Dear Ricki,

I acknowledge receipt of your e-mail dated 14^th May requesting that the Constabulary review its response to your request for information concerning the numbers of men arrested for kerb crawling.

My understanding is that the issues you have raised are that you object to the refusal notice issued on 29^th April stating that due to the very small number of arrests, it is very likely to lead to the identification of individuals in such circumstances as cannot be justified or comply with the data protection principles.

The review has been conducted in accordance to the Constabulary's review procedure and I have revisited all the issued relating to this request. I have had no previous involvement in the handling of the request or the previous refusal notice made under section 17 of the Act.

The request:

You made the following request on 20^th April 2009, with a due at the latest date by 19^th May.

a) released without charge

b) cautioned

c) charged

d) fined

e) If none of the above can be applied to each arrest I would like to know how the crime was dealt with.

On 28^th April, Mr Chris Harwood, my decision maker, wrote to you in compliance with s17 of the Act refusing to disclose to you a month by month breakdown including case disposal as the figures were so small in this County that he considered it likely that to disclose them would lead to the identification of individuals.

Role of the Reviewing Officer:

The Statutory Code of Practice issued under s45 of the Act advises public authorities to review decisions taken to refuse disclosure of information before a complaint is made to the Information Commissioner under s50.

My review will therefore determine whether in my opinion this Constabulary has com0plied with its legal obligation under Part 1 of the Freedom of Information Act 2000.

The Investigation/Findings of fact

In making my determination I have reviewed the information available to Mr Harwood, in the form of any data supplied to him from central records, and have taken the opportunity to speak to personnel who work in the enforcement role policing what I shall refer to as “Sex work.”

The offence which you are enquiring about is in common parlance called kerb crawling, or more properly soliciting a woman for the purpose of prostitution from a vehicle or having just got out of a vehicle.

In Wiltshire there is a very small amount of recognised “sex work.” In the period in question, the calendar year 2008, only 27 records exist for different identities of sex workers arrested for soliciting, and a number of these are aliases for each other.

Speaking with a Vice Officer at Swindon, I am informed that recent initiatives have now been put into place, and that significant effort is no being expended in dealing with the knock-on social effect of “sex work.” Since the recent start of such activity, arrests are already double the annual total for 2008 in a period of just 3 months.

Analysis

General Right of Access:

Section 1(1) of the Act provides that any person making a request for information to a public authority is entitled (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is so, to have that information communicated to the unless a lawful exemption from Part II of the Act may be properly applied.

I find that in response to s1(1)(a) there is no confirmation that the Constabulary does as a fact, hold information which meets the terms of this request.

On examination of the information however, I find that in the 12 month period, 010108 to 311208 there were only three persons arrested for the offence, spread across the year. To break down the month in which they were arrested, and the disposal method would add significantly to the possibility of these men being identified.

Section 40 of the Freedom of Information Act states:

Personal information

(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.

I consider that this information, because of the scarcity of data, falls within the terms section 1(1) of the Data Protection Act 1998 definition of personal data which states:

“Personal data” means 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, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;

On that basis I agree that to answer fully your questions and to include a breakdown would be processing those individuals' data unfairly and not in compliance with the principles of the Act.

Determination:

On reviewing this request, and the refusal notice of 28^th April I find that on this occasion we did not comply with s1 (1) (a) of the Act. I have now confirmed that the Constabulary does hold the information subject of this request.

I also find the decision to apply s40 (2) of the Act to the request to be valid.

Conclusion:

It is clear, by way of disclosing there were only three individuals arrested in Wiltshire in such circumstances in 2008 that the issue of kerb crawling may not be as prevalent as elsewhere in the country. It is equally valid to observe that since resources have been directed at this issue, there has been a significant increase in arrests. If this trend continues, I am confident that if you were to repeat the request for the period 010109 to 311209 next year, the numbers would be sufficient to disclose with little or no chance of identifying any offenders publicly.

I an mindful that this response is still not entirely providing answers to what you have requested, but I hope that I have demonstrated the openness of our review process, our willingness to identify any fault in the process, and also that we are willing to reconsider the position should the quantity of data increase significantly.

Should you still find that you are dissatisfied with my response, you have the right to complain to the Information Commissioner, whose contact details may be fond by following the link to: http://www.ico.gov.uk/Home/what_we_cover/freedom_of_information.aspx

Please contact me on the number above if you wish to discuss this further.

Yours sincerely

Andy Holyoake

Decision Maker,

Freedom of Information Office