas of the UK to conduct their criminal/terrorist activities. Confirming or denying the specific circumstances in which the police service may or may not deploy UAS, would lead to an increase of harm to covert investigations and compromise law enforcement. This would be to the detriment of providing an efficient policing service and a failure in providing a duty of care to all members of the public.
The threat from terrorism cannot be ignored. It is generally recognised that the international security landscape is increasingly complex and unpredictable. 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’, and in July 2009, when it was reduced to ‘substantial’. Nevertheless, the UK continues to face a sustained threat from violent extremists and terrorists and the current UK threat level is set at ‘substantial’.
It is well established that police forces use covert tactics and surveillance to gain intelligence in order to counteract criminal behaviour. It has been previously documented in the media that many terrorist incidents have been thwarted due to intelligence gained by these means.
Confirming or denying that any other information is held in relation to the covert use of UAS would limit operational capabilities as criminals/terrorists would gain a greater understanding of the police’s methods and techniques, enabling them to take steps to counter them. It may also suggest the limitations of police capabilities in this area, which may further encourage criminal/terrorist activity by exposing potential vulnerabilities. This detrimental effect is increased if the request is made to several different law enforcement bodies. In addition to the local criminal fraternity now being better informed, those intent on organised crime throughout the UK will be able to ‘map’ where the use of certain tactics are or are not deployed. This can be useful information to those committing crimes. It would have the likelihood of identifying location-specific operations which would ultimately compromise police tactics, operations and future prosecutions as criminals could counteract the measures used against them.
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 Neither Confirming Nor Denying for Section 24
The information if held simply relates to national security and confirming or denying whether it is held would not actually harm it. The public are entitled to know what public funds are spent on and what security measures are in place, and by confirming or denying whether any other information regarding the covert use of UAS is held, would lead to a better-informed public.
Factors against Neither Confirming Nor Denying for Section 24
By confirming or denying whether any other information is held would render 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.
Factors favouring Neither Confirming Nor Denying for Section 31
Confirming or denying whether any other information is held regarding the covert use of UAS would provide an insight into the police service. This would enable the public to have a better understanding of the effectiveness of the police and about how the police gather intelligence. It would greatly assist in the quality and accuracy of public debate, which could otherwise be steeped in rumour and speculation. Where public funds are being spent, there is a public interest in accountability and justifying the use of public money.
Some information is already in the public domain regarding the police use of this type of specialist equipment and confirming or denying whether any other information is held would ensure transparency and accountability and enable the public to see what tactics are deployed by the Police Service to detect crime.
Factors against Neither Confirming Nor Denying for Section 31
Confirming or denying that any other information is held regarding the covert use of UAS would have the effect of compromising law enforcement tactics and would also hinder any future investigations. In addition, confirming or denying methods used to gather intelligence for an investigation would prejudice that investigation and any possible future proceedings.
It has been recorded that FOIA releases are monitored by criminals and terrorists and so to confirm or deny any other information is held concerning specialist covert tactics would lead to law enforcement being undermined. The Police Service is reliant upon all manner of techniques during operations and the public release of any modus operandi employed, if held, would prejudice the ability of the Police Service to conduct similar investigations.
By confirming or denying whether any other information is held in relation to the covert use of UAS would hinder the prevention or detection of crime. The Police Service would not wish to reveal what tactics may or may not have been used to gain intelligence as this would clearly undermine the law enforcement and investigative process. This would impact on police resources and more crime and terrorist incidents would be committed, placing individuals at risk. It can be argued that there are significant risks associated with providing information, if held, in relation to any aspect of investigations or of any nation’s security arrangements so confirming or denying that any other information is held, may reveal the relative vulnerability of what we may be trying to protect.
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 regarding the covert use of UAS if to do so would place the safety of an individual at risk, undermine National Security or compromise law enforcement.
Whilst there is a public interest in the transparency of policing operations and providing assurance that the police service is appropriately and effectively engaging with the threat posed by various groups or individuals, there is a very strong public interest in safeguarding the integrity of police investigations and operations in the highly sensitive areas such as extremism, crime prevention, public disorder and terrorism prevention.
As much as there is public interest in knowing that policing activity is appropriate and balanced this will only be overridden in exceptional circumstances. The areas of police interest discussed above are sensitive issues that reveal local intelligence and therefore it is our opinion that for these issues the balancing test for confirming or denying whether any other information is held regarding the covert use of UAS, is not made out.