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Friday, December 02, 2011

POLICE HAVE THE RIGHT TO REMAIN SILENT




On the 12th October 2011, the Metropolitan Police Service (MPS) set up a perimeter around a leafy southeast London street. Residents were prevented from entering their properties, and police officers refused to comment. A telephone call to police later established that if the nature of the incident was made public it may, in the emotive parlance of the fuzz, 'cause panic'. The following is the result of one man’s painstaking attempts to bring the police to book. But be warned… it may tax all but the legally-minded.

The Metropolitan Police Service (MPS) has completed its review and has decided to uphold the use of section 30(1) (a)(i)(ii) investigations and proceedings conducted by public authorities and section 40(2) personal information.

Please see the legal annex for the sections of the Act that are referred to in this letter.

REASON FOR DECISION

The review takes note of your comment in your original request 'I must also add that I feel the Freedom of Information Act was not designed to keep information out of the public domain which may assist members of the public to assist the police, and to allay any fears.' In this respect I thought that it might assist you if I outline the statutory requirement set out by the Freedom of Information Act, 2000 (FoIA), within which a request for information can be answered. Under Section 1(1) of FoIA any person making a request for information to a public authority is entitled, subject to other provisions of the Act, (a) to be informed in writing by the public authority whether it holds the information requested, and (b) if so, to have that information communicated to him. The review is guided by the Association of Chief Police Officers (ACPO) manual on the Act which advises 'there will be occasions when to do either of these things will be in contravention of legislation. The main reason for not complying with section 1(1) of the Act is that some kind of prejudice would occur. This is labelled by the Police Service as 'harm' and although no such definition exists within the Act, this is the beginning of the process that will determine whether an exemption could apply. In the policing context harm is defined as: the undesired consequence of the disclosure of information which will or could lead to the physical or mental harm of a person, damage to property, loss of public confidence or a reduction in the effective provision of public service delivery.'

In this case the review is aware that the MPS has confirmed information pertaining to your request is held and in addition you have been advised the nature of that incident. However, any further details have been exempted by virtue of section 40(2) relating to personal information of third parties and section 30(1)(a)(i)(ii) relating to investigations and proceedings conducted by a public authority

Blackstone's Guide (Third edition) to FoIA states 'In common with all freedom of information legislation, the Freedom of Information Act 2000 contains a number of provisions defining particular types of information which public authorities are not obliged to disclose... such exemptions exist because the public interest dictates that certain information should not be available to the public. It will, for example, generally be undesirable for significant threats to... personal privacy to arise as a result of disclosures made under the freedom of information legislation.'

Whilst the MPS were satisfied that the nature of the incident could be disclosed to you under FoIA it should be borne in mind that requests under the Act are not private transactions. Both the request itself, and any information disclosed, are considered suitable for open publication. This is because, under FoIA, any information disclosed is released into the wider public domain, effectively to the world, not just to one individual. As such, the Metropolitan Police Service is committed to providing its responses to requests for information on its Publication Scheme as a Category of Information. The link to the MPS FoIA Disclosure Log can be found here: http://www.met.police.uk/foi/disclosure/disclosure_log.htm

I have therefore considered your original request for the MPS to disclose 'I would like to know what was claimed by this hoaxer and I would also like to know if this has happened in the past' within the provisions set out by the Act and uphold the original decision by Lisa Rogers to engage section 30(1) (a) (i) (ii) investigations and proceedings conducted by a public authority and section 40(2) personal information which I find to be robust in this case. I will therefore not re-iterate the reasons already provided to you but hope to explain why in this case the MPS has engaged sections 30(1)(a)(i)(ii) and section 40(2).



Personal data

Information Tribunal EA/2010/0089 points out 'the question of whether the exemption in section 40(2) of FoIA is engaged is a question of Law based upon the analysis of the facts. This is not a case where the Commissioner was required to exercise his discretion'Personal data is defined in section 1(1) of the Data Protection Act (DPA) 1998 as data which relate to a living individual who can be identified (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller.

The review takes note in your original request you state '…officers refused to comment on what this incident was about…a later phone call to police informed me that if police were to inform the general public about the nature of the incident 'it may cause panic'…attempts to find the answer the following day suggested this was due to a 'hoax call' but the police could not say what the nature of this call was 'due to the Data Protection Act'. In accordance with the Code of Practice (FoIA, section 45), I would like to advise you that this complaint process provides a fair and thorough review of handling issues and of decisions taken in pursuant to the Act, including decisions taken about where the public interest lies in respect of exempt information. This enables a fresh decision to be taken on a reconsideration of all the factors relevant to the points you have raised.

The review also notes your comment in your request for a review 'I would like to know what was claimed by this hoaxer. I would also like to know if this has happened in the past'.The review also takes note of the comment by Lisa Rogers 'I do not believe that the data subject (in this instance the suspect/s and witnesses) would agree to the public disclosure of their personal information.' On this basis the review is therefore satisfied that the information being requested constitutes someone's personal data as it has a real and direct relationship to a living person. In addition the person's involved in this incident would be the focus of the information being requested and is 'biographical' in a significant sense as it affects their personal privacy of being identified in a specific location at a specific time. In this respect the review confirms that the exemption at Section 40(2) is engaged.

The review must also go on to consider whether provision of the requested personal data would breach any of the principles of the DPA 1998.

The review takes note of your comment 'Initially the claim was made by the MPS that this was 'a hoax call', so clearly no arrests were made given no firearms or perpetrators were found. Clearly my previous email asks for confirmation of this, and of the incidents nature, and I made no request for names or addresses.' In this case the review is guided by Data Protection Act legislation as follows. The First Principle (DPA) states that personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless (a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. It can be seen then, that the First principle imposes a requirement of 'fairness'. The DPA principles also legislate the way in which a 'data controller' in this case the MPS must 'process' personal data. The word 'process' includes 'disclosure of the information or data by transmission, dissemination or otherwise making available'.

The most relevant Schedule 2 condition to consider in this case is the sixth condition, in that the processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject. It can be seen therefore, that this aspect of the legislation requires a balance of one party's legitimate interests against those of another. To assist in this aspect the review is further guided by the Information Tribunal [EA/2007/0060] which states '... the application of [Schedule 2] Paragraph 6 of the DPA involves a balance between competing interests broadly comparable, but not identical, to the balance that applies under the public interest test for qualified exemptions under FOIA. Paragraph 6 requires a consideration of the balance between: (i) the legitimate interests of those to whom the data would be disclosed which in this context are members of the public (section 40(3)(a)); and (ii) prejudice to the rights, freedoms and legitimate interests of data subjects…' This review has applied the same considerations here.

(i) The legitimate interests of those to whom the data would be disclosed which in this context are members of the public (FoIA section 40(3) (a))

The review can see no legitimate interest being achieved by disclosure of the information you have requested namely'what was claimed by this hoaxer and if this has happened in the past'by way of a FoIA disclosure and considers the legitimate interests of the public are already met by the information already provided to you in the original MPS disclosure that 'Police were called to investigate a firearms incident at a private residence'.

(ii) Prejudice to the rights, freedoms and legitimate interests of data subject who in this case are any persons involved in this incident.

In this case the legitimate expectation of any person involved in this incident is that their personal information will not be disseminated within the public domain. Their legitimate expectation would be that their personal information would be treated confidentially and not disclosed to the public. In this case by releasing the information you have requested there is a likelihood of breaching the Data Protection Act - as there would have been a legitimate expectation of any person in this incident that their personal details confirming anything relating to them would not be publicly released under a FoIA disclosure.

The review takes note of your comment' Attempts to find the answer the following day suggested that this was due to 'a hoax call' The Information Commissioner's Office (ICO) Decision Notice [FS50321032] regarding similar exemption under Section 40(2) of FoIA concluded in that case 'because disclosure would enable private information to be deduced about individuals, by others who possessed suitable 'corroborating information'; because wider knowledge is likely to have undesirable consequences for those individuals, and because those individuals have a reasonable expectation the information will remain confidential, the Commissioner concludes that disclosure of the requested information would be unfair.' The review is also guided by Information Tribunal EA/2010/0089 which mentions 'there is an inherent tension between the objective of freedom of information and the objective of protecting personal data. It has been observed that section 40(2) of FoIA is a 'complex provision'. There is no presumption that openness and transparency of the activities of public authorities should take priority over personal privacy…'

After weighing up the competing interests I have determined that the disclosure of the above information would not be in the public interest. The review is further guided by the Information Tribunal [EA/2007/0060] which states ' because the processing must be 'necessary' for the legitimate interests of members of the public to apply we find that only where (i) outweighs or is greater than (ii) should the personal data be disclosed.' I consider that the benefit that would result from the information being disclosed does not outweigh disclosing information relating to 'what was claimed by this hoaxer and if this has happened in the past'.


Investigations

The review takes note of your comment 'Why you apply this request to a certain 'balance' is beyond my understanding. Was it a hoax, or 'a firearms incident'?' The review also notes the MPS refusal notice which states 'In relation to this incident we hold various CAD reports (created when a call to police is received) and an intelligence report..' The review is further guided by ACPO manual of guidance which states 's30 creates an exemption for information which is or has been held for the purposes of a criminal investigation...This exemption covers information held at any time for the purposes of an investigation, whether the case is ongoing or abandoned.'

Section 30 is a class based exemption. In order to demonstrate that it is engaged it is simply necessary to show that the information being withheld has been held by the public authority for the purpose specified. In the case of section 30(1)(a)(i)(ii) the information in question must relate to an investigation which the public authority has a duty to investigate with a view to it being ascertained whether a person should be charged with an offence or whether a person charged with an offence is guilty of it. Where this exemption is engaged, the public interest must favour the maintenance of the exemption over disclosure of the information. Where the public interest favours disclosure, the information in question should be disclosed despite the exemption being engaged.
The Information Commissioner (ICO) confirmed, in decision notice FS50241687, that the consideration of this exemption is a two-stage process. "First, the information must fall within the class specified in the exemption. Second, this exemption is qualified by the public interest." The review will consider these two stages below.

Stage 1 - Information must fall within the class specified in the exemption

In this case the review takes note of the MPS response which states 'The reason that these documents have been created is to ascertain whether or not a crime has been committed' Police forces have a statutory duty to fulfil in relation to the investigation of incidents and allegations. Therefore an initial investigation must be completed which amongst other things, secures available evidence such as witness and any other evidence. Therefore the review is satisfied the data consisting of the CAD and Intelligence report is captured and held by the MPS in order to fulfil its statutory duties in relation to the investigation of offences and is therefore relevant for the provisions of section 30(1)(a)(i)(ii).

Stage 2 - this exemption is qualified by the public interest

The review takes note of your comment in your original request 'At 12/10/2011 police set up a perimeter around parts of Brockley SE4....' the review also takes note in the initial MPS response which states ' given that the date you have requested the information for is recent' In this regard the review if further guided by ICO Decision Notice FS50244614 which states '...In striking the balance of interest, regard should be had, inter alia to such matters as the stage or stages reached in any particular investigation or criminal proceedings, whether and to what extent the information has already been released into the public domain, and the significance or sensitivity of the information requested.' ACPO further advises ' a critical issue is likely to be the timing of the disclosure.' In this case your request for information under FoIA has been made within 1 day of the incident.

In ICO Decision Notice FS50140994 the Commissioner's consideration of the public interest test, the following factors were considered pertinent:

                    The stage or stages reached in any particular investigation or criminal proceedings


The significance or sensitivity of the information to the investigation
Whether confidentiality is critical to the success of the investigation and
Whether the information reveals techniques used by the public authority which could harm the investigation.
Public interest
The review refers to your comment previously mentioned 'Why you apply this request to a certain 'balance' is beyond my understanding...' The ICO has provided guidance on the meaning of "public interest". This guidance states that "Something which is "in the public interest" may be summarised as something which serves the interests of the public." To clarify, the public interest is not what the public may find interesting but rather something that provides a real and tangible benefit to the community.
ACPO guidance on conducting the public interest test states 'The public interest test should be applied in a manner that is in-keeping with the spirit of the Act. That is to say there is an assumption that public authorities will provide information requested unless an exemption applies and the public interest favours retention of the information over disclosure.'

The review has found that the public interest considerations and balance test in the MPS refusal notice to be robust in this case and finds, as mentioned in the original response, 'to disclose details in relation to specific incidents would not only disclose the personal details of those affected, but would also provide information which could prejudice our ability to conduct thorough investigations. By disclosing details of investigations to the public we would therefore hinder our law enforcement capabilities.' The review therefore supports the view that the public interest favours in this case non-disclosure of the withheld information. This is also supported by ACPO guidance 'to be valid factors in favour of non-disclosure, there must be a clear relationship between the factors, the information and the exemption and this must be articulated.' The review is therefore satisfied that all the considerations have been identified and explained in the original MPS response.

Whilst I appreciate this is not the response you would have wished to receive, I hope the explanation provided clarifies why on this occasion the MPS maintains its stance to engage sections 30(1)(a)(i)(ii) and section 40(2).

LEGAL ANNEX

Section 1 provides that -

1) A public authority which, in relation to any request for information, is to any extent relying on a claim that any provision of Part II relating to the duty to confirm or deny is relevant to the request or on a claim that information is exempt information must, within the time for complying with section 1

(1), give the applicant a notice which-

(a) states that fact,
(b) specifies the exemption in question, and
(c) states (if that would not otherwise be apparent) why the exemption applies.

Section 17(1) of the Act provides:

(1) A public authority which, in relation to any request for information, is to any extent relying on a claim that any provision of Part II relating to the duty to confirm or deny is relevant to the request or on a claim that information is exempt information must, within the time for complying with section 1
(1), give the applicant a notice which-

(a) states that fact,
(b) specifies the exemption in question, and
(c) states (if that would not otherwise be apparent) why the exemption applies.



Section 30 (Investigations and proceedings conducted by public authorities) of the Act provides:

(1)Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of-
(a)any investigation which the public authority has a duty to conduct with a view to it being ascertained-
(i)whether a person should be charged with an offence, or
(ii)whether a person charged with an offence is guilty of it,

Section 40 (Personal information) of the Act provides:

(1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.
(2) Any information to which a request for information relates is also exempt information if-
(a) it constitutes personal data which do not fall within subsection (1), and
(b) either the first or the second condition below is satisfied.
(3) The first condition is-
(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of "data" in section 1(1) of the [1998 c. 29.] Data Protection Act 1998, that the disclosure of the information to a member of the public otherwise than under this Act would contravene-
(i) any of the data protection principles, or
(ii) section 10 of that Act (right to prevent processing likely to cause damage or distress), and
(b) in any other case, that the disclosure of the information to a member of the public otherwise than under this Act would contravene any of the data protection principles if the exemptions in section 33A(1) of the [1998 c. 29.] Data Protection Act 1998 (which relate to manual data held by public authorities) were disregarded.
(4) The second condition is that by virtue of any provision of Part IV of the [1998 c. 29.] Data Protection Act 1998 the information is exempt from section 7(1)(c) of that Act (data subject's right of access to personal data).


Data Protection Act 1998:

http://www.legislation.gov.uk/ukpga/1998/29/contents

Link to Information tribunal Decision notice EA/2010/0089
http://www.informationtribunal.gov.uk/Public/search.aspx

Link to Information Tribunal Decision Notice EA/2007/0060:
http://www.informationtribunal.gov.uk/DBFiles/Decision/i85/HoC3.pdf

Link to ICO Decision Notice FS50244614:
http://www.ico.gov.uk/tools_and_resources/decision_notices/~/media/documents/decisionnotices/2010/fs_50244614.ashx.

Link to ICO Decision Notice FS50321032:
http://www.ico.gov.uk/~/media/documents/decisionnotices/2011/fs_50321032.ashx.

Link to Decision Notice FS50241687
http://www.ico.gov.uk/~/media/documents/decisionnotices/2010/FS_50241687.ashx.

Link to ICO Decision Notice FS50140994
http://www.ico.gov.uk/~/media/documents/decisionnotices/2008/FS_50140994.ashx



COMPLAINT RIGHTS

If you are dissatisfied with this response please read the attached paper entitled Complaint Rights which explains how to contact the Information Commissioner with your complaint.

Yours sincerely

Mike Lyng
Quality and Assurance Advisor

"Total Policing is the Met's commitment to be on the streets and in your communities to catch offenders, prevent crime and support victims. We are here for London, working with you to make our capital safer.”



So, now you know...


1 comments:

Anonymous said...

INFERENCE MAY BE DRAWN FROM THAT SILENCE.