REVIEW OF FREEDOM OF INFORMATION REQUEST

Michael Traill

Reference Number 1412

Freedom of Information (Scotland) Act 2002

I refer to the above request for information which was received by Central Scotland Police on 25^th January, 2010, as below:

“My request is for information relating to payments made to informers during 2009. Please provide a breakdown of each transaction for each informer and for what reason the money was provided. In recognition that you cannot provide names for obvious reasons, simply labeling people as informer 1, informer 2 etc is perfectly acceptable”

The initial response from the Force claimed FOISA exemptions under Section 34(3) - which was read in conjunction with Section 35(2)(a); Section 39(1); Section 35(1); Part 2, Section 34; Part 2 Section 35 and Part 2 Section 35(1), and now review the reasoning which underpinned these exemption claims, and would offer the following observations:

Harm

Covert Human Intelligence Sources (CHIS) are an integral component of the police intelligence-gathering and investigative process, and provide valuable information, often at great risk to themselves and their families.

Where CHIS are identified, substantial physical harm, or mental trauma can emerge as significant threats to CHIS. This can be particularly marked in relation to serious crime, although it would be inaccurate to suggest that CHIS who provide information in relation to less serious crimes are any less vulnerable.

The disclosure of information relating to the total and highest amounts paid to CHIS and the location of these payments (in terms of each force) could allow people (particularly) involved in serious and organised crime to interpret these payments across forces. It is entirely feasible that, thereafter, they would be able to construct linkages with policing and other law enforcement activities which have had some impact upon their own criminal networks. In this respect, I agree with the original assertion that such disclosure would, or would be likely to, result in such persons actively seeking to identify CHIS within their organisation and using extreme violence against them or their relatives.

In addition, given the inherent sensitivities surrounding CHIS handling, disclosure of this information could easily serve as a deterrent to existing or prospective CHIS from providing information to the police. I therefore agree with the original assertion that this would, or would be likely to, prejudice substantially the prevention or detection of crime and the apprehension or prosecution of offenders by reducing the flow of information to the police service and intelligence agencies. I also agree with the original assertion that it would also have a substantial prejudicial impact on the ability of such authorities to collect reliable and accurate intelligence and would result in them becoming dependant on more costly and time consuming methods of collecting intelligence.

The use of CHIS is legally provided for in the Regulation of Investigatory Powers Act. This legislation requires investigating authorities to take into account the provisions of the Human Rights Act when using CHIS (and other covert techniques). In this context, police forces are reminded of their obligation under Article 2 of the Human Rights Act which requires them to protect human life - a caveat which in my view underscores the sensitivity of such information and the potential implications of its being disseminated beyond the control of those who hold it. The stated case of Van Colle v Chief Constable of Hertfordshire Police, cited in the original assertion, serves in my view to further reinforce this point.

I would add that information relating to CHIS is also protected during court proceedings and is viewed as sensitive material. In the majority of cases, information relating to CHIS will only be provided to a court on a sensitive disclosure schedule and is not generally considered in open court (unless it will directly assist the prosecution or aid the defence). CHIS material will often also be subject to Public Interest Immunity. This demonstrates the courts' recognition that there is an inherent risk in the open discussion of information relating to CHIS unless it is critical in a particular case or there is a public interest in disclosure.

I would conclude by pointing out that CHIS information within law enforcement agencies is tightly controlled, and that even information relating to the payments provided to CHIS is released on a strictly `need to know' basis.

Public Interest Test - In addition to any local issues

Considerations Favouring Disclosure

Accountability

When information disclosed relates directly to the efficiency and effectiveness of the force or its officers. 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 from how an individual or the force fulfils their role or function, to policy decisions that have been taken in relation to investigations or general policy issues. In this instance, disclosure allows public scrutiny of information relating to CHIS.

I agree that this is a reasonable argument in favour of disclosure.

Public Awareness and Debate

Where disclosure can assist individuals by raising awareness of issues which may be of relevance to them. In this instance, there has been public concern about the use of CHIS by law enforcement bodies, and disclosure of this information would contribute to more accurate public debate, allowing the opportunity to correct speculation and falsehoods.

I agree that this is a reasonable argument in favour of disclosure.

Use of public funds

Where public funds are being spent, there is a public interest in accountability and justification.

Disclosure of this information would enlighten members of the public as to the approximate amounts of money spent by the Constabulary on CHIS. This will promote transparency and accountability where expenditure of public funds is concerned.

I agree that this is a reasonable argument in favour of disclosure.

Favouring Non-Disclosure

Efficient and Effective Conduct of the Force

The current or future law enforcement role of the force may be compromised by the release of information, i.e. where the prevention/detection of crime, the apprehension/prosecution of offenders or the administration of justice may be hindered as a result of the release of information. Disclosure of the requested information would impact on the ability of police forces to gather valuable intelligence.

I agree that this is a reasonable argument in favour of non-disclosure.

Interests of individuals or third parties

Where individuals or third party interests might be jeopardised by release of information that relates to personal affairs of individuals and/or sensitive information held about operational issues. An informant provides the information solely on the grounds that it is completely confidential; disclosure, of any kind, could adversely affect the reputation of an individual with dangerous consequences.

I agree that this is a reasonable argument in favour of non-disclosure.

Public Safety

There may be occasions where the release of information relating to public safety may not be in the public interest. Public safety is of paramount importance to the policing purpose and must be considered in respect of every release. In this instance it is likely that particular individuals would be placed at risk if their identities were to become public knowledge. Release of this information may also adversely affect wider public safety if the criminal fraternity/less law abiding individuals are provided with a tactical advantage over the police.

I agree that this is a reasonable argument in favour of non-disclosure.

Flow of Information to the Service/ Force

Release of information would act as a deterrent to the public to provide information to the force. There is a need to protect the flow of information from informants and the public, to allow all to have confidence that their information will be treated sensitively and appropriately. If the relationship between the force and members of the public/CHIS were impeded, the gathering of information to enable the force to perform its public service functions would become increasingly difficult. The use of informants takes place in an environment of absolute trust and confidence. Anything which undermines this ethos would have a detrimental effect, reducing the quality of information the service receives.

I agree that this is a reasonable argument in favour of non-disclosure.

Human Rights, Morals and Ethics

The public interest will not be served if disclosure breaches the obligations placed on an authority under the European Convention on Human Rights, particularly the right to life, fair trial and privacy. Particularly relevant here is the obligation, under Article 2 of the Human Rights Act, which requires police forces to protect human life. Disclosure of CHIS information would also compromise individuals' right to privacy and a private life as defined in Article 8 of the Human Rights Act.

I agree that this is a reasonable argument in favour of non-disclosure.

Statutory Oversight

The Office of the Surveillance Commissioner (OSC) has a statutory responsibility for overseeing the use of CHIS and other covert policing techniques, by way of a regular inspection programme. To date OSC annual reports provide only the total number of CHIS across UK police forces and does not provided any breakdown of payments made to informants or global figures about CHIS costs.

Furthermore, individuals who are believe they are the subject of unlawful reporting by a CHIS have the right to request an investigation by the Investigatory Powers Tribunal (IPT). Where an authority is found to have acted improperly, appropriate compensation and redress may be sought through the courts and the authority referred to the OSC. (It is worth noting that the IPT's activities are protected from disclosure under section 23 of FOIA 2000). The degree of oversight police forces are subject to in this area weakens the argument that the public need further information to judge the value and effectiveness of CHIS.

I agree that this is a reasonable argument in favour of non-disclosure.

Balancing Test

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, through the Office of the Surveillance Commissioner. All police forces are subject to regular inspections by this body.

I am of the view that disclosure of the information sought could significantly compromise the future law enforcement role of the police service (and other agencies) and, in turn, put at risk the safety of individuals and the greater general public.

I am also concerned that disclosure of this information would establish a precedent for disclosure of information relating to CHIS, which could have much further-reaching consequences in relation to the safety of CHIS and their relatives, and also in relation to the continued effective investigation of criminal activity.

I am therefore supportive of the decision not to disclose the requested information on the basis articulated in the original claim of exemption.