BNP membership list

Dear Mr Walker

FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI2145/1

I write in connection with your request for information dated and received
on 6th October 2009.

Your request will now be considered in accordance with the Freedom of
Information Act 2000 (the Act). You will receive a response within the
statutory timescale of 20 working days as defined by the Act, subject to
the information not being exempt or containing a reference to a third
party. In some circumstances West Mercia Police may be unable to achieve
this deadline. If this is likely you will be informed and given a revised
time-scale at the earliest opportunity.

There may be a fee payable for the retrieval, collation and provision of the
information you request. If this is the case you will be informed and the 20
working day timescale will be suspended until we receive payment from you. If
you chose not to make payment then your request will remain unanswered.

Some requests may also require either full or partial transference to
another public authority in order to answer your query in the fullest
possible way. Again, you will be informed if this is the case.

Should you have any further enquiries concerning this matter, please write
or telephone the Information Compliance Unit quoting the reference number
above.

Yours sincerely

Miss L MacKinnon

Information Compliance Assistant

Information Compliance Unit

Information Management and Technology Department

01905 331565

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Dear Mr Walker

FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI 2145

I write in connection with your request for information which was received
on 6^th October 2009. Please find below the response to your request:

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.

1. Please tell me if West Mercia Police has processed any data relating to
the leaked British National Party membership list.

2. Please tell me which of the conditions in Schedule 2 and Schedule 3
were met when processing sensitive personal data?

3. Has the sensitive personal data been used for any purposes other than
comparing against the West Mercia Police personnel database?

4. Who was responsible for the decision to compare the sensitive personnel
data against West Mercia Police's personnel data?

5. What were the grounds for such a decision?

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

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

REPLY Section 1 of the Freedom of Information Act 2000 (FOIA) places two
duties on public authorities. Unless exemptions apply, the first duty at
s1(1)(a) is to confirm or deny whether the information specified in a
request is held. The second duty at s1(1)(b) is to disclose information
that has been confirmed as being held. Where exemptions are replied upon
section 17 of FOIA requires that we provide the applicant with a notice
which: a) states that fact b) specifies the exemption(s) in question and
c) states (if that would not otherwise be apparent) why the exemption
applies.

West Mercia Police can neither confirm nor deny that it holds the
information relevant to your request as the duty in s1(1)(a) of the
Freedom of Information Act 2000 does not apply, by virtue of the following
exemptions:

S30(3) Investigations

S31(3) Law Enforcement

S40(5)(b)(i) Personal Information

West Mercia Police 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 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.

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

It may assist you to know that the Police Service would be legally
entitled to process this sensitive personal data 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 the force have taken such action at this time.

Your attention is drawn to the below which details your right of
complaint.

Should you have any further enquiries concerning this matter, please write
or telephone the Information Compliance Unit quoting the reference number
above.

Yours sincerely

Miss R Forrest

Information Compliance Unit

Information Management and Technology Department

West Mercia Police

PO Box 55

Hindlip

Worcester

WR3 8SP

01905 331545 / 331565

West Mercia Police in complying with their statutory duty under sections 1
and 11 of the Freedom of Information Act 2000 to release the enclosed
information will not breach the Copyright, Designs and Patents Act 1988.
However, the rights of the copyright owner of the enclosed information
will continue to be protected by law. Applications for the copyright
owner's written permission to reproduce any part of the attached
information should be addressed to The Force Solicitor, West Mercia Police
Headquarters, PO Box 55, Hindlip, Worcester, WR3 8SP.

COMPLAINT RIGHTS

Are you unhappy with how your request has been handled or do you think the
decision is incorrect?

You have the right to require West Mercia Police (WMP) to review their
decision.

Prior to lodging a formal complaint you are welcome and encouraged to
discuss the decision with the person that dealt with your request.

Ask to have the decision looked at again -

The quickest and easiest way to have the decision looked at again is to
telephone the person named at the end of your decision letter.

That person will be able to discuss the decision, explain any issues and
assist with any problems.

Complaint

If you are dissatisfied with the handling procedures or the decision of
WMP made under the Freedom of Information Act 2000 (the Act) regarding
access to information, you can lodge a complaint with WMP to have the
decision reviewed. WMP must be notified of your intention to complain
within 2 months of the date of its response to your Freedom of Information
request. Complaints should be made in writing and addressed to:

West Mercia Police Headquarters

Information Management and Technology Department

Hindlip Hall

Hindlip

PO Box 55

Worcester

WR3 8SP

In all possible circumstances, WMP will aim to respond to your complaint
within 2 months.

The Information Commissioner

After lodging a complaint with WMP if you are still dissatisfied with the
decision you may make application to the Information Commissioner for a
decision on whether the request for information has been dealt with in
accordance with the requirements of the Act.

For information on how to make application to the Information Commissioner
please visit their website at www.informationcommissioner.gov.uk
Alternatively, phone or write to:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Phone: 01625 545700

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Dear Mr Walker

FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI 2145

I acknowledge receipt of your e-mail dated 7^th December 2009 requesting
that West Mercia Police review its response regarding your recent Freedom
of Information request.

Please be advised that this matter has been referred to the Force's
Internal Appeals Panel which is due to meet on 18^th December 2009. Every
effort will be made to respond to you with the outcome of the appeals
panel by 23^rd December 2009

Should you have any further enquiries concerning this matter in the
meantime, please write or telephone the Information Compliance Unit
quoting the reference number above.

Yours sincerely

Miss R Forrest

Deputy Information Compliance Manager

Information Compliance Unit

Information Management and Technology Department

West Mercia Police

PO Box 55

Hindlip

Worcester

WR3 8SP

01905 331545 / 331565

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Dear Mr Walker

FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI 2145. Appeal Response

I am writing to you as a consequence of your appeal against the refusal to
disclose information, under the terms of the Freedom of Information Act
2000, arising from your request for information dated 6^th October 2009.
You have asked for the following information:

1. Please tell me if West Mercia Police has processed any data relating to
the leaked British National Party membership list.

2. Please tell me which of the conditions in Schedule 2 and Schedule 3
were met when processing sensitive personal data?

3. Has the sensitive personal data been used for any purposes other than
comparing against the West Mercia Police personnel database?

4. Who was responsible for the decision to compare the sensitive personnel
data against West Mercia Police's personnel data?

5. What were the grounds for such a decision?

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

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

An internal appeals panel consisting of myself and my colleague Rachel
Wych, met today to consider your appeal under the terms of the Act. We
have given further consideration to your request and whether the
exemptions have been applied correctly in this instance.

We understand that other police forces have responded to your request for
information. It is our view that we are not bound by their decisions but
are required to consider your request independently as an individual
authority. We have also taken into account the reasons put forward by you
in your email of 7^th December 2009 as to why the authority should release
the information requested and your argument in respect of public interest.

As you know section 1 of the Freedom of Information Act 2000 confers a
duty on public authorities to confirm or deny that information is held and
a consequent duty to disclose information, unless any of a number of
specified exemptions apply. In the case of your original request, West
Mercia Police has sought to apply the following exemptions: -

S30(3) Investigations

S31(3) Law Enforcement

S40(5)(b)(i) Personal Information

In doing so it has neither confirmed nor denied that the information you
requested is held and applied a public interest test in support of that
decision.

We agree with the logic supporting the application of those exemptions and
the decision to neither confirm nor deny that it holds information, in
that police operations, intelligence gathering, support of witnesses and
others who would help the police and other current or future
investigations are likely to be compromised and undermined.

Our main considerations have been in respect of the public interest tests
supporting the application of the exemptions and your alternative views.
At point 4 in your email requesting a review you set out a number of
points listed a) to g) in respect of the public interest. We have
considered them carefully and our views are below.

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

So far as we can establish there does not appear to be 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. Such debate as
was proper seems now to have 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.

The Police Federation and other staff associations, together with UNISON,
the only recognised trade union for police staff, were involved in the
internal consultation discussions on the implementation of the most recent
changes to Police Regulations. On the occasions when information is
released under the Freedom of Information Act 2000 it is released as if to
the public at large and therefore cannot be treated as a private
transaction between the requester and the public authority.

As there is a legal bar to membership of this particular political party
in the police service, we are unable to understand how information
relating to investigations is relevant to any potential debate on changing
Police Regulations.

In our opinion the original public interest tests are not affected by your
submission.

Yours sincerely

Stephen Millington

Security & Risk Manager

The Information Commissioner

After lodging a complaint with WMP if you are still dissatisfied with the
decision you may make application to the Information Commissioner for a
decision on whether the request for information has been dealt with in
accordance with the requirements of the Act.

For information on how to make application to the Information Commissioner
please visit their website at www.informationcommissioner.gov.uk
Alternatively, phone or write to:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Phone: 01625 545700

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