RESOURCES DIRECTORATE

RESOURCES DIRECTORATE
Corporate Support and Information Services - Data Protection
Police Headquarters, Saunders Lane, Hutton, Preston PR4 5SB

Tel: 01772 413327 Fax: 01772 412123 Email: [Lancashire Constabulary request email]

Mark Walker

Solidarity Trade Union

Via www.whatdotheyknow.com 7^th January, 2010

Email: [email address]

Dear Mr Walker

FREEDOM OF INFORMATION APPLICATION REFERENCE NO: 2090//09

I refer to your request for an internal review to the response previously provided to your FOI request, which was received on the 7^th December, 2009.

Your appeal was against the response, set out in Bryony Hopkinson's letter of the 2nd November, which provided a refusal notice under Section 17(1) in respect of the Force's obligations under Section 1(1)(a) to confirm or deny whether information was held, in relation to the `leaked British National Partnership lists'.

The Panel noted that your initial response was provided within 20 working days and that some information was provided relevant to your request. This was by way of a statement which was issued by Lancashire Constabulary in November, 2008 and an explanation of the legal entitlements of the police service in processing sensitive personal data, in accordance with the relevant conditions of Schedules 2 and 3 of the Data Protection Act 1998.

The Panel has now considered your internal review request and the further points which you have made, which you wish to be considered. However, it considers that the position as previously set out in the response of the 2^nd November, 2009, stands.

Under S17(1) of the Freedom of Information Act, the force can neither confirm nor deny it holds any further information in relation to investigations it may have or have not conducted, which have not subsequently been placed in the public domain, by virtue of S30(3) Investigations, S31(3) Law Enforcement and S40 (5) (b)(i) Personal Information. 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 our 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 we have a member of staff with the same name as one that appears on the list.

Before refusing to comply with the provisions of S1(1)(a) of the Freedom of Information Act, the force 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 S30 and S31 are, so the following public interest factors are relevant.

S30 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 FOIA forces may provide different responses and application of the S30 exemption in some areas and not others would in fact immediately expose such investigations.

S31 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 Majesties 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.

In respect of the specific points which you have raised relating to the public interest issues, the Panel would make the following points:

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

The Force is not aware of any ongoing national debate that the government should change the law allowing police membership of the BNP.

(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.

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.

(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.

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. There would appear little point in this subject being re-examined by the Solidarity Trade Union. Unison is the only recognised trade union for police staff.

Further, as highlighted in the original response, there is a legal bar to membership of a political party within the police service. It is difficult to see how information relating to investigations will change or even be relevant to any debate regarding changing of Police Regulations.

Should you still be dissatisfied with my response, please do not hesitate to write to me at the address above. Of course, you have the right to complain further to the Information Commissioner should you still be dissatisfied. For completeness, the address is as follows:

Information Commissioner's Office, Wycliffe House, Water Lane Wilmslow, Cheshire, SK9 5AF

Tel: 0845 630 6060

Yours sincerely

Carl Melling

Data Protection and Information Officer

NOT PROTECTIVELY MARKED