1

INTRODUCTION

1.1

I refer to the above request for information which was received by Central Scotland Police on 6 October 2009, and which relates to a request for data processed by the Force in relation to the leaking of a list of alleged British National Party members.

The request was worded as follows:

I can confirm that I am a member of Central Scotland Police and have had no previous knowledge of, or involvement with, the circumstances surrounding this request.

I am satisfied that the questions above constitute a valid request in terms of the Act

2

DELIBERATION

2.1

I am aware that the initial response from the Force indicated that it could neither confirm nor deny that Central Scotland Police holds the information requested, as it was not considered to be in the public interest to do so. In the information was held, the Force argued, it would in any event be exempt information by virtue of the exemptions contained in Section 34(1)(a)&(b) Investigations, and Section 35(1)(a)(b) or (g) law Enforcement. claimed FOISA exemptions under Section 30(c); Section 34(1)(a)(i); Section 35(1)(g); and Section 38.

I have now had the opportunity to review the reasoning which underpinned these exemption claims, and would offer the following observations.

2.2

The information requested by the applicant is salient to the release of a list of names, alleged to be members of the British National Party, which was brought to public attention in November 2008 and attracted considerable media interest.

In my view there are two key issues which might underpin any FOI request in relation to this list. Firstly, it is the view of some sectors of the public that the British National Party's views are extreme, and as such there might be a concern that individuals holding public office might be members of the organisation - the implication being that their support of the Party's extreme views might influence the discharge of their public duties.

Secondly, there is the question of data protection. Assuming that the list was genuine, the data therein arguable remained the property of the |British National Party and misuse of this by any third party might constitute an offence under the Data Protection Act 1998. The requester specifically highlights Schedules 2 and 3 of the Act as providing guidance and governance over the processing of such information.

I have considered the tests of Public Interest and Harm in relation to each of the requests detailed above. In applying these tests, I have examined those conditions which favour disclosure, and those which do not. The detail is as follows:

2.3

2.3.1

2.3.2

2.3.3

2.3.4

2.3.5

Considerations favouring disclosure

Accountability (1)

The purpose of the Act is to make public authorities more accountable and this factor, therefore, may be applied to a wide range of scenarios ranging from how an individual or a police force fulfils their role or function, to policy decisions that have been taken in relation to investigations, or indeed more general policy issues. Clearly, any suggestion that members of a public authority are alleged to be members of a political party widely believed to hold and espouse extreme views would raise important questions about the impartial discharge of that public authority and the transparency or otherwise of the discharge by staff of the authority's public duties.

I am of the view that this would be a reasonable argument in favour of disclosure.

Accountability (2)

The investigation of crimes and offences by the police is a core function. It is in the public's interest that police officers are seen to discharge their duties fairly, ethically and efficiently, and that there are processes in place to identify and deal appropriately with those who do not.

I am of the view that this would be a reasonable argument in favour of disclosure.

Accountability (3)

Notwithstanding that the information on the list of British National party members was made public, this appears to have occurred without the knowledge or consent of the Party Executive. The information therefore remained the property of the British National Party (the Data Controller), which meant that there were stringent constraints around what any other organisation or body could legally do with it. It would be legitimate for members of the public to be concerned about how any public authority handled any personal data which came into its possession otherwise than through the provisions of the Data Protection Act 1998.

I am of the view that this would be a reasonable argument in favour of disclosure

Public awareness and debate (1)

This would apply where disclosure could assist individuals by raising awareness of issues which may be of relevance to them. In this instance, sensitive personal information has been made public without the consent of the Data Controller and it could be argued that the activities of the police in relation to this information would contribute to the public debate on policing.

I am of the view that this is would be a reasonable argument in favour of disclosure.

Public awareness and debate (2)

Any suggestion that members of a public authority are alleged to be members of a political party widely believed to hold and espouse extreme views would raise important questions about the impartial discharge of that public authority and the transparency or otherwise of the discharge by staff of the authority's public duties.

I am of the view that this would be a reasonable argument in favour of disclosure.

2.4

2.4.1

2.4.2

Considerations favouring a position of neither confirming nor denying the possession of information.

Efficient and effective conduct of the Force

Non-disclosure may be justified where it can be argued that disclosure could have an impact upon the role of the police, and where this role could be compromised by the release of information. This could mean that the prevention or detection of crime, the apprehension or prosecution of offenders, or the administration of justice may be hindered as a result of the release of information.

Under Schedule 1 of the Police (Scotland) Regulations 2004, a member of a police force must at all times abstain from any activity which is likely to interfere with the impartial discharge of that member's duties or which is likely to give rise to the impression amongst members of the public that it may so interfere; and in particular a member of a police force shall not take any active part in politics.

In this context, a police force may elect this context, a police force might elect to conduct an internal investigation into the alleged membership of any police officer of the British National Party, this being implicit of taking an active part in politics. Depending upon the nature of the political activity which might realistically be undertaken, the police force might wish to ensure that, for a period, any individual under investigation was for a period unaware of the fact. An assertion that the information was held could alert any person to the fact that their activities might be the subject of an ongoing internal investigation. Equally, an assertion that such information is not held might suggest to an individual that their Force was unaware of their political activities and that any politically motivated behaviour on their part could continue unchecked. In either case, this could work against the best efforts of the police service to ensure that its members comply with the intent of the 2004 Regulations.

I am of the view that this would be a reasonable argument in favour of issuing a comment neither confirming nor denying the possession of the requested information.

Interests of individuals or third parties

This test applies where individuals' or third party interests might be jeopardised by the processing of information that relates to the personal affairs of individuals and/or sensitive information held about operational issues.

Membership of the British National Party is an emotive issue, as evidenced recently in national media coverage. Membership could be viewed by some individuals as a legitimate reason for attacking another individual, or the individual's property. In order to prevent or reduce the impact of such activity, a police force might consider it appropriate to establish whether any person or persons named on the list of British National Party members were resident in the Force area and thereafter offer them crime prevention or personal safety advice. Release of this information would clearly render any of these individuals and their property vulnerable to this sort of attack, which would be entirely counter to the intent of the police action.

Similarly, denying the possession of this information could have the same consequence. If the identity and residence of a named member of the Party was known to an individual who was interested in obtaining information about any supportive police activity or `target hardening' in relation to their place of residence, denial by the police of the fact would suggest that no additional support had been provided. This might, in the eyes of some individuals, make the notion of an attack attractive. Again, this would be entirely counter to the intent of any police action.

I am of the view that this would be a reasonable argument in favour of issuing a comment neither confirming nor denying the possession of the requested information.

2.5

Balancing Test

2.5.1

The accountability of public bodies is an important element in modern British society, a fact underscored by the levels of scrutiny and oversight to which the police and other law enforcement agencies are already subject. The policies of the British National Party are highly controversial and have historically attracted vociferous opposition.

2.5.2

I am of the view that any arguments presented in terms of Schedules 2 or 3 of the Data Protection Act 1998 are effectively negated by other parts of the Act which make provision for the processing of personal data. I am of the opinion that the argument initially advanced by Central Scotland Police, in that Condition 5 in Schedule 2 of the Act and Paragraph 2 of the data protection (Processing of Sensitive Personal Data) Order 2000 (SI 417/2000) as created by Condition 10 in Schedule 3 in the Act are relevant.

2.5.3

This then leaves the question of other uses of the information contained on the leaked list. I am of the view that the police service faces a difficult task in achieving a balance in this connection. Clearly, it is highly undesirable that the service has within its ranks officers or staff who would espouse political views which are considered extremist and there is an implicit responsibility for the Force to take robust measures to ensure that this is not the case. However, it is on balance preferable that police actions in this connection are not made public. In the first instance,

the nature of some internal police investigations are such that it is considered preferable that they are progressed without the knowledge of the subject officer(s) and confirmation of the fact that information has been used in relation to any such investigation could impact on its overall effectiveness.

Secondly there is the question of police officers' perceptions of the effectiveness of their own organisation and how that might influence their own behaviour. If a police force were to deny that any information contained in the British National Party list had been acted upon, this might suggest to any member of the force who was in fact a member that s/he was not the subject of any form of investigation. The net effect of this might be that the individual concerned could feel empowered, by default, to continue their membership of the Party, with the attendant risk that their personal political beliefs could become manifest in their dealings with members of the public.

2.5.4

Finally, there is the question of British National Party members themselves. While few would dispute that the party's political views are controversial, its members are entitled to the same level of protection and support from the police as other citizens. I am of the opinion that disclosure or non-disclosure of the information sought could compromise any efforts which might have been made by the police to provide some degree of support or reassurance to members of the Party and their families residing in the Central Scotland Police area.

2.5.5

I am therefore satisfied that both the Public Interest test, that in relation to the Efficient and Effective Conduct of the Force, and the test in relation to the Interests of Individuals and Third Parties, are weighted in favour of the force neither confirming nor denying possessing of the information requested, and I uphold the original decision.

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CONCLUSION

3.1

Having regard to all of the circumstances, I am supportive of the original decision.