BNP membership list.

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Our Ref: FOI 478-09

E-mail: [Tayside Police request email] for all correspondence
relating to FOI requests

I write to acknowledge receipt of your request for information under the
Freedom of Information (Scotland) Act 2002, received today.

Your request is now currently being processed by this department and
under the terms of this Act, there are 20 working days allowed to
respond to you following the date of receipt of your request. Please
note, however, that there may be a fee payable for the retrieval,
collation and provision of the information requested. You will be
advised of this should a payment be required and no information will be
supplied prior to receipt of the fee.

If you require any further information or assistance, please do not
hesitate to contact myself on 01382 596644.

Norma Brady
Freedom of Information Officer
Force Information & Intelligence Division Tayside Police
Tel: 01382 596644
Fax: 01382 596048
Email: [Tayside Police request email]

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Our Ref: FOI 478-09

E-Mail: [Tayside Police request email] for all correspondence
relating to FOI requests

Dear Mr Walker,

I refer to your request of 6 October 2009 for information under the
Freedom of Information (Scotland) Act 2002 which, for the avoidance of
doubt, I reproduce below.

Q1 Please tell me if Tayside Police has processed any data
relating to the leaked British National Party membership list?

Q2 Please tell me which of the conditions in Schedule 2 and
Schedule 3 were met when processing sensitive personal data?

Q3 Has sensitive personal data been used for any purposes other
than comparing against the Tayside Police personnel database.

Q4 Who was responsible for the decision to compare sensitive
personnel data against Tayside Police's personnel data?

Q5 What were the grounds for such a decision?

Q6 I request the minutes of any meeting held to come to such a
decision.

Q7 Please describe the process used in making such a decision
and whether the consequences of this decision, if any, were assessed.

Having considered your request in terms of the Freedom of Information
(Scotland) Act 2002, I would advise you that, in accordance with Section
18 of the Act, Tayside Police can neither confirm nor deny that it holds
the information you have requested by virtue of the following exemptions:

Section 34(1)(a)&(b) - Investigations

Section 35(1)(a)&(b) - Law Enforcement

The Freedom of Information (Scotland) Act 2002 makes it a legal
requirement that an authority has to not only provide information (unless
it is exempt), but to also confirm whether or not that information is
held, unless to do so would, in itself, provide exempt information.

Whilst there is a public interest in keeping the public informed with
regard to such matters, there is no parallel interest in confirming or
denying that information is held when to do so could compromise an
investigation or hinder the prevention or detection of crime.

However, this explanation should not be taken as indicative or conclusive
evidence that the information you have requested exists or does not exist.

To be of assistance, I would advise you that the Police Service would be
legally entitled to process this sensitive personal data, under Schedule 2
Condition 5 and Schedule 3 condition 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. I would
remind you however, that this clarification should not be regarded as any
indication whether the information requested is or is not held by Tayside
Police.

I trust the enclosed information will be of assistance to you. However,
if you are not satisfied with the way in which your request has been dealt
with, you are entitled, in the first instance, to request a review of the
decision made by the Force. Should you wish to request such a review,
please write to me within 40 days of receiving this communication. I will
arrange for a senior officer, who has not been involved in my decision
making process, to conduct a review as required by the Act. If, after
having been informed of the review panel's decision, you are still not
satisfied, you are then entitled to apply to the Scottish Information
Commissioner for a decision. The contact details for Mr Dunion, the
Scottish Information Commissioner are Office of the Scottish Information
Commissioner, Kinburn Castle, Doubledykes Road, St Andrews, Fife, KY16
9DS, telephone 01334 464610.

Norma Brady
Freedom of Information Officer
Force Information & Intelligence Division
Tayside Police
Tel: 01382 596644
Fax: 01382 596048
Email: [Tayside Police request email]

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Our Ref: FOI 478-09
E-Mail: [Tayside Police request email] for all correspondence
relating to FOI.

Dear Mr. Walker,

I acknowledge receipt of your request, received 7 December, 2009, for a
review of our response in relation to your original request.
I write to advise you that I have arranged for a senior officer to
conduct this review. Under the terms of the Freedom of Information
(Scotland) Act 2002, Tayside Police has 20 working days to provide you
with a reply.

Regards,

Norma Brady
Freedom of Information Officer
Professional Standards
Tayside Police
Tel: 01382 596644
Fax: 01382 596048
Email: [Tayside Police request email]

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Dear Mr. Walker

FREEDOM OF INFORMATION (SCOTLAND) ACT 2002

REQUEST FOR REVIEW Ref. FOI 478-09

I refer to the above subject and your email dated 7 December 2009 in
which you have sought a review of a decision communicated to you by Ms
Brady on 3 November 2009, in respect of action taken by Tayside Police
in connection with a list published on the internet of the British
National Party membership. For the avoidance of any doubt I am advised
that the details of questions in the request for information submitted
was as follows:

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 Tayside 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 Tayside Police personnel database?

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

Your request for a review of the decision highlights your disappointment
in the response received and you intimate that the result of the public
interest test carried out by Ms Brady should override the exemptions
applied.

You also provide four additional points for consideration in the public
interest test.

These are replicated below:

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.

Having being appointed as the reviewer I can advise that my role in the
process is to consider the request and the decision communicated, and to
thereafter review the whole process. I am required to either uphold or
amend the decision depending on my conclusions and in doing so I am also
required to consider the quality of the administrative process applied
to your request.

In the first instance I will deal with the administrative process and I
am happy to report that the response sent to you was due on 3 November
2009 and was therefore within the 20 working day period set.

In regard to your request I must point out that this was submitted to
the Force and is processed under the terms of the Freedom of Information
(Scotland) Act 2002, therefore the review will be specific to the same
process and will not take in to account other methods of obtaining
information or additional requests.

Accordingly in regard to your points 1 and 2, I cannot comment on what
information other forces have released to the press or in regard to
criminal investigations being carried out elsewhere.

In regard to point 3, as part of my review I will ensure that if any
information can be released out with the initial response I will do so,
however this does not confirm at this point whether any information is
held or not held by Tayside Police.

My response in regard to your point 4 is that this is additional
information and can be considered as opinion however I will ensure that
my review of the public interest test carried out originally was fair
and balanced.

It is also very important when carrying out a Public Interest Test that
the context is in regard to whether there is greater interest in
informing the public of a particular subject and not because it might be
interesting.

Therefore my approach in reviewing this request was to discuss things
further with the relevant departments and staff who have been involved
in the request and to apply the same methodology in determining if the
information is subject to exemptions and if so to conclude if the
information is held and if so if it may be released to you.

My findings are as follows:

The category of information requested meets the criteria under section
18 of the Act which states:

Where, if information existed and was held by a Scottish public
authority, the authority could give a refusal notice under section 16(1)
on the basis that the information was exempt information by virtue of
any of sections 28 to 35, 39(1) or 41 but the authority considers that
to reveal whether the information exists or is so held would be contrary
to the public interest, it may (whether or not the information does
exist and is held by it) give the applicant a refusal notice by virtue
of this section.

Section 34 (1) (a)&(b) Investigations by Scottish Public Authorities and
proceedings arising out of such investigations.

Section 35 (1) (a)&(b) Law Enforcement, the prevention or detection of
crime, the apprehension or prosecution of offenders.

In general it is very important that ongoing investigations are not
compromised or the details of specific operations made ineffective by
the release of information. It is also important that the safety of the
public is not put at risk due to the inappropriate release of
information. This does not confirm whether any information is held or
not held.

I can confirm that the public interest test carried out originally and
an additional test carried out as part of the review finds the potential
harm to Police operations or investigations outweighs the public
interest in confirming or denying whether the information requested is
held.

In reviewing the response provided to you by Ms Brady I have studied all
relevant documentation and processes and can advise you that I am
satisfied that Section 18 has been applied entirely appropriately.

I therefore conclude the review and uphold Ms Brady's decision to
neither confirm nor deny the information you requested is held by
Tayside Police.

I trust you will find this information of assistance to you. However,
should you remain dissatisfied with my decision regarding the review of
this case, then you are entitled to appeal to the Scottish Information
Commissioner for a decision. His contact details are Mr Kevin Dunion,
Scottish Information Commissioner, Kilburn Castle, Doubledykes Road, St
Andrews, Fife FK16 9DS, telephone 01334 464610.

Ron Stephen
Information Governance Officer
Force Information & Intelligence Division
Tel 01382 596130
[mobile number]

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