Mr M Walker

[email address]

17 December 2009

Dear Mr Walker

FREEDOM OF INFORMATION - Internal Review

I refer to your e-mail dated 7 December 2009 in which you requested an internal review be undertaken relating to the decision communicated to you on 2 November 2009, not to disclose information you had requested under the provisions of the Freedom of Information Act 2000.

I understand that your request for an internal review relates to a request for information originally received by Cumbria Constabulary on 5 October 2009 and that you wish the following points to be considered within the review.

1) The public would assume that the Police forces had obtained and reviewed a copy of the leaked BNP list as there is a policy banning BNP members from serving in the force and the list was leaked onto the Internet (via Wikileaks). Several forces have publicly disciplined workers on the basis that they were on this list. At the time Spokespersons for Forces were happy to tell the Press that they were "scouring" the list for people to discipline. Several forces have also confirmed that they hold the list for this purpose and others in response to FOI requests. We argue that claiming exemptions on the grounds you do is therefore misconceived.

2) The only criminal charge we are aware of relates to Matt Single, the person convicted under Data Protection law for leaking it. No other criminal matter relating to the list has been brought before the courts. It is difficult to understand what kind of criminal investigations might be prejudiced by answering our request, therefore.

3) We argue that it would be possible for you to disclose information in response to our request that does not relate to the areas covered by the exemptions. A blanket refusal is not a proportionate response.

4) You have failed to fully consider the public interest in disclosure. Specifically we would like the Review to consider the public interest in:-

a) Assisting public understanding of an issue that is subject to current national debate

b) Enabling a proper debate of issues relating to Data Protection, Privacy, Freedom of Association, Freedom of Expression and misuse of Government powers to the detriment of individual rights. We argue that an informed debate cannot take place without wide availability of all the relevant information.

c) Allowing individuals affected adversely in Employment information which they can refer to in order to challenge discrimination on political grounds.

d) Allowing analysis and scrutiny of the effect and implications of a major policy decision with Human Rights implications

e) Providing our Union sufficient information to allow us to make representations on this issue. See Case No A.31/00 relating to the enforcement of The Open Government Code of Practice on Access to Government Information enforced by the Parliamentary Ombudsman. This is particularly important to us as we have members who are or may be directly affected in their employment.

f) Providing our Union with information which can be used to see the practical implications of a limitation on the right of Freedom of Association. This is important as further restrictions are being considered. In fact we recently gave evidence to the Smith review (concerning Education) on this point, amongst others.

g) Providing information which makes individuals and institutions accountable for decisions.

Your original request is outlined below

In November 2008 the membership list of the British National Party (BNP) was published online. On September 1, 2009 a disgruntled former official Matt Single was convicted in relation to this for offences under the Data Protection Act.

I refer to Schedule 1 of The Data Protection Principles.

Under Schedule 1, any use of 'sensitive personal data' must be Processed only when at least one of the conditions in Schedule 2 is met, and At least one of the conditions in Schedule 3 is also met.

Please tell me if the Cumbria Constabulary has processed any data relating to the leaked British National Party membership list.

Please tell me which of the conditions in Schedule 2 and Schedule 3

were met when processing sensitive personal data?

Has sensitive personal data been used for any purposes other than

comparing against the Cumbria Constabulary Police personnel database?

Who was responsible for the decision to compare sensitive personnel

data against Cumbria Constabulary Police's personnel data?

What were the grounds for such a decision?

I request the minutes of any meeting held to come to such a decision.

Please describe the process used in making such a decision and whether the consequences of this decision, if any, were assessed.

I have reviewed this request and the subsequent response released to you and I would not proffer any changes to the original information you received.

Cumbria Constabulary can neither confirm nor deny it holds any information in relation to investigations it may have or have not conducted, which have not subsequently been placed in the public domain. Not only would this undermine any current investigation by alerting those who are suspected of criminal activity, but it may also thwart any such investigation which is being managed as a covert operation. This in itself would disclose tactical options, undermining future operations, but also in this case potentially disclose personal data of an individual. This is because the list to which you refer contained the names of individuals. To confirm, or deny that certain action may or may not have been taken will reveal whether an individual named was suspected of being employed by the force. This may not in fact mean they are a member of the BNP but in fact do no more than simply confirm that there was a member of staff with the same name as one that appears on the list.

Before refusing to comply with the provisions of Section 1(1)(a) of the Freedom of Information Act, Cumbria Constabulary also has to analyse any public interest factors in neither confirming nor denying that information is or is not held, if any of the exemptions cited are qualified in nature. Both Sections 30 and 31 are such exemptions, so the following public interest factors are relevant:

Section 30- Investigations

Favouring confirmation or denial:

Confirming the existence of information would show that the force conducted an investigation, which the public would expect.

Against confirmation or denial:

An investigation if unknown could be compromised and it could hinder the prevention or detection of crime. That may even be because under the Freedom of Information Act 2000, police forces may provided different responses and application of the Section 30 exemption in some areas and not others would in fact immediately expose such investigations.

Section 31 Law Enforcement

Favouring confirmation or denial:

Some information regarding the ability to check against the list is already in the public domain and its full usage would make the public better informed.

Against confirmation or denial:

Law enforcement tactics could be compromised and there could be a hindrance to the prevention or detection of crime.

Balance of Public Interest

At this time the potential harm to current and future investigations outweighs any public benefit in knowing if any additional information is, or is not held. Police Officers and staff are held to public account for their actions by the misconduct regulations and the force is held to account for investigating such matters appropriately by Her Majesty's Inspector Of Constabulary, and/or in some cases by the Independent Police Complaints Commission. There is no further tangible community benefit in complying with Section 1(1)(a) of the Act at this time.

This response should not be taken as an inference that Cumbria Constabulary does or does not hold any further information in relation to your request.

In may assist you to know that the Police Service would be legally entitled to process the sensitive personal date anyway, under Schedule 2 Condition 5 and Schedule 3 paragraph 10 (Statutory Instrument 417/2000, the Data Protection (Processing of Sensitive Personal Data) Order 2000, paragraph 2). The grounds for any decision would be that being a member of the BNP is incompatible with the role of a police officer/police staff and would be regarded as gross misconduct requiring formal action. This does not however mean that Cumbria Constabulary has taken such action at this time.

Please see below the response to the additional points that you raise in your e mail dated 7 December 2009 that you wished the review to consider.

Point (a)

I am unaware of any ongoing national debate that the government should change the law allowing police membership of the BNP.

Part (b)

All information relating to the barring of police force members from political party membership is already a matter of public record. This information can be found in Hansard and media reports of the time when the current Police Regulations were debated in open parliament. The debate has already been concluded.

Part (c)-(g)

Although the Police Federation is not a trade union per se, they and other staff associations were engaged in internal consultation discussions with regard the implementation of the most recent changes to Police Regulations. We can therefore see little point in this subject being re-examined by the Solidarity Trade Union. Unison is the only recognised trade union for police staff.

As you may well be aware, there is a legal bar to membership of a political party within the police service.

COMPLAINT RIGHTS

I would like to take this opportunity to advise you of your further right of complaint, to the Information Commissioner, if you remain dissatisfied with how your request has been dealt with.

For information on how to make a complaint to the Information Commissioner's Office please visit the website at www.informationcommissioner.gov.uk. Alternatively, phone or write to:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Telephone: 01625 545 700

Yours sincerely

T Bathgate

Terry Bathgate

Chief Inspector

Freedom of Information
Email [email address]
Tel: 01768 217133

Fax: 01768 217638

My Reference FOI 475/09 IR
Your Reference

Chief Constable
Craig Mackey

Police Headquarters
Carleton Hall
Penrith, Cumbria
CA10 2AU

www.cumbria.police.uk