BNP membership list.

Dear Mr Walker

FREEDOM OF INFORMATION ACT REQUEST NO 763/2009-2720

I write in connection with your request for information which was received
by this office on October 5, 2009. I understand you are requesting the
following information:

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 the Devon and Cornwal Constabulary 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 Devon and Cornwal Constabulary Police personnel
database?

4. Who was responsible for the decision to compare sensitive personnel
data against Devon and Cornwal Constabulary 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 will be considered in accordance with the Freedom of
Information Act 2000. You should expect to be sent a response within the
statutory limit of 20 working days, subject to the provisions of the Act.

Should you have any further inquiries concerning this matter, please
contact me quoting my reference number as above.

Yours sincerely

Sent on behalf of

Steve Hawkins (56221)
Freedom of Information Assistant Officer
Tel 01392 452204 (22204)
[email address]
Freedom of Information Dept
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Dear Mr Walker

I write in connection with your email dated October 5, 2009, which was
received by this office on October 5, 2009 requesting the following
information:

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 the Devon and Cornwal Constabulary 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 Devon and Cornwal Constabulary Police personnel
database?

4. Who was responsible for the decision to compare sensitive personnel
data against Devon and Cornwal Constabulary 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.

The Devon and Cornwall Constabulary 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.

Therefore under section 17(4) of the Freedom of Information act this
letter acts as a Refusal Notice.

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.

I regret that I am unable to meet your request but should you have any
further information needs in the future then please contact me.

Complaint Rights
If you are not satisfied with the service you have received in relation to
your request and wish to make a complaint or request a review of our
decision you should write to the Head of Information Management,
Information Management Department, Devon & Cornwall Constabulary,
Middlemoor, Exeter, EX2 7HQ, Devon.

If you are not satisfied with the outcome of your Force complaint or
review, you may apply directly to the Information Commissioner at
Commissioner's Officer, Wycliffe House, Water Lane, Wilmslow, Cheshire,
SK9 5AF, telephone 01625 545700.

Yours sincerely

Steve Hawkins (56221)
Freedom of Information Assistant Officer
Tel 01392 452204 (22204)
[email address]
Freedom of Information Dept
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Dear Mr Walker

I refer to your email dated 7th December 2009 requesting that Devon and
Cornwall Constabulary review its response to the provision of
information, under the Freedom of Information Act 2000, relating to your
request for any processing of data leaked from the British National Party.

I can advise you that, following the consideration of the request by an
independent reviewer, it has been found that the original notification by
the Freedom of Information Unit was correct. Therefore no disclosure will
be made by the Constabulary and this notification should be considered a
Refusal Notice under section 17(4) of the Act for this information.

The Constabulary has already provided its views at the processing
conditions under the Data Protection Act 1998, which would have allowed it
to process the information do exist. This stance is supported by the fact
that the Constabulary does have a Lawful Business Monitoring Policy that
indicates to all staff, and the public, that it will exercise its right
monition compliance to its expectation of high standards of conduct and
ethics from its staff.

The response to the remainder of your request was to Neither Confirm Nor
Deny the information was held. The internal review has concluded that to
release any details of the processes that may be used into investigations
of criminal or disciplinary offences into the public domain, is not in the
public interest in that it can allow other persons to act in a manner to
curcumvent the focus and objectives of such investigations. Thus Section
30 and 31 exemptions are considered valid.

Additionally to place information as whether or not the Constabulary would
cross check any leaked data set against it own personal data base to
identify wrong doing int the public domain, would allow the individual and
potential offenders to modify their behaviour, e.g use false names, to
avoid detection. This is certainly not in the interest of the public, or
the police service. Therefore the application of the section 17(4) Neither
Confirm Nor Deny response is also considered valid.

In respect of the specific points that you made re the applications of
public interests tests;

(a) Assisting public understanding of an issue that is subject to
current national debate
D&CC are unaware of any ongoing national debate that the
government should change the law, therefore we do not see this as an
issue for public disclosure. There is a legal bar to membership of
a political party not permitted in the police service. We fail to see
how information relating to investigations will change or even be
relevant to any debate regarding changing of Police Regulations.
(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. The debate has already 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 were engaged in service wide consultation
discussions with regard the implementation of the most recent changes
to Police Regulations. The Constabulary can therefore see little point in
this subject being re-examined by the Solidarity Trade Union. Unison,
Unite and GMB are the only recognised trade unions for police staff.

In line with the decision made relating to your appeal, I must advise you
that under Section 50 of the Freedom of Information Act 2000, you have the
right to appeal to the Information Commissioner to review the application
and the Constabulary's response. The address of the Information
Commissioner is:

The Office of the Information Commissioner
Wycliffe House, Water Lane,
Wilmslow
Cheshire SK9 5AF;
Tel: 01625 545745
Fax: 01625 524510
e.mail: [email address]

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