Confirmation or Denial of any investigation into misconduct in public office in relation to decisions made initiating the 2003 invasion of iraq

christopher lamb made this Freedom of Information request to Metropolitan Police Service (MPS)

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Gwrthodwyd y cais gan Metropolitan Police Service (MPS).

Dear Metropolitan Police Service (MPS),

Under the terms of the Freedom of Information Act 2000, I request confirmation or denial of any current or intended police investigation into the alleged common law offence of 'misconduct in public office' in relation to any aspect of government decision making leading to the 2003 invasion of Iraq. I seek to identify no government minister or Whitehall official as individual subjects of this request.

Yours faithfully,

christopher lamb

Metropolitan Police Service (MPS)

Dear Mr Lamb

Freedom of Information Request Reference No: 2017050000017

I write in connection with your request for information which was received
by the Metropolitan Police Service (MPS) on 28/04/2017.  I note you seek
access to the following information:

"Under the terms of the Freedom of Information Act 2000, I request
confirmation or denial of any current or intended police investigation
into the alleged common law offence of 'misconduct in public office' in
relation to any aspect of government decision making leading to the 2003
invasion of Iraq. I seek to identify no government minister or Whitehall
official as individual subjects of this request"

Your request will now be considered in accordance with the Freedom of
Information Act 2000 (the Act).  You will receive a response within the
statutory timescale of 20 working days as defined by the Act.  

If you have any further enquiries concerning this matter, please contact
us at [email address] or on the phone at 0207 161 3500, quoting the
reference number above. Should your enquiry relate to the logging or
allocations process we will be able to assist you directly and where your
enquiry relates to other matters (such as the status of the request) we
will be able to pass on a message and/or advise you of the relevant
contact details.

Yours sincerely

R. Loizou
Support Officer - Freedom of Information Triage Team
 
COMPLAINT RIGHTS

Are you unhappy with how your request has been handled or do you think the
decision is incorrect?

You have the right to require the Metropolitan Police Service (MPS) to
review their decision.

Prior to lodging a formal complaint you are welcome to discuss the
response with the case officer who dealt with your request.  

Complaint

If you are dissatisfied with the handling procedures or the decision of
the MPS made under the Freedom of Information Act 2000 (the Act) regarding
access to information you can lodge a complaint with the MPS to have the
decision reviewed.

Complaints should be made in writing, within forty (40) working days from
the date of the refusal notice, and addressed to:

FOI Complaint
Information Rights Unit
PO Box 57192
London
SW6 1SF
[email address]

In all possible circumstances the MPS will aim to respond to your
complaint within 20 working days.

The Information Commissioner

After lodging a complaint with the MPS if you are still dissatisfied with
the decision you may make application to the Information Commissioner for
a decision on whether the request for information has been dealt with in
accordance with the requirements of the Act.

For information on how to make application to the Information Commissioner
please visit their website at www.ico.org.uk.  Alternatively, write to or
phone:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Phone: 0303 123 1113

Total Policing is the Met's commitment to be on the streets and in your
communities to catch offenders, prevent crime and support victims. We are
here for London, working with you to make our capital safer.

 

Consider our environment - please do not print this email unless
absolutely necessary.

NOTICE - This email and any attachments may be confidential, subject to
copyright and/or legal privilege and are intended solely for the use of
the intended recipient. If you have received this email in error, please
notify the sender and delete it from your system.  To avoid incurring
legal liabilities, you must not distribute or copy the information in this
email without the permission of the sender. MPS communication systems are
monitored to the extent permitted by law.  Consequently, any email and/or
attachments may be read by monitoring staff. Only specified personnel are
authorised to conclude any binding agreement on behalf of the MPS by
email. The MPS accepts no responsibility for unauthorised agreements
reached with other employees or agents.  The security of this email and
any attachments cannot be guaranteed. Email messages are routinely scanned
but malicious software infection and corruption of content can still occur
during transmission over the Internet. Any views or opinions expressed in
this communication are solely those of the author and do not necessarily
represent those of the Metropolitan Police Service (MPS).

 

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Metropolitan Police Service (MPS)

Dear Mr Lamb

Freedom of Information Request Reference No: 2017050000017

I write in connection with your request for information which was received
by the Metropolitan Police Service (MPS) on 28/04/2017.  I note you seek
access to the following information:

Under the terms of the Freedom of Information Act 2000, I request
confirmation or denial of any current or intended police investigation
into the alleged common law offence of 'misconduct in public office' in
relation to any aspect of government decision making leading to the 2003
invasion of Iraq. I seek to identify no government minister or Whitehall
official as individual subjects of this request.

DECISION

The Metropolitan Police Service can neither confirm nor deny whether it
holds the information that you requested as the duty in Section 1(1)(a) of
the Freedom of Information Act 2000 (the Act) does not apply by virtue of
the following exemptions:

Section 30(3) - Criminal Investigations
Section 40(5) - Personal Information

Please see the legal annex for further information on the exemptions
applied in respect of your request.

REASONS FOR DECISION

This request attracts a NCND response, as to confirm or deny that
information is held prevents disclosure of whether or not there is a
current or intended police investigation into the alleged common law
offence of 'misconduct in public office' in relation to any aspect of
government decision making leading to the 2003 invasion of Iraq, therefore
engaging Section 30(3) of the Act.   In addition, Section 40(5) is engaged
as the number of people this request would refer to is limited and
therefore could be easily identifiable if we confirmed that information
were held or not, as such this exemption is engaged.

Please note this response should not be taken to as an indication of
whether or not the requested information is held.

Should you have any further enquiries concerning this matter, please
contact me via email at [email address], quoting the
reference number above.

Yours sincerely

C. Gayle-Petrou
Information Manager

LEGAL ANNEX

Section 17(1) of the Act provides:

(1)        A public authority which, in relation to any request for
information, is to any extent relying on a claim that any provision in
part II relating to the duty to confirm or deny is relevant to the request
or on a claim that information is exempt information must, within the time
for complying with section 1(1), give the applicant a notice which-

(a) states the fact,
(b) specifies the exemption in question, and
(c) states (if that would not otherwise be apparent) why the exemption
applies.

Section 30 - Investigations and proceedings conducted by public
authorities

(3) The duty to confirm or deny does not arise in relation to information
which is (or if it were held by the public authority would be) exempt
information by virtue of subsection (1) or (2).

http://www.legislation.gov.uk/ukpga/2000...

This is a qualified exemption for which I am required to conduct a public
interest test.

Public Interest Test

Factors favouring confirmation or denial for S30 – A statement confirming
or denying whether or not information is held (e.g. whether there is a
current or intended police investigation into the alleged common law
offence of 'misconduct in public office' in relation to any aspect of
government decision making leading to the 2003 invasion of Iraq) would
enhance the transparency and accountability of the force and its
operations. This would provide an insight into the police service and
enable the public to have better understanding of effectiveness of the
police, particularly, in relation to the spending of public funds and the
decisions taken by officers. This may also enhance public confidence in
the police.

If we confirmed or denied that information was held this would allow the
public to make informed decisions about how police gather intelligence.
This would greatly assist in the quality and accuracy of public debate,
which would otherwise likely be steeped in rumour and speculation.  

Factors against confirmation or denial for S30 – To confirm or deny the
existence of any information in relation to a current or intended
misconduct in a public office investigation would disclose MPS practices
used, thereby exposing operational procedures and investigative protocols.
 Information relating to investigative tactics and protocol will rarely be
disclosed under the Act and only where there is a strong public interest
consideration favouring disclosure.  

To confirm or deny that this level of policing activity has or has not
occurred in any specific area would enable those engaged in criminal,
terrorist or extremist activity to identify the focus of policing activity
and any tactics that may or may not be deployed.

To confirm or deny the existence of such information would also reveal
policing tactics regarding who was of interest to the police generally.
 This could be to the detriment of providing an efficient policing service
and a failure in providing a duty of care to all members of the public.

Balancing Test - Confirming or denying that any information is held, would
reassure the public that any current or future investigation is being or
is going to be properly conducted and would allow for a greater
understanding of how information is gathered. Confirming or denying that
any information relevant to the request is held, would however, enable
criminals/terrorists/extremists to identify the focus of policing activity
and evade prosecution.  Therefore, by neither confirming or denying that
information is held protects any ongoing investigation that the MPS may be
conducting.  After weighing up the competing interests, I believe that the
balance test favours neither confirmation or denial.

Section 40 - Personal information

Section 40 of the Freedom of Information Act 2000 is designed to address
information that is covered by the Data Protection Act 1998.

Under section 40(5)(b)(i), the MPS is not required to comply with the
requirements of section 1(1)(a) i.e. the duty to inform the applicant
whether or not the information is held.
In reaching this decision the Information Commissioners own guidance
proved useful and I have attached the appropriate link for your
information and perusal.

https://ico.org.uk/media/for-organisatio...

If held, any information would relate to third parties, namely specific
former members of government  and any acknowledgement as to whether or not
pertinent information is or is not held would, the MPS contends, breach
Principal 1 of the Data Protection Act 1998.  It is apparent from the
wording of your request that to acknowledge the existence of pertinent
information it would directly confirm whether specific government
officials were or likely to be subject to a police investigation.

It is also relevant to state that confirmation either way may be likely to
impair the ability of the MPS to protect personal data in relation to
similar requests for information in the future.

To the extent that the information requested would, if held, contain
personal data, the MPS is not required to confirm or deny whether such
information is held subject to the provisions of section 40(5)(b)(i) of
the Act.

Please note that the rationale presented above is in relation to the duty
to confirm whether the information requested is held by the MPS.
COMPLAINT RIGHTS

Are you unhappy with how your request has been handled or do you think the
decision is incorrect?

You have the right to require the Metropolitan Police Service (MPS) to
review their decision.

Prior to lodging a formal complaint you are welcome to discuss the
response with the case officer who dealt with your request.  

Complaint

If you are dissatisfied with the handling procedures or the decision of
the MPS made under the Freedom of Information Act 2000 (the Act) regarding
access to information you can lodge a complaint with the MPS to have the
decision reviewed.

Complaints should be made in writing, within forty (40) working days from
the date of the refusal notice, and addressed to:

FOI Complaint
Information Rights Unit
PO Box 57192
London
SW6 1SF
[email address]

In all possible circumstances the MPS will aim to respond to your
complaint within 20 working days.

The Information Commissioner

After lodging a complaint with the MPS if you are still dissatisfied with
the decision you may make application to the Information Commissioner for
a decision on whether the request for information has been dealt with in
accordance with the requirements of the Act.

For information on how to make application to the Information Commissioner
please visit their website at www.ico.org.uk.  Alternatively, write to or
phone:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Phone:  0303 123 1113

Total Policing is the Met's commitment to be on the streets and in your
communities to catch offenders, prevent crime and support victims. We are
here for London, working with you to make our capital safer.

 

Consider our environment - please do not print this email unless
absolutely necessary.

NOTICE - This email and any attachments may be confidential, subject to
copyright and/or legal privilege and are intended solely for the use of
the intended recipient. If you have received this email in error, please
notify the sender and delete it from your system.  To avoid incurring
legal liabilities, you must not distribute or copy the information in this
email without the permission of the sender. MPS communication systems are
monitored to the extent permitted by law.  Consequently, any email and/or
attachments may be read by monitoring staff. Only specified personnel are
authorised to conclude any binding agreement on behalf of the MPS by
email. The MPS accepts no responsibility for unauthorised agreements
reached with other employees or agents.  The security of this email and
any attachments cannot be guaranteed. Email messages are routinely scanned
but malicious software infection and corruption of content can still occur
during transmission over the Internet. Any views or opinions expressed in
this communication are solely those of the author and do not necessarily
represent those of the Metropolitan Police Service (MPS).

 

Find us at:

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Twitter: @metpoliceuk

christopher lamb

Dear Metropolitan Police Service (MPS),

I request an internal review of the decision you have reached to neither confirm or deny that an investigation has started- or is intended- into whether the crime of misconduct in public office applies to any aspect of government decision making leading to the 2003 invasion of Iraq. My request did not ask for identification of any former minister, civil servant or military figure.

My request for an internal review is based on the following grounds:-
i) In my view, the following paragraph in your reply, under the heading of 'Reasons for Decision', is tautological and doesn't really make sense;

' This request attracts a NCND response, as to confirm or deny that
information is held prevents disclosure of whether or not there is a
current or intended police investigation into the alleged
offence of 'misconduct in public office' in relation to any aspect of
government decision making leading to the 2003 invasion of Iraq, therefore
engaging Section 30(3) of the Act.'

In reality, there is no substantive difference between confirmation and 'disclosure', as disclosure confirms whether or not there is a current or intended police investigation into 'the alleged offence of misconduct in public office'. What is disclosed is the confirmation, so it is not possible for confirmation to prevent disclosure. If you prefer I use the term 'disclosure' or add a slight amendment of 'disclosure of confirmation' within my request, I am willing to do so.

ii) On the point you make about section 40(5) of the Act; your internal review- responding to my previous request seeking confirmation of whether an investigation had started or was intended into former Prime Minister, Tony Blair, and the alleged offence of misconduct in public office over decision making which initiated the 2003 invasion of Iraq- advised that an NCND response was required particularly because of the specificity of my request. A non-specific request was far more likely to attain a positive response of confirmation. My current request could not be more non-specific in what it seeks.

In any case, your observation that a response to my request concerning the alleged offence would refer to a group of people limited in number from which individuals could be identified strongly suggests that the Metropolitan Police has an investigation in mind- if it has not already started- in order to have confirmed that the group would be this small. Additionally, if the Metropolitan Police considers that there are grounds to believe that an offence has been committed- particularly of this degree of seriousness- is it not duty bound to investigate it?

I look forward to your internal review.

Yours faithfully,

christopher lamb

Metropolitan Police Service (MPS)

Dear Mr Lamb

Freedom of Information Review Reference No: 2017050000721

I write in connection with your request for a review of the handling
and/or decision relating to  2017050000017 which was received by the
Metropolitan Police Service (MPS) on  20/05/2017.  

A review will now be conducted in accordance with the Code of Practice
issued under Section 45 of the Freedom of Information Act 2000 (the Act).
 The reviewing officer will reconsider the original request before
responding to you with their findings.

There is no statutory time limit in relation to the completion of an
Internal Review.  However, the MPS aim to complete Internal Reviews within
20 working days or in exceptional cases, within 40 working days.  This is
based upon guidance published by the Information Commissioner.

If it is not possible to complete the Internal Review within this
timescale you will be informed at the earliest opportunity.

If you are unhappy with the outcome of an Internal Review you may wish to
refer the matter to the Information Commissioner's Office (ICO).

For information on how to make an application to the Information
Commissioner please visit their website at www.ico.org.uk.  Alternatively,
write to or phone:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Phone:  0303 123 1113

Yours sincerely

Peter Deja
Support Officer - Freedom of Information Triage Team

Total Policing is the Met's commitment to be on the streets and in your
communities to catch offenders, prevent crime and support victims. We are
here for London, working with you to make our capital safer.

 

Consider our environment - please do not print this email unless
absolutely necessary.

NOTICE - This email and any attachments may be confidential, subject to
copyright and/or legal privilege and are intended solely for the use of
the intended recipient. If you have received this email in error, please
notify the sender and delete it from your system.  To avoid incurring
legal liabilities, you must not distribute or copy the information in this
email without the permission of the sender. MPS communication systems are
monitored to the extent permitted by law.  Consequently, any email and/or
attachments may be read by monitoring staff. Only specified personnel are
authorised to conclude any binding agreement on behalf of the MPS by
email. The MPS accepts no responsibility for unauthorised agreements
reached with other employees or agents.  The security of this email and
any attachments cannot be guaranteed. Email messages are routinely scanned
but malicious software infection and corruption of content can still occur
during transmission over the Internet. Any views or opinions expressed in
this communication are solely those of the author and do not necessarily
represent those of the Metropolitan Police Service (MPS).

 

Find us at:

Facebook: Facebook.com/metpoliceuk

Twitter: @metpoliceuk

Metropolitan Police Service (MPS)

Dear Mr Lamb

Freedom of Information Review Reference No: 2017050000721

Further to our earlier correspondence dated [insert date], I am now able
to provide a response to your complaint concerning Freedom of Information
Act (FOIA) request reference number: 2017050000017.  

This review concentrates on the following request that you submitted to
the Metropolitan Police Service (MPS) on 28/04/2017:

Under the terms of the Freedom of Information Act 2000, I request
confirmation or denial of any current or intended police investigation
into the alleged common law offence of 'misconduct in public office' in
relation to any aspect of government decision making leading to the 2003
invasion of Iraq. I seek to identify no government minister or Whitehall
official as individual subjects of this request.

REVIEW DECISION

The Metropolitan Police Service (MPS) has completed its review and has
decided to:

Uphold the original decision

REASON FOR DECISION

As part of my review, I have considered whether or not the application of
Section 30(3) and 40 (5) exemptions were appropriate in this circumstance.
 

You have stated the following:

I request an internal review of the decision you have reached to neither
confirm nor deny that an investigation has started- or is intended- into
whether the crime of misconduct in public office applies to any aspect of
government decision making leading to the 2003 invasion of Iraq. My
request did not ask for identification of any former minister, civil
servant or military figure.

My request for an internal review is based on the following grounds:-
i) In my view, the following paragraph in your reply, under the heading of
'Reasons for Decision', is tautological and doesn't really make sense;

'This request attracts a NCND response, as to confirm or deny that
information is held prevents disclosure of whether or not there is a
current or intended police investigation into the alleged offence of
'misconduct in public office' in relation to any aspect of government
decision making leading to the 2003 invasion of Iraq, therefore engaging
Section 30(3) of the Act.'

In reality, there is no substantive difference between confirmation and
'disclosure', as disclosure confirms whether or not there is a current or
intended police investigation into 'the alleged offence of misconduct in
public office'. What is disclosed is the confirmation, so it is not
possible for confirmation to prevent disclosure. If you prefer I use the
term 'disclosure' or add a slight amendment of 'disclosure of
confirmation' within my request, I am willing to do so.

The review takes note of your comments, however a neither confirm nor deny
response is required in these circumstances to protect the consequences of
disclosure, as to confirm that the information you have requested is or is
not held would in itself be supplying the information into the public
domain.

The wording of your request is such that it pertains to a very specific
area of policing and as a consequence of this, it infers a relation to
specific individuals. It relies on the MPS confirming or denying the
existence of a specific investigation/s; and the need for consistency when
neither confirming nor denying whether information is held in order to
protect policing information and in addition, personal data.

For the type of information you have requested, under the Act, the MPS is
not required to confirm or deny whether the information requested is held
subject to the provision of:

Section 30(3) - Investigations and proceedings conducted by public
authorities
Section 40(5) - Personal Information

The Act creates a statutory right of access to information held by public
authorities. Section 1(1) of the Act requires a public authority in
receipt of a request to:
 

* Confirm whether they hold the requested information and if so,
* Communicate the requested information to the applicant.

Furthermore, the Act is designed to place information into the public
domain. Therefore, once access to information is granted to one person
under the Act, it is then considered to be public information and must be
communicated to any individual upon request.
The right of access to information is subject to a number of exemptions
that are designed to enable information that is not suitable for release
to be withheld.

The duty to confirm or deny

I draw your attention to the Information Commissioner's Office (ICO)
guidance titled 'When to refuse to confirm or deny information is held'
and in particular the highlighted points which are pertinent to your
request: :

'In certain circumstances, even confirming or denying that requested
information is held can reveal information that falls under an exemption.
A public authority may be able to use an exemption to refuse to confirm
whether or not it holds information, if either confirming or denying would
reveal exempt information in itself.

A neither confirm nor deny response is more likely to be needed for very
specific requests than for more general or wide ranging requests.

It can be important to use a neither confirm nor deny response
consistently, every time a certain type of information is requested,
regardless of whether the information is actually held or not. For this
reason public authorities need to be alert to the possibility of receiving
future requests for the same type of information when handling very
specific or detailed requests.'

'There are situations where a public authority will need to use the
neither confirm nor deny response consistently over a series of separate
requests, regardless of whether it holds the requested information. This
is to prevent refusing to confirm or deny being taken as an indication of
whether information is held. Before complying with section 1(1)(a), public
authorities should consider both whether any harm would arise from
confirming that information is held and whether harm would arise from
stating that no information is held. Otherwise, if the same (or same type
of) requests were made on several occasions, a changing response could
reveal whether information was held.'

The ICO's guidance further explains the harm in issuing a statement
confirming or denying whether information is held and demonstrates the
following:

* Exempt information may be revealed by:

o        Confirming information is held
o        Confirming information is not held
o        Inconsistently applying neither confirm nor deny (NCND)
exemptions in response to the same or similar requests

* It is only necessary to demonstrate the harm in one of the above
scenarios for an NCND response to be appropriate
* Cumulative prejudice may result from multiple disclosures
* It would be sufficient for a public authority to demonstrate that a
confirmation or denial would be revealing to someone with specialist
knowledge
* The wording of a request may determine whether an NCND response is
appropriate.

The ICO guidance also states:

'The exact wording of the request for information is an important
consideration when deciding whether a public authority should confirm or
deny if it holds the requested information. The more specific the request,
the more likely it is that a public authority will need to give a neither
confirm nor deny response.'

The MPS needs to be alert to requests for certain types of information,
such as requests relating to investigations that may have been conducted
or may be conducted at a future date.

The MPS regularly receives requests for information that, if held, could
relate to investigations, infer personal data and/or otherwise relate to
law enforcement. A hypothetical confirmation that such information is not
held could also engage one or more FoIA exemptions.

Section 30  - Investigations and proceedings

Section 30 is a 'class-based' exemption and would apply to any 'class' of
information that would, if held, have been held at any time by the MPS for
the purpose of an investigation the MPS has a duty to conduct. The harm in
disclosing information relating to an investigation is inherent in the
exemption.

The ICO guidance titled 'Investigations and proceedings (section 30)'
 states:

'In broad terms, the section 30 exemptions exist to ensure the effective
investigation and prosecution of offences and the protection of
confidential sources. They recognise the need to prevent disclosures that
would prejudice either a particular investigation or set of proceedings,
or the investigatory and prosecution processes generally, including any
prejudice to future investigations and proceedings.'

The ICO's guidance titled Law Enforcement (Section 31)  states:

'83…Typically, where a request identifies an individual or an organisation
as the possible subject of an investigation or a particular line of
enquiry a public authority could be pursuing, the more chance there is
that confirming the information's existence would, or would be likely to,
prejudice that investigation.

84. Clearly confirming there was, or had been, an investigation would not
be prejudicial if there had already been official acknowledgement of its
existence.

85. The example above demonstrates the need, in some circumstances, to
apply the NCND provision consistently. Where confirmation or denial would
reveal whether a particular person was under investigation and where this
would, or would be likely to, prejudice such investigations, public
authorities should be alert to the need to apply the NCND provision. If it
is only applied where the requested information is held, this will become
apparent over time and defeat the purpose behind the exemption.'

The MPS has a duty to conduct investigations with a view to ascertaining
whether a person should be charged with an offence, or whether a person
charged with an offence is guilty of it. Consequently the MPS as a public
authority is entitled to rely upon section 30(3) to the extent that the
requested information, if held, could have been held at any time for the
purpose of such investigations. As outlined above, it is necessary to use
NCND exemptions consistently, regardless of whether the requested
information is held or not. Consequently, citing section 30(3) in no way
confirms or denies the existence of an investigation.

In the circumstances of your request, the MPS is not required to confirm
or deny whether the requested information is held.

Section 40 - Personal Data

You have commented the following:

My request did not ask for identification of any former minister, civil
servant or military figure.

You have added:

ii) On the point you make about section 40(5) of the Act; your internal
review- responding  to my previous request seeking confirmation of whether
an investigation had started or was intended into former Prime Minister,
Tony Blair,  and the alleged offence of misconduct in public office over
decision making which initiated the 2003 invasion of Iraq- advised that an
NCND response was required particularly because of the specificity of my
request. A non-specific request was far more likely to attain a positive
response of confirmation. My current request could not be more
non-specific in what it seeks.

In any case, your observation that a response to my request concerning the
alleged offence would refer to a group of people limited in number from
which individuals could be identified strongly suggests  that the
Metropolitan Police has an investigation in mind- if it has not already
started- in order to have confirmed that the group would be this small.
Additionally, if the Metropolitan Police considers that there are grounds
to believe that an offence has been committed- particularly of this degree
of seriousness- is it not duty bound to investigate it?

You have not named individuals in your request, however, the very specific
nature of the type of investigation you have asked about, that is any
current or intended police investigation into the alleged common law
offence of 'misconduct in public office' in relation to any aspect of
government decision making leading to the 2003 invasion of Iraq would mean
that to confirm or deny information is held would in itself implicate
individuals as the number of people this would refer to would be limited
and therefore easily identifiable.

Section 40(5)(b)(i) of the Freedom of Information Act 2000 is applicable
in circumstances where a confirmation or denial in relation to whether
information is held would breach one or more of the data protection
principles specified within the Data Protection Act 1998.

Personal data is defined within section 1 of the Data Protection Act 1998
as:

'data which relate to a living individual who can be identified-
(a) from those data, or
(b) from those data and other information which is in the possession of,
or is likely to come into the possession of, the data controller'

The ICO's guidance titled 'Determining what is personal data'  states:

"When considering identifiability it should be assumed that you are not
looking just at the means reasonably likely to be used by the ordinary man
in the street, but also the means that are likely to be used by a
determined person with a particular reason to want to identify
individuals. Examples would include investigative journalists, estranged
partners, stalkers, or industrial spies."

The ICO guidance titled 'Anonymisation: managing data protection risk code
of practice'  states:

'Note that 'identified' does not necessarily mean 'named'. It can be
enough to be able to establish a reliable connection between particular
information and a known individual.'

This shows that it is necessary to consider information that is in the
public domain and/or information that may be known to other members of the
public when considering whether individuals are identifiable.

A request for information to a public authority is entitled to be informed
in writing whether it holds the information specified in the request.  The
Information Commissioner's Office (ICO) guidance titled 'The duty to
confirm or deny' states:

'If information has been requested but is not held, it will normally be
reasonable to inform the applicant of this fact. However, there may be
some exceptional cases where it would not even be right to confirm or deny
that information requested was held. For instance, in the areas of
policing, it would not make sense to allow criminals to discover if they
were under suspicion and, if so, to discover the extent of those
suspicions.'

http://www.ico.gov.uk/for_organisations/...

To confirm or deny whether personal information exists in response to your
request could publicly reveal information about individual(s), thereby
breaching the right to privacy afforded to persons under the Data
Protection Act 1998.

Under section 40(5)(b)(i) of the Freedom of Information Act, the MPS is
not required to comply with the requirements of section 1(1)(a) i.e. the
duty to inform the applicant whether or not the information is held.
Section 40(5)(b)(i) of the Freedom of Information Act 2000 is applicable
in circumstances where a confirmation or denial in relation to whether
information is held would breach one or more of the data protection
principles specified within the Data Protection Act 1998.  This is
explained in the ICO's guidance titled 'Neither confirm nor deny in
relation to personal data' which states:

'There may be circumstances, for example requests for information about
criminal investigations or disciplinary records, in which simply to
confirm whether or not a public authority holds that personal data about
an individual can itself reveal something about that individual. To either
confirm or deny that the information is held could indicate that a person
is or is not the subject of a criminal investigation or a disciplinary
process. If to do so would contravene data protection principles, for
example because it would be unfair, then the public authority is not
obliged to confirm or deny that it holds the information.

In some cases, if a public authority confirms that it does not hold
certain data about an individual, this may itself amount to a disclosure
of personal data, because it may tell the world something about that
individual. Therefore, a public authority should not restrict the use of
this exemption to cases where it holds the requested information. It is
also appropriate for the public authority to use it where it does not hold
the information, if to disclose that fact would contravene the data
protection principles.

This subsection refers to giving the confirmation or denial "to a member
of the public". This reflects the fact that, in general terms, FOIA is
concerned with disclosure to the world, and not to the particular
individual who submitted the request. There may be situations in which it
could be argued that giving the confirmation or denial to the requester
would not necessarily contravene data protection principles because the
requester already knows that the public authority holds the information.

An example of this could be if someone complained to their local council
that their next door neighbour was creating a noise nuisance, and then
submitted a FOIA request to the council for information about the
investigation of that complaint. If the council confirmed that it held the
information, then even if they withheld the information itself under a
FOIA exemption, the confirmation alone would disclose personal data about
the subject of the complaint, ie it would show that they were under
investigation for causing a nuisance.

It may be argued that it would not be unfair to the data subject to tell
the requester this, since it would simply confirm what the requester
already knows. However, disclosure under FOIA is in effect disclosure to
the world; the test in 40(5)(b)(i) is whether giving the conformation or
denial to "a member of the public" would contravene data protection
principles. It is likely that in this hypothetical case it would be unfair
to the data subject to tell the world that they are under investigation,
and hence it would contravene the First Principle.

http://www.ico.org.uk/for_organisations/...

The ICO's 'When to refuse to confirm or deny information is held' guidance
states:

'The exact wording of the request for information is an important
consideration when deciding whether a public authority should confirm or
deny if it holds the requested information. The more specific the request,
the more likely it is that a public authority will need to give a neither
confirm nor deny response.'

http://www.ico.org.uk/for_organisations/...

Your request would appear to relate to a specific individual and/or a
specific area of policing rather than policing in general.

The ICO guidance cited above broadly explains the following:

* Exempt information may be revealed by:

o        Confirming information is held
o        Confirming information is not held
o        Inconsistently applying NCND exemptions in response to the same
or similar requests

* It is only necessary to demonstrate the harm in one of the above
scenarios for an NCND response to be appropriate
* Cumulative prejudice may result from multiple disclosures
* It would be sufficient for a public authority to demonstrate that a
confirmation or denial would be revealing to someone with specialist
knowledge
* The wording of a request may determine whether an NCND response is
appropriate.

The ICO guidance titled 'Personal information' indicates that the
following factors are relevant when assessing whether a disclosure under
FoIA would be fair:

* whether the information is sensitive personal data;
* the possible consequences of disclosure on the individual;
* the reasonable expectations of the individual, taking into account:

o        their expectations both at the time the information was collected
and at the time of the request
o        the nature of the information itself
o        the circumstances in which the information was obtained
o        whether the information has been or remains in the public domain
o        the FOIA principles of transparency and accountability

* any legitimate interests in the public having access to the
information and the balance between these and the rights and freedoms
of the individuals who are the data subjects.

http://www.ico.org.uk/for_organisations/...

Conclusion - Section 40(5)

Section 40 of the Freedom of Information Act 2000 is designed to address
information that is covered by the Data Protection Act 1998.  Under
section 40(5)(b)(i), the MPS is not required to confirm whether
information is held if the confirmation or denial could contravene any of
the data protection principles.

Please note that the rationale presented above is in relation to the duty
to confirm whether the information requested is held by the MPS.
Therefore, this correspondence neither confirms nor denies that the MPS
holds the information that you have requested.

The review hopes the explanation provides clarity around why the MPS
neither confirm nor deny that any additional information is held..

If you are dissatisfied with the outcome of this internal review you have
the right to appeal the decision by contacting the Information
Commissioner's Office (ICO) for a decision on whether the request for
information has been dealt with in accordance with the requirements of the
FOIA.

For information on how to make an application to the Information
Commissioner please visit their website at www.ico.org.uk.  Alternatively,
write to or phone:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Phone:  0303 123 1113

Yours sincerely

Yvette Taylor
Information Manager
 

 
 
LEGAL ANNEX

Section 1(1) (General right of access to information held by public
authorities) of the Freedom of Information Act 2000 states:

(1) Any person making a request for information to a public authority is
entitled-
(a) to be informed in writing by the public authority whether it holds
information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.

http://www.legislation.gov.uk/ukpga/2000...

Section 17(1) (Refusal of request) of the Freedom of Information Act 2000
states:

(1)A public authority which, in relation to any request for information,
is to any extent relying on a claim that any provision of Part II relating
to the duty to confirm or deny is relevant to the request or on a claim
that information is exempt information must, within the time for complying
with section 1(1), give the applicant a notice which-
(a) states that fact,
(b) specifies the exemption in question, and
(c) states (if that would not otherwise be apparent) why the exemption
applies.

http://www.legislation.gov.uk/ukpga/2000...

Section 30(1)(a), 30(2) & 30(3) (Investigations) of the Freedom of
Information Act 2000 states:

(1) Information held by a public authority is exempt information if it has
at any time been held by the authority for the purposes of-
(a) any investigation which the public authority has a duty to conduct
with a view to it being ascertained-
(i) whether a person should be charged with an offence, or
(ii) whether a person charged with an offence is guilty of it

(2) Information held by a public authority is exempt information if-
(a) it was obtained or recorded by the authority for the purposes of its
functions relating to-
(i) investigations falling within subsection (1)(a) or (b),
(ii) criminal proceedings which the authority has power to conduct,
(iii) investigations (other than investigations falling within subsection
(1)(a) or (b)) which are conducted by the authority for any of the
purposes specified in section 31(2) and either by virtue of Her Majesty's
prerogative or by virtue of powers conferred by or under any enactment, or
(iv) civil proceedings which are brought by or on behalf of the authority
and arise out of such investigations, and
(b) it relates to the obtaining of information from confidential sources.

(3) The duty to confirm or deny does not arise in relation to information
which is (or if it were held by the public authority would be) exempt
information by virtue of subsection (1) or (2).

http://www.legislation.gov.uk/ukpga/2000...

Section 40(2), 40(3) & 40(5) (Personal Information) of the Freedom of
Information Act 2000 states:

(2) Any information to which a request for information relates is also
exempt information if-
(a) it constitutes personal data which do not fall within subsection (1),
and
(b) either the first or the second condition below is satisfied.

(3) The first condition is-
(a) in a case where the information falls within any of paragraphs (a) to
(d) of the definition of "data" in section 1(1) of the Data Protection Act
1998, that the disclosure of the information to a member of the public
otherwise than under this Act would contravene-
(i) any of the data protection principles, or

(5)The duty to confirm or deny-
(a) does not arise in relation to information which is (or if it were held
by the public authority would be) exempt information by virtue of
subsection (1), and
(b) does not arise in relation to other information if or to the extent
that either-
(i) the giving to a member of the public of the confirmation or denial
that would have to be given to comply with section 1(1)(a) would (apart
from this Act) contravene any of the data protection principles or section
10 of the Data Protection Act 1998 or would do so if the exemptions in
section 33A(1) of that Act were disregarded, or
(ii) by virtue of any provision of Part IV of the Data Protection Act 1998
the information is exempt from section 7(1)(a) of that Act (data subject's
right to be informed whether personal data being processed).

http://www.legislation.gov.uk/ukpga/2000...

1.
https://ico.org.uk/media/for-organisatio...
2.
ttps://ico.org.uk/media/for-organisations/documents/1205/investigations-and-proceedings-foi-section-30.pdf
3.
https://ico.org.uk/media/for-organisatio...
4.
https://ico.org.uk/media/for-organisatio...
5. https://ico.org.uk/media/1061/anonymisat...

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communities to catch offenders, prevent crime and support victims. We are
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