BNP membership list.

Mark Walker made this Freedom of Information request to Essex Police

The request was refused by Essex Police.

From: Mark Walker

5 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 the Essex 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 Essex Police personnel database?

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

Soldarity Trade Union

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From: FOI
Essex Police

6 October 2009

Classification: NOT PROTECTIVELY MARKED

Thank you for your enquiry which has been logged under the above reference.

Under the Freedom of Information Act we are required to reply within 20 working days but given the current very high number of requests being received this may not be possible.

We will reply as soon as possible and please accept our apologies for the inconvenience any delay may cause.

Steve Grayton
Information Officer
Data Protection & Freedom of Information
Information Management
Corporate Development Department
Essex Police Headquarters
PO Box 2, Springfield, Chelmsford, CM2 6DA
Tel: 0300 333 4444 Ext 54551
Fax: 01245 452256
Email : [email address]
For FOI requests : [Essex Police request email]
For Data Protection: [email address]
Website: www.essex.police.uk
Hours of work : Mon - Thurs 7:30 to 15:30
Fri 7:30 to 15:00

-----Original Message-----
From: Mark Walker [mailto:[FOI #19442 email]]
Sent: 05 October 2009 10:22
To: FOI
Subject: Freedom of Information request - BNP membership list.

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 the Essex 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 Essex Police personnel database?

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

Soldarity Trade Union

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From: Steve Grayton
Essex Police

20 October 2009

Classification: NOT PROTECTIVELY MARKED

Thank you for your enquiry which has been logged under the above
reference. Having completed my enquiries I am able to respond as follows:

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 Essex 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 Essex Police personnel database?

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

Essex 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.

Steve Grayton
Information Officer
Data Protection & Freedom of Information
Information Management
Corporate Development Department
Essex Police Headquarters
PO Box 2, Springfield, Chelmsford, CM2 6DA
Tel: 0300 333 4444 Ext 54551
Fax: 01245 452256
Email : [1][email address]
For FOI requests : [2][Essex Police request email]
For Data Protection: [3][email address]
Website: [4]www.essex.police.uk
Hours of work : Mon - Thurs 7:30 to 15:30
Fri 7:30 to 15:00
If you are dissatisfied with the handling of your request, you have the
right to ask for an internal review. Internal review requests should be
submitted within two months of the date of receipt of the response to your
original request and should be addressed to Information Management at the
above address.

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

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From: Mark Walker

7 December 2009

Dear Sir of Madam,

Thank you for your response of 20th October 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: Darren Thomas
Essex Police

15 January 2010

Classification: NOT PROTECTIVELY MARKED

Dear Mr Walker,
As requested in your e-mail dated 7th December 2009 and as recommended
under section 45 (Code of Practice) of the Freedom of Information Act
2000, I have now had the opportunity to review the response you received
to your request for information which was logged under our reference 2417.

The Essex Police response to your original request (our e-mail dated 14th
October 2009) provided a refusal notice explaining that it could neither
confirm nor deny that it held information relevant to your request on the
basis that the exemptions given at sections 30(3) and 31(3) applied.

The initial response provided you with a comprehensive public interest
test and explanation as to the rationale behind the application of the
neither confirm nor deny stance and the exemptions applied. I do not see
how we can elaborate on this any further and the public interest arguments
you have put forward for disclosure do not make a strong enough case to
suggest that the original decision be overturned.

We are unaware of any ongoing national public debate that the government
should change the law allowing police membership of the BNP. As you know,
the Police Regulations 2003 provide for a bar against police personnel
membership of political parties like the BNP. The Regulations were subject
to debate in open parliament - a debate which has since been closed but is
a matter of public record (Hansard and various media reports at the time
can provide further information).

Staff associations including the Police Federation and police staff union,
Unison, were engaged in internal consultation discussions with regard to
the implementation of the most recent changes to the Regulations.

Given the above it is hard to see how the provision of information - if it
were held - in relation to your request would change or even be relevant
to any debate regarding the changing of Police Regulations.

What was not communicated to you in our initial response, for which I
apologise, was the fact that the exemption at section 40 (5) relating to
third party personal data would also apply to this request. To clarify the
use of this exemption, the list that was leaked is reported to have
contained names, addresses, telephone numbers of members - and prospective
members - of the BNP. According to press reports (an example of which is
given below) the list also contained occupations and e-mail addresses of
individuals.

[1]http://www.guardian.co.uk/politics/2008/...

Confirmation of information held or release of information held under FOIA
in relation to this request could lead to the positive identification of
an individual or individuals being suspected of being employed by the
force. A name alone is not necessarily personal data; however combined
with the other personal identifiers given in the list or other information
which may be held by the respective police force, it becomes personal data
and therefore captured by the provisions of the Data Protection Act 1998.

If, having received this response, you are dissatisfied with the outcome
of the review, you do have the right to bring this matter to the attention
of the Information Commissioner's Office (ICO). I have provided the
contact details of the ICO should you wish to take this course of action:

The Information Commissioner's Office,
Wycliffe House,
Water Lane, Wilmslow,
Cheshire, SK9 5AF.
As communicated to you previously, this response should not be taken as
confirmation that Essex Police holds information relevant to this
request.

Regards

Darren Thomas
Senior Information Officer
Data Protection & Freedom of Information
Information Management
Corporate Development Department
Essex Police Headquarters
External Tel: 01245 452406
Internal Ext: 51824
E-mail: [email address]
Hours of work: between 8-5 Mon-Fri
Fax: 01245 452256

Non Emergency Telephone Number: 0300 333 4444
Website: [2]www.essex.police.uk

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References

Visible links
1. http://www.guardian.co.uk/politics/2008/...
2. file://www.essex.police.uk

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