BNP membership list.

Dear Mr Walker

FREEDOM OF INFORMATION ACT 2000

Thank you for your request for information, received 6 October
2009 concerning the BNP membership list.

Your request is being considered and you will receive a response within
the statutory timescale of 20 working days, as defined by the Act, subject
to the application of any statutory exemptions. Where consideration is
being given to the application of any exemptions the 20 working day
timescale may be extended under the terms of the Act to a period
considered reasonable depending on the nature and circumstances of your
request. In such cases you will be notified and, where possible, a revised
time-scale will be indicated. In all cases we shall attempt to deal with
your request at the earliest opportunity.

There may be a fee payable for the retrieval, collation and provision of
the information requested, where the request exceeds the statutory limit.
In such cases you will be informed in writing and the 20 working day
timescale will be suspended until we receive payment from you or your
request is modified and /or reduced. If you chose not to make full payment
or modify your request then the request will remain unanswered.

Your request may require either full or partial transfer to another public
authority. You will be informed if your request is transferred.

Yours sincerely,

Freedom of Information Unit

Dear Mr Walker

FREEDOM OF INFORMATION ACT 2000

Your request for information, received 06 October 2009, has now been
considered. This response is our response under the terms of the Freedom
of Information (FOI) Act only. The FOI Act places a number of legal
constraints upon us and therefore this letter answers only those
obligations.

Before I explain the decisions I have made in relation to your request, I
thought that it would be helpful to outline the parameters set out by the
Freedom of Information Act 2000 (the Act) within which a request for
information can be answered.

The Freedom of Information Act 2000 creates a statutory right of access to
information held by public authorities. A public authority in receipt of a
request must, if permitted, state under Section 1(a) of the Act, whether
it holds the requested information and, if held, then communicate that
information to the applicant under Section 1(b) of the Act.

The right of access to information is not without exception and is subject
to a number of exemptions which are designed to enable public authorities
to withhold information that is unsuitable for release. Importantly the
Act is designed to place information into the public domain, that is, once
access to information is granted to one person under the Act, it is then
considered public information and must be communicated to any individual
should a request be received.

DECISION UNDER THE TERMS OF THE FREEDOM OF INFORMATION ACT

West Midlands Police will neither confirm nor deny that we hold any of the
requested information. This letter serves as a Refusal Notice under
Section 17 of the Freedom of Information Act 2000 (the Act).

REASONS FOR DECISION

Section 17 of the Freedom of Information Act 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 relied upon section 17 of
the Act 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.

In accordance with the Act, this letter represents a Refusal Notice for
this particular request. West Midlands Police will neither confirm nor
deny the existence of any relevant data by virtue of the following
exemptions

Section 30 (3)

Section 31 (3)

These exemptions and explanatory notes are shown here:

http://www.west-midlands.police.uk/foi/p...

West Midlands 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 qualified, 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 West Midlands Police have taken such action at
this time.

Your attention is drawn to your right to request a re-examination of your
case under West Midlands Police review procedure (attached). Please note
that such an appeal must be received within six months of the date of this
correspondence.

I am sorry that we cannot be of further help at this time.

Yours sincerely,

Freedom of Information Unit

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Dear Mr Walker

FREEDOM OF INFORMATION ACT 2000 REQUEST REFERENCE No: 2899/09

I acknowledge receipt of your email, received 7 December, requesting West
Midlands Police to review its response to your request for information
concerning the BNP membership list.

The review will be conducted in accordance with the West Midlands Police
review procedure and every effort will be made to have a response to you
by 8 January 2010. However, if it becomes clear that the review will not
be completed by this date you will be advised.

If you wish to discuss this matter prior to West Midlands Police*s
response, please contact me,

Yours sincerely,

S J Mountford

FOI Unit Manager

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Dear Mr Walker

FREEDOM OF INFORMATION ACT 2000 REQUEST REFERENCE No: 2899/09

Thank you for your email received 7 December where you requested West
Midlands Police to review its response to your request for information
concerning BNP membership.

A review has been conducted and the original decision is upheld. I will
respond separately to each of the issues you raise:

1. The public would assume that the Police forces had obtained and
reviewed a copy of the leaked BNP list as there is a policy banning BNP
members from serving in the force and the list was leaked onto the
Internet (via Wikileaks). Several forces have publicly disciplined workers
on the basis that they were on this list. At the time Spokespersons for
Forces were happy to tell the Press that they were "scouring" the list for
people to discipline. Several forces have also confirmed that they hold
the list for this purpose and others in response to FOI requests. We argue
that claiming exemptions on the grounds you do is therefore misconceived.

2. The only criminal charge we are aware of relates to Matt Single, the
person convicted under Data Protection law for leaking it. No other
criminal matter relating to the list has been brought befor the courts. It
is difficult to understand what kind of criminal investigations might be
prejudiced by answering our request, therefore.

3. We argue that it would be possible for you to disclose information in
response to our request that does not relate to the areas covered by the
exemptions. A blanket refusal is not a proportionate response.

West Midlands Police maintains the position already articulated in our
response to your original request. The rationale from that response is
reproduced below.

West Midlands 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.

4(a) Assisting public understanding of an issue that is subject to

current national debate

We are not aware of any current national debate regarding these issues. As
far as we are aware, there are no plans by the Government to change the
law to allow police officers and staff to become members of the BNP.

4(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.

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. That debate has
already been concluded and the requested information would not contribute
anything more.

4(c) Allowing individuals affected adversely in Employment information
which they can refer to in order to challenge discrimination on political
grounds.

4(d) Allowing analysis and scrutiny of the effect and implications of a
major policy decision with Human Rights implications

4(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.

4(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.

4(g) Providing information which makes individuals and institutions

accountable for decisions.

The Police Federation and other staff associations were engaged in
internal consultation discussions with regard to the implementation of the
most recent changes to Police Regulations. Unison and Unite are the only
recognised trade unions for police staff.

Moreover, there is a legal bar to membership of a political party within
the police service. Information relating to investigations will not change
or be relevant to any debate regarding changing of Police Regulations.

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at: Information
Commissioner*s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF

Yours sincerely,

S J Mountford

FOI Unit Manager

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