I refer to Schedule 1 of The Data Protection Principles.

Mark Walker made this Freedom of Information request to Avon and Somerset Constabulary

The request was refused by Avon and Somerset Constabulary.

From: Mark Walker

3 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 Avon and Somerset Constabluary 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 Avon and Somerset Constabluary Police
personnel database?

4. Who was responsible for the decision to compare sensitive
personnel
data against Avon and Somerset Constabluary Police's personnel
data?

4. What were the grounds for such a decision?

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

6. 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

Link to this

From: Mark Walker

2 November 2009

Dear Sir or Madam,

You have not replied to my FOI request 'I refer to Schedule 1 of
The Data Protection Principles.' promptly, as required by law.

Yours faithfully,

Mark Walker

Link to this

From: #Freedom of Information Requests
Avon and Somerset Constabulary

3 November 2009

Corporate Information Management Department

Force Headquarters, PO Box 37, Valley Road,

Portishead, Bristol, BS20 8QJ

Facsimile 01275 814667

Private

Mr M Walker

[FOI #19343 email]

Our Reference 09/596
Your reference
Date 03.11.09

Dear Mr Walker

Thank you for your e-mail dated 2nd November 2009. Apologies for not
providing a response to date. Please be assured that your request is
currently being worked on, and I will provide you with a response as soon
as possible

Yours sincerely

Freedom of Information Officer

Freedom of Information Officer
Corporate Information Management Department

Link to this

From: #Freedom of Information Requests
Avon and Somerset Constabulary

10 November 2009

Attachment A S Appeals Procedure E Mail.doc
51K Download View as HTML

Avon and Somerset Constabulary

Corporate Information Management Department

Force Headquarters, PO Box 37, Valley Road,

Portishead, Bristol, BS20 8QJ

Facsimile 01275 814667

Private

Mark Walker
[FOI #19343 email]
Our Reference 09/596
Your reference
Date 10 November 2009

Dear Mr Walker

I write in connection with your request for information dated 3rd October
2009 concerning the membership list of the British National Party (BNP)
being published. Specifically you have asked the following:

1. Please tell me if the Avon and Somerset 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 Avon and Somerset Constabulary Police personnel
database?

4. Who was responsible for the decision to compare sensitive personnel
data against Avon and Somerset 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.

Please note that Section 1 of the Freedom of Information Act 2000 (FOIA)
places two duties on public authorities. Unless exemptions apply, the
first duty at Sec1(1)(a) is to confirm or deny whether the information
specified in a request is held. The second duty at Sec1(1)(b) is to
disclose information that has been confirmed as being held. Where
exemptions are relied upon S17 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) states (if that would not otherwise be
apparent) why the exemption applies.

The Avon and Somerset Constabulary can neither confirm nor deny that it
holds any 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;

Section 31(3) Law enforcement;

S40 (5) (b)(i) Personal Information.

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

The Avon and Somerset 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.

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 would like to take this opportunity to apologise for the delay in
providing you with a response and to thank you for your interest in Avon
and Somerset Constabulary.

Yours sincerely

Freedom of Information Officer

Freedom of Information Officer
Corporate Information Management Department

Please note:

1. Requests and responses may be published on Avon and Somerset
Constabulary’s website (within 24 hours), some of which may
contain a link to additional information, which may provide
you with further clarification.
2. Whilst we may verbally discuss your request with you in order
to seek clarification, all other communication should be made
in writing.
3. Avon and Somerset Constabulary provides you with the right to
request a re-examination of your case under its review
procedure (copy attached).

<<A&S Appeals Procedure - E-Mail.doc>>

Link to this

From: Mark Walker

7 December 2009

Dear Sir or Madam,

Thank you for your response of 10th 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/i_...

Link to this

From: #Freedom of Information Requests
Avon and Somerset Constabulary

8 December 2009

Dear Mr Walker

In response to your e-mail below, your appeal will be passed to the
Appeal Panel and dealt with in due course.

Kind regards

Freedom of Information Team
Avon and Somerset

show quoted sections

Link to this

From: Barbara Peters
Avon and Somerset Constabulary

21 December 2009

Mr Ian Marsh

Corporate Information Management Department

PO Box 37, Valley Road, Portishead, Bristol BS20 8QJ

Telephone 01275 816309 Facsimile 01275 814565

Office Hours: 8 am - 4 pm

Our Ref: NDH/IM/BP Your Ref:
21 December 2009

Mr Mark Walker

Solidarity Trade Union

[1][email address]

Dear Mr Walker

Freedom of Information Act Request - 09/596

Thank you for your e-mail dated 7 December 2009 concerning your wish for
an internal review of the response to your Freedom of Information Act
request, in respect of the membership list of the British National Party.

I fully agree that the Freedom of Information Act has the basic
presumption to favour disclosure, however, it does allow that stance to be
tempered with the need to maintain the integrity of the service
provision. To adversely impact on our service delivery would not be in
the greater public interest and it is in that context that the original
response was framed. I therefore uphold the original decision.

In addition to the explanation provided to you in the original response my
additional rationale for reaching this decision is as follows.

Whilst I note your comments, I unfortunately cannot see a way of
disclosing information to you in this matter without engaging the
exemptions applied to your request. For example to disclose who made a
decision or the details of the rationale behind a decision to use or not
to use the list as a part of an investigation would either confirm the
existence of such an investigation (past, current or future) and/or would
detail the decision making process or tactics engaged around a police
investigative process. The only questions that were able to be positively
addressed, were done in the original response and these concerned the more
generalised questions of what Data Protection Act Principles and Schedules
may apply in such a scenario.

I am grateful for the additional public interest arguments advanced in
your e-mail and I recognise that clearly you do have an interest in this
matter. However it is my belief that protecting a core element of
policing ie the investigative process is very much in the public interest
to maintain and that this outweighs any potential benefit of disclosure in
this particular instance. It is already a matter of public record that
membership of the BNP is not permitted for police officers and staff and
so there is no new or additional information available from the Police
Service that interested parties cannot already identify from various
national sources eg Hansard and the Local Government Employers (LGE)
website.

Therefore the most relevant information that could assist in any debate
about restrictions placed on certain types of employment or on how that
affects individuals is already available in the public domain.

The approach to this particular topic is consistent with the Force
position on this question throughout and as such the Constabulary have not
at any stage provided any media statements concerning what actions, if
any, were specifically intended to be undertaken within the Constabulary.

I appreciate that this will not be the response that you would have wished
to receive on this occasion, but I hope that the content of the original
response coupled with this letter will provide sufficient explanation of
the Constabulary's position on this matter.

If you still believe that the Constabulary has failed to meet its
obligations under the Freedom of Information Act then you are entitled to
raise the matter with the Information Commissioner's Office who may agree
to investigate the matter on your behalf.

Yours sincerely
Ian Marsh
Information Manager (Compliance)
E-mail address: [email address]

References

Visible links
1. mailto:[email address]

Link to this

Things to do with this request

Anyone:
Avon and Somerset Constabulary only: