BNP membership list.

Mark Walker made this Freedom of Information request to Dyfed Powys Police

The request was refused by Dyfed Powys Police.

From: Mark Walker

6 October 2009

Dear Sir or Madam,

Please provide the following information under the Freedom of
Information Act 2000.

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 Dyfed Powys 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 sensitive personal data been used for any purposes other
than
comparing against the Dyfed Powys Police personnel database?

4. Who was responsible for the decision to compare sensitive
personnel
data against Dyfed Powys 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.

Yours faithfully,

Mark Walker

Solidarity Trade Union

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From: FOI
Dyfed Powys Police

7 October 2009

Attachment Appeal Process.080709.pdf
68K Download View as HTML

Dear Mr Walker,

Reference No: 676/2009

Thank you for your request for information dated 6 October 2009 and
received by the Freedom of Information Unit on 7 October 2009, concerning
the BNP membership list. This request will be dealt with under the terms
of the Freedom of Information Act 2000.

Your request will now be considered and we aim to provide a response
within the statutory timescale of 20 working days i.e. 4 November 2009 as
defined by the Act, subject to the information not being exempt or
containing a reference to a third party. In some circumstances Dyfed-Powys
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 choose not to make a 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 find at any stage that you no longer require the information
requested, it would be appreciated if you could notify us that you wish to
withdraw your request.

I should like to take this opportunity to thank you for your interest in
Dyfed-Powys Police.

Yours sincerely

Cath Butler

Mrs Cath Butler

Swyddog Gweinyddol/Administrative Officer

Uned Rhyddid Gwybodaeth/Freedom of Information Unit

Pencadlys yr Heddlu/Police Headquarters

Caerfyrddin/Carmarthen

Ffon/Tel: 0845 330 2000 est/ext: 23586

Llinell Uniongyrchol/Direct Line: 01267 226596

[1][Dyfed Powys Police request email]

Dyfed Powys Police provides you the right to request a re-examination of your
case under its review procedure. If you decide to request such a review and
having followed the Constabulary's full process you are still dissatisfied, then
you have the right to direct your comments to the Information Commissioner who
will give it consideration.

References

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From: FOI
Dyfed Powys Police

3 November 2009

Attachment PDF Final Response 676.2009.pdf
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Attachment English Appeal Process.pdf
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Dear Mr Walker

Reference 676/2009

I write in connection with your request for information dated the 6^th
October 2009 and received in the Freedom of Information Unit on the 7^th
October 2009 regarding the BNP membership list.

Your request has been now considered. Please see the attached response
document which indicates what information is held by the force and the
exemptions applied concerning the non release of the information in whole
or in part.

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 relied 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) State (if that would not otherwise be apparent) why the exemption
applies.

The Dyfed-Powys 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:

Section 30(3) Investigations and Proceedings conducted by a Public

Authority

Section 31(3) Law Enforcement

Section 40(5)(b)(i) Personal Information

This should not be taken as conclusive evidence that any information that
would meet your requests exists or does not exist.

Dyfed Powys Police can neither confirm nor deny that 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 Dyfed Powys Police
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 Dyfed Powys Police 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.

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 Dyfed Powys Police have taken such action at this
time.

In accordance with the Act, this letter represents a Refusal Notice for
this particular request. This response should not be taken as an inference
that Dyfed Powys Police does, or does not hold any further information in
relation to your request.

I would like to this opportunity to thank you for your interest in
Dyfed-Powys Police.

Yours sincerely

Nicola Harris

Nicola Harris

Swyddog Rhyddid Gwybodaeth - Freedom of Information Officer

Uned Rhyddid Gwybodaeth - Freedom of Information Unit

Pencadlys Heddlu - Dyfed-Powys Police Headquarters

Caerfyrddin - Carmarthen

Ffon/Tel: 0845 330 2000 est/ext 23440

Uniongyrchol/Direct Line : 01267 226596

e-bost/e-mail - [Dyfed Powys Police request email]

Dyfed Powys Police provides you the right to request a re-examination of your
case under its review procedure (copy enclosed). If you decide to request such a
review and having followed the Constabulary's full process you are still
dissatisfied, then you have the right to direct your comments to the Information
Commissioner who will give it consideration.

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From: Mark Walker

7 December 2009

Dear Sir or Madam,

Thank you for your response of 3rd November 2009. I would like to
request an internal review of the decision not to disclose
information.

As you will be aware there is a general right of access to
information held by public authorities. In OGC v Information
Commissioner [2008] EA/2006/0040, 5.3.07 (at para 71) the High
Court approved the following statement:-

“[T]here is an assumption built into FOIA that the disclosure of
information by public authorities on request is in itself of value
and in the public interest, in order to promote transparency and
accountability in relation to the activities of public
authorities.”

You have claimed exemptions which are subject to a public interest
test. This requires you to take into account the public interest in
deciding whether to release information even when an exemption
applies. In short, our understanding is that the public interest
may override the exemption.

It is our belief that there is a presumption in favour of
disclosure in the Act created by the reverse emphasis in section 2.
We argue that where the balance is even, the public interest in a
particular disclosure should prevail.

We wish the review to consider the following points:-

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 before
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.

4. You have failed to fully consider the public interest in
disclosure. Specifically we would like the Review to consider the
public interest in:-

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

Our Union argues that the substance of the information we have
requested relates to a matter of serious and legitimate public
concern and its disclosure will inform public debate. The public
interest in disclosing the information outweighs any public
interest in not disclosing it.

Yours sincerely

Mark Walker
Solidarity Trade Union
www.solidaritytradeunion.org

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/bn...

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From: FOI
Dyfed Powys Police

10 December 2009

Dear Mr Walker

Reference No: 676/2009

I acknowledge receipt of your e-mail dated the 7 December 2009 and
received on the 8 December 2009 requesting that Dyfed Powys Police review
its response to your request for information concerning the BNP membership
list.

My understanding is that the issues you have raised are as outlined within
your e-mail of the 7 December, in that the information you requested
should have been provided to you and that there is no harm to the public
interest.

The review will be conducted in accordance to Dyfed Powys Police' review
procedure and every effort will be made to have a response to you by the 8
January 2010, however if it becomes clear that the review will not be
completed by this date you will be contacted.

If you wish to discuss this matter prior to Dyfed Powys Police' response,
please do not hesitate to contact this office.

Yours sincerely

Cath Butler

Mrs Cath Butler

Swyddog Gweinyddol/Administrative Officer

Uned Rhyddid Gwybodaeth/Freedom of Information Unit

Pencadlys yr Heddlu/Police Headquarters

Caerfyrddin/Carmarthen

Ffon/Tel: 0845 330 2000 est/ext: 23453

Llinell Uniongyrchol/Direct Line: 01267 226596

[1][Dyfed Powys Police request email]

References

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1. mailto:[Dyfed Powys Police request email]

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From: FOI
Dyfed Powys Police

7 January 2010

Attachment Appeal Process.080709.pdf
68K Download View as HTML

Attachment Result of Appeal Panel.pdf
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Dear Mr Walker,

Please find attached the decision of the Appeals Panel in relation to your
FOI request concerning the BNP membership list.

Yours sincerely,

Cath Butler

Mrs Cath Butler

Swyddog Gweinyddol/Administrative Officer

Uned Rhyddid Gwybodaeth/Freedom of Information Unit

Pencadlys yr Heddlu/Police Headquarters

Caerfyrddin/Carmarthen

Ffon/Tel: 0845 330 2000 est/ext: 23453

Llinell Uniongyrchol/Direct Line: 01267 226596

[1][Dyfed Powys Police request email]

References

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