Microsoft Word - Mr TODD Response letter 28 05 10.doc

MPS Public Access Office

P.O Box 57192
London
SW6 1SF

Telephone: 020 7161 3500
Facsimile: 020 7161 3503
Email: [email address]

www.met.police.uk/dataprotection

   Date: 28 May 2010



Our ref: 2009100005899

Freedom of Information Act - ICO Appeal

Dear Mr Todd,

Further to our letter dated 9 March 2010, I am now able to provide a response in
regards to information held on the Section 44 authorisations database, which holds
information retained from manually held files.

As explained within my previous letter, the MPS can confirm the information is no
longer exempt by virtue of Section 12 of the Act.

The question subject to the ICO Appeal, is for the following information:

“Please may I have a complete list of:
1.  The durations of each request:
2.  Whether it is a renewal
3.  The time it took for it to be confirmed by the Home Office
Broken down by each year since 2000 when the Act was passed.”

The MPS has now retrieved the information held on the computer database and has
considered providing the information held within the scope of your request in
accordance with our obligations under Section 1(1)(b) of the Act.

DECISION

Question One and Three - Partial disclosure
The MPS is able to provide a partial answer for question 1 and 3 in regards in relation
to  MPS Section 44 authorisations only between 19 February 2001 and 18 May
2009.

The MPS is not required to provide the information for this part of your request in
relation to all other forces authorisations by virtue of Sections 24(1) and 31(1)(a)(b).

Question Two - Full disclosure
The MPS is able to provide details held in regards to whether authorisations for all
forces have been listed on the database as a ‘renewal’ or not, broken down by each
year since 2000 when the Terrorism Act was passed.

RESPONSE

Question One - Partial disclosure
The duration of each request (in regards to MPS authorisations ONLY between 19
Feb 2001 and 18 May 2009 (the date of your request)

Your original request was initially dated 18 May 2009. AC John Yates (on behalf of
the Commissioner), confirmed within an MPA Committee Review Report (dated 7
May 2009), that at the time of the report, the MPS had in place an area-wide
authority for Section 44, signed by ACSO and reviewed every 28 days or close to.1

Therefore in partial answer to question one, the MPS confirm that our
authorisations for the use of Section 44(1)&(2) lasted for the majority of the time
from February 19th 2001 up until the date of your request (18 May 2009).

I have attached to this final response a list of the duration of each Section 44
authorisation between 19 Feb 2001 and 18 May 2009.

Since August 2009 however, the MPS has moved from a more standard London-
wide use of the authorisation to a patchwork use of Section 44 authorisations within
the Metropolitan Police District.

There were no MPS authorisations for the use of Section 44 of the Terrorism Act
Act 2000, prior to 19th February 2001.

Question One and Three - Fully exempt
The duration of each request and the time it took for it to be confirmed by the Home
Office (if it was confirmed) (in regards to all other police forces authorisations
held on the database

Information pertinent to this request has been carefully considered as exempt by
virtue of Sections 24(1) (National Security) and 31(1)(a)(b) (Law Enforcement).

I would first like to take this opportunity to provide some detail in relation to the use
and sensitivities surrounding the police services ability to use ‘Stop and Search’
under the Terrorism Act 2000 as an effective tool to combat terrorism in the UK.

‘Stop and search’ under the Terrorism Act 2000 remains to be an important tactic
and tool in the MPS’s counter terrorism strategy and therefore must be as
operationally effective as possible. The authorisations are used as a tool to try and
prevent, deter and disrupt terrorist activity.

Section 44 under the Terrorism Act 2000 is a stop and search power which can be
used by virtue of a person being in a designated area.

1 http://www.mpa.gov.uk/committees/sop/2009/090507/10/ Section 44 Terrorism Act 2000 - MPA Committees - tactical use
review dated 7 May 2009 by AC John Yates on behalf of the Commissioner

Where an authority is in place, police officers in uniform or PCSOs if accompanied
by a police officer can stop and search any person. (PCSO’s cannot search the
person themselves, only their property.)

Under the Act officers can also seize and retain any article found during the search
which the officer reasonably suspects is intended to be used in connection with
terrorism.

The MPS appreciate that this request has not specifically asked for location details.
However, since your original request was responded to, there has been an agreed
change of stance by the Association of Chief Police Officers (ACPO) and the MPS
ACSO (Assistant Commissioner Specialist Operations) in regards to the national
confirmation of Section 44 authorisations in place at force level.

Each police service within the UK will now confirm if they have a Section 44
authorisation in place at that current time, although forces still will not provide details of
exactly where for operational reasons. This change in stance was to maintain the
openness and transparency of forces within the UK, without identifying tactically where
and exactly when these authorisations were put into place. This new stance was also
agreed to increase public confidence in forces use of Stop and Search under Section
44 of the Terrorism Act, in conjunction with public reports on police use of Section 44.

At the end of this letter I have provided you with relevant links to information about the
use of Section 44 which I hope you will find of interest.

The MPS hold a list containing the data you have requested. The data-set which I
believe is captured by your request includes;
•  A list of the date and time the Chief of Police signed the authorisation for the
relevant force (start time),
•  The expiry date of the authorisation and
•  The date and time the Home Office confirmed the authorisation.

Prejudice Test for Section 24(1) and Section 31(1)(a)(b)

In taking into consideration the new stance by ACPO and ACSO in confirming which
forces currently have a Section 44 authorisation in place, this in effect allows for the
public and any would be terrorist to try and use the information to map where they are
less likely to be monitored or where they may have been monitored by police within a
given force area at a specific point in time.

Whilst it was accepted that this new level of detail disclosed by forces would not
necessarily allow a terrorist to try and ascertain whether they are or are not being
monitored (as site specific detail has not been disclosed), disclosure of the requested
information for this FoIA question would provide detailed intelligence into the public
domain which would detrimentally effect national security and law enforcement.

As police forces now nationally confirm if they have a section 44 authorisation in place,
it is likely forces will therefore also confirm if they have had one in place in the past. To
pinpoint and disclose specific dates and times when all forces authorisations were put
in place and approved by the Home Office would provide would-be terrorists and
those who may have historically plotted at specific points in time in the past, to gain an
in depth understanding of the times their actions may have been monitored . It also
allows them to obtain a view of when they may have had a window of opportunity to

go undetected when looking at the patterns of authorisation use. This level of detail
would also be useful for use as intelligence for current or future plots against the
United Kingdom.

Placing this level of detail into the public domain, considering forces will now confirm if
they had or have a Section 44 authorisation in place, would allow those with the time
and capacity to start to map which forces had the authorisation in place, and then in
turn work out the likelihood of how long that particular force was monitoring their force
area down to the very second.

With the absence of a location and/or location type, the time data alone appears to be
fairly innocuous. However, with the change of stance by ACPO and ACSO, disclosure
would make the mapping of location and time that much easier for those with the
necessary time and know-how. Therefore in consideration of the information which is
now easily accessible by the public, this specific time-led information when considering
location must be deemed as sensitive. It may collectively put national security
operations and the public at unnecessary risk, by detrimentally effecting forces abilities
to prevent and detect crime and making our ability to safeguard national security that
more vulnerable.

The MPS is concerned that coupled with geographic information about where in the
UK Section 44 authorisations are operating or have operated, terrorists may be able to
engage in more detailed ‘pattern spotting’ to identify peaks and troughs in police
operational activities which may relate to national security. We do appreciate this
activity is more difficult considering the fact that the date/time data can not alone be
clearly linked to geographical areas. However over time there is the possibility that
numbers of authorisations would be sufficiently low as to allow this type of inference to
be made, particular considering forces recent conformation of whether they have an
authorisation in place. Additionally, considering many forces have not used Section 44
authorisations ‘force wide’, such inferences and ‘pattern spotting’ would be easier to
decipher than it appears.

It is vital to note that the original information that leads to a Section 44 authorisation
within a force is time specific, and often emanates from intelligence. Disclosure would
therefore be most valuable if a would-be terrorist could work out which authorisations
were intelligence-led, based on the time they were in place. The requested detail must
therefore be withheld as that information is used at specific given times for the
purpose of safeguarding national security and law enforcement.

In regards to terrorist related activity, timing is of the essence and precision of timing is
invaluable to those who wish to cause harm. The power is in place to create a hostile
environment for terrorists to operate in. it is public knowledge that ‘dry runs’ are often
used by terrorists when planning attacks. To provide specific details in regards to
when the police are and have been able to use this valuable tool would provide
precious intelligence to would be plotters. By requesting from forces when they have
had an authorisation in place in the past, together with this level of detail for this
request, would enable them to map whether they may have been subject to detection
in the past. This is valuable knowledge to plan dry runs and attacks for the future, by
working out where forces are likely to issue an authorisation and for how long. This
action would affect the ability of the forces to protect national security as well as
damage our ability to prevent, detect crime and thus apprehend or prosecute
offenders.

This threat and risk is particularly relevant as each renewal is distinct and differs
depending on the threat or received intelligence. Smaller provincial forces (which may
usually have no reason to invoke an authorisation) in particular would not wish to
confirm the exact time and date an authorisation was in place or due to expire. This
authorisation may have been based on received intelligence which is time specific.
Disclosure of this level of detail would therefore detrimentally affect national security
and the ability to enforce the law, by providing such an advantage to those who may
use it to circumvent the law.

There is also the possibility that would-be terrorists could exploit access to this data in
future to engage in more effective hostile reconnaissance. Hostile reconnaissance
includes activity by terrorists, for example to check for security vulnerabilities in
policing tools and vulnerable targets and locations. If a particular target, for example a
transport hub, was selected, those individuals carrying out reconnaissance missions of
the site could potentially make use of this type of data to start to ascertain whether
their unusual behaviour had been identified by use of a ‘re-applied’ authorisation or
not, to also work out whether their activity may be monitored in that location in the
future by the very second, using the specific time data you have requested. This type
of operational ‘testing’ of the security systems in place around potential targets could,
over time, assist terrorists in selecting vulnerable targets for attack. This would have a
damaging impact on national security about our ability to detect, prevent crime and
prosecute offenders.

While the operational deployment of Section 44 is undertaken by uniformed officer and
is therefore overt the basis of Section 44 authorisations are underpinned by
intelligence, either because there is believed to be a heightened terrorist threat in a
particular area at a given time, and/or because efforts are being made to protect a
valuable target or symbolic location at any given point time. It would not be in the
interests of national security or law enforcement to provide a list detailing back to 2000
of exactly when to the very second an authorisation had been deployed. It would detail
how many times the authorisation has been deployed and provide a pattern of how
many authorisations are deployed and for how long. This is particularly harmful in
terms of ‘one off’ authorisations where was not previous in place, as this may indicate
it was intelligence-led in regards to suspicious activity. It may also indicate a
vulnerable target needed to be protected at a given time, which also allows would-be
terrorists to plan how long in advance they need to partake in criminal activity in a
given area before an authorisation is likely to be to begin. Disclosure of such patterns
leading back to 2000, would have a damaging impact on national security about our
ability to detect, prevent crime and prosecute offenders.

Requesting an authorisation is a tactic the police may chose to deploy when in the
receipt of specific threat intelligence and therefore authorisations in a particular area
against a particular ‘target’ may vary according to the circumstances at the time.
Therefore disclosure of the specific dates and times together with whether the
authorisation is classed as a ‘renewal’, coupled with now public confirmation of
whether or not a Section 44 authorisation was in operation within a specific force area
at a given point in time, allows terrorists to ascertain with a greater degree of certainty
whether their activities (either in general or vis-à-vis a particular target) have come to
the attention of the authorities. This greatly assists those attempting to damage
national security and evade detection on possible future plots.

As previously explained, to be able to look back at dates the Section 44 authorisations
began, expired, was confirmed by the Home Office and to additionally be able to
consider whether this authorisation was a renewal or not, allows would-be terrorists to

test for windows of opportunity in the future, or to test the system if those with the
necessary intent are able to ascertain only one or two forces had an authorisation in
place at any given time. Should it appear that the particular authorisations were not
renewals, but instead were one off authorisations based on intelligence regarding
activity at a specific point in time, this would provide valuable intelligence to such
persons to be able to understand whether a particular force was likely to be aware of
their activity.

Considering this point, terrorists can map the information to try and ascertain whether
the particular force was routinely protecting a location (such as a critical national
infrastructure), or whether the authorisation was not a renewal, but instead based on
one off intelligence which may again indicate the force was monitoring terrorist activity
they may have partaken in.

Should terrorists use these patterns to seek to modify their operational behaviour in
response to any such suspicion, this would have an adverse effect on ongoing counter
terrorism operations. For example they may find the data is likely to indicate a Section
44 authorisation was used for a particular event. They will then be able to define how
long the MPS viewed the need for the authorisation to be in place to monitor
subversive activity. The authorisations do not necessarily last the full 28 days, they are
time dependant and duration is based on the risk of how long a threat may be in place.
This would enable those with criminal intent to map their activity around such
intelligence, and understand where they may be able to obtain a window of opportunity
to the very second, on specific days.

The MPS appreciate the difficulty on face-value in withholding the data, considering
forces will now confirm if they have a Section 44 authorisation in place. However, it is
imperative the MPS consider in detail, the risk of releasing such additional information
into the public domain and the value that disclosure of this time and date specific data
could be for would-be terrorists. It is paramount the MPS consider disclosure would
contribute to the ‘jigsaw effect’ in disclosure, where information over time can be
mapped to the operational disadvantage of the police services in the UK.

Home Office Decision Notice (FS50198733)2

I have reviewed the recent decision notice regarding Section 44 authorisations, and
find many points within this decision notice are relevant to this request.

Whilst the MPS appreciates this case was mainly based on the release of information
relating to the location of the authorisations, the Information Commissioner did
acknowledge that “the regularity and extent of Authorisations could readily be used by
terrorists to ascertain the likelihood of their activities coming to the attention of the
police or anti-terrorists agencies” (see paragraph 58).

The running argument of the Home Office was that to release authorisation details
would enable individual groups to identify whether or not their activities had come to
the notice of the authorities. This would have the potential to jeopardise ongoing
investigations.

Like the Home Office request which is subject this decision notice, your question also
requests all authorisations, since the Terrorism Act 2000 came into force, broken

2 http://www.ico.gov.uk/upload/documents/decisionnotices/2010/fs_50198733%20.pdf - ICO Decision Notice
08/02/2010 for the Home Office.

down by year, rather than just a sample from a set time period, or for a particular
geographical area (see paragraph 55).

The Information Commissioner accepted the argument that providing details of when
and where authorisations are and have been active could effect the publics’ behaviour,
and that this knowledge may also assist the terrorist to at least the same extent. The
Information Commissioner believed that such a wide ranging disclosure of information
would give a historic picture of events. It was his view that, were a terrorist to be aware
of the fact that an area was covered by an authorisation, or even very likely to be,
based on historical data, then the terrorist too could be more vigilant and take the
same steps that the complainant suggests the law -abiding public could take (to
possibly be more vigilant in relation to their actions in areas where Section 44
authorisations are or were in place). The Information Commissioner believed that
having knowledge of the times and dates (as well as maps of active areas in the case
of the Home Office), would be of considerable benefit to a terrorist or group of
terrorists who wished their activities to evade detection. The Information
Commissioner understood such activists would be more likely to move elsewhere and
any potential gain which the public would have had by knowing about the authorisation
would then be lost, as too would any advantage that the police had (see paragraph
57).

The decision notice stated that whilst the complainant may not accept that dates,
times and geographic locations are actually ‘background intelligence’ or ‘tactical
operational Police plans’, the Information Commissioner did not agree. The decision
notice continues to state that the regularity and extent of authorisations could readily
be used by terrorists to ascertain the likelihood of their activities coming to the
attention of the police or anti-terrorist agencies. The Decision Notice demonstrates
that if an authorisation is granted in one area which has not been covered by one
before (in effect a ‘non-renewal’), then a terrorist acting within that area is likely to
become suspicious that he is under surveillance and is likely to take appropriate action
to avoid detection (see paragraph 58). Finally, the decision notice also states that The
Information Commissioner believes that the information could be used by terrorists to
support and influence their activity (see paragraph 59).

The MPS find that considering forces now disclose if they have a Section 44 in place,
placing the additional information you have requested into the public domain would
cause the same harm and prejudice as identified in the decision notice.

Once again, the MPS do appreciate that forces as of late 2009 now confirm whether
they have an authorisation currently in place. However, the provision of specific dates
and times in a compiled list would still give activists that advantage over the MPS, in
regards to the explicit extent of police services use of this valuable tool to protect
national security and enforce the law. For the reasons described in this prejudice test,
the MPS exempts disclosure of the duration of authorisations and the time it was
confirmed by the Home Office, to protect national security and law enforcement
nationwide.

Public Interest Test for Section 24(1) - Question One and Three

Considerations favouring disclosure

Disclosure of how long Section 44 authorisations are in place would further
transparency and accountability of police forces. The public are interested in
understanding how long it takes for the Home Office to confirm an authorisation.

The use of Section 44 authorisations is of public interest at this time. There is concern
that forces have applied in the past a blanket approach to the use of this power, and
disclosure would go some way to showing the public how long these authorisations
tend to be in place.

Considerations favouring non-disclosure

For the reasons provided within the prejudice test. Disclosure would technically be
providing sensitive operational information into the public domain, which may enable
those with the time, capacity and inclination to look to map strategies used by the all
forces within the UK to protect national security.

There are some who are concerned that the information should be disclosed as
personnel within particular authorities may be incorrectly claiming they have the power
to act under the authority of the Terrorism Act 2000, either deliberately or unknowingly.
We are aware there is the opinion that disclosure
Disclosure would lead to greater public awareness as to when authorisations were in
place, so any possible misuse/abuse of the power could be prevented. The
Information Commissioner’s Office considered this opinion in regards to the Home
Office request, and the Decision Notice confirmed that this argument does not carry
much weight. The appropriate powers of authority are laid down within the Terrorism
Act 2000 itself and the Information Commissioner was not convinced that disclosure
(although we appreciate this Home Office request also included maps and further
location details) would prevent such alleged actions. The Commissioner believed that
if there is an abuse of power then this may indicate a training need that the police or
the public authority need to deal with (see paragraph 54 of the ICO Decision Notice for
the Home Office).

Taking this into account, and considering the data within the request remains sensitive
in the interests of national security, there is no intrinsic benefit in disclosure which
outweighs the stronger need to ensure the information remains exempt due to the
harm which may be caused by its release.

Based on this understanding, the MPS find it ‘reasonably necessary’ to apply the
exemption. The risk to national security and thus to the public would be further
increased, due to those with the capacity to map the data and use their new
understanding of police tactics on the use of Section 44 authorisations for criminal
benefit.

Considering this matter, the exemption must apply to ensure future operations are not
disadvantaged in any way, in relation to protecting the security or infrastructure of the
UK which is likely to be compromised with the release of the data. To disclose
information which would render security measures and tools in place as less effective
would not be in the public interest.

Public Interest Test for Section 31(1) - Question One and Three

Considerations favouring disclosure

A better awareness of how often and for how long Section 44 authorisations are put
into place may reduce crime by showing the MPS are using the tool proportionately,
as and when required to safeguard national security.

The public may also be interested in knowing how long within the designated 48 hours
the Home Office took to confirm on each authorisation that the authorisation was
approved.

Considerations favouring non-disclosure
Disclosure of the data would compromise law enforcement strategies and tactics, as
to enable would-be terrorists to gain an in depth understand of how often
authorisations are used and exactly when. This would allow them to try and take steps
to avoid detection in future plots, based on historical police action and methods.

Such an outcome would place individuals at increased risk and make it more difficult
to apprehend and prosecute offenders if the data is used to circumvent the law.

To hinder the prevention and detection of crime in such a way, would impact on
already stretched police resources. Action would need to be undertaken if terrorists
tried to map when for example, an authorisation is likely to begin and end, which in
turns provides them with a window of opportunity to partake in ‘dry runs’ and attack
sites and locations earlier than the police would usually have envisaged.

Final Balance Test

On weighing up the competing interests, I find the strongest interest favouring
disclosure is accountability. I find the strongest consideration favouring non-disclosure
is the risk of the data being used and manipulated by would-be terrorists as
intelligence (in conjunction with information which can now be publicly obtained
through forces), to further understand and evade operational tactics and strategy. This
may in turn threaten national security and the general public.

I do appreciate this may not be the full response you would have liked. However, I
base this decision on the understanding that the public interest is not what interests
the public, but is what would be of greater good for the community as a whole if the
information was disclosed.

Question Two - Full disclosure
Whether it is a renewal (in regards to all forces authorisations logged on the
database)

It is important to note that although the National Joint Unit (NJU) has identified whether
an authorisation should be listed as a ‘renewal’ or not (on the computer database),
each authorisation would have been treated on its own merits and not as an
ongoing power or blanket authority. This is because each authorisation is distinct
and treated as a fresh application. Each of them, therefore, may have been
different dependent on threat and intelligence.

It is also important to note, that information within the database is not exhaustive.
As you have requested information only held within the database, I have therefore
answered this part of your question based on information entered into the database
only, and not by using the further information contained within the manual files.

The category below marked ‘unknown’ is where the entry in the database was not
completed and so was blank. The accurate detail would be held within the manual
files, and is so not pertinent to this request as you have requested information held
within the database.

Authorisations classed as ‘renewals’ on the Section 44 authorisation database

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Renewal
1  19  102 41  111 104 131 97  166 63
Non-
0  63 91 67 27 91 28 139 24 17
Renewal
Unknown  5 194
2 97 38 2 1 1 4 0

In regards to MPS-only authorisations for the data-set you have requested, each
MPS authorisation between 19 February 2001 and 18 May 2009 (date of your
request) may be classed on the system as a ‘renewal’. However, each
authorisation would have been treated on its own merits and not as an ongoing
power or blanket authority as each renewal is distinct, and still may have been
different dependent on threat and intelligence.

Question 3
The time it took for it to be confirmed by the Home Office (if it was confirmed) (In
regards to MPS only authorisations between 19 February 2001 and 18 May 2009)
- Full disclosure

I am happy to be able to provide you with a list of the time it took for each
authorisation to be confirmed by the Home Office for the MPS authorisations
between 19 February 2001 and 18 May 2009.

I have therefore attached to this final response a list of the time it took for
each authorisation to be confirmed by the Home Office for authorisations
between 19 Feb 2001 and 18 May 2009 (date of your request).

Since August 2009, the MPS has moved from a London-wide use, to a patchwork
use, of Section 44 authorisations within the Metropolitan Police District.

Kind regards,

S. Strong
A/ Higher Information Access Manager

Internet Links on the use of Section 44 Stop and Search

MPA Section 44 - Terrorism Act 2000 - Tactical Use Review
http://www.mpa.gov.uk/committees/sop/2009/090507/10/

Ministry of Justice Statistics Bulletin - Arrests for recorded crime (Notifiiable
Offences) and the Operation of Certain Police Powers under PACE England
and Wales 2006/07
http://www.justice.gov.uk/docs/arrests-recorded-crime-engl-wales-2006-07-b.pdf

Statistics on Race and the Criminal Justice System - 2006/07
http://www.justice.gov.uk/docs/stats-race-criminal-justice.pdf

Police Powers and Procedures England and Wales 2007/08 - dated 30 April
2009
http://www.homeoffice.gov.uk/rds/pdfs09/hosb0709.pdf

February 2010 Statistical Bulletin (Operation of police powers under the
Terrorism Act 2000 and subsequent legislation - Quarterly update to
September 2009)

http://rds.homeoffice.gov.uk/rds/pdfs10/hosb0410.pdf

Home Office Statistical Bulletin (Police Powers and Procedures 2008/09)
published 15 April 2010

http://rds.homeoffice.gov.uk/rds/pdfs10/hosb0610.pdf