All information relating to line interceptions by BT or Phorm

John Yorke made this Freedom of Information request to West Mercia Police

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

The request was refused by West Mercia Police.

Dear Sir or Madam,

I would like to know any information the Police have regarding complaints and any investigations of Phorm or BT with regard to illegal phone line interceptions or breach of RIPA.

Specifically I understand that the Force Solicitor has issued a legal opinion on the actions by BT and Phorm whilst conducting the 'Phorm Trials' in 2006 and 2007.

Also if there has been any instruction, memos or directives, whether formal or informal from the Home Office regarding how to deal with complaints about BT and Phorm regarding these trials.

Yours faithfully,

information,

Dear Mr Yorke

FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI 1407

I write in connection with your request for information which was dated
and received on 24^th June 2008.

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, subject to
the information not being exempt or containing a reference to a third
party. In some circumstances West Mercia Constabulary may be unable to
achieve this deadline. If this is likely you will be informed and given a
revised time-scale at the earliest opportunity.

There may be a fee payable for the retrieval, collation and provision of
the information you request. If this is the case you will be informed and
the 20 working day timescale will be suspended until we receive payment
from you. If you chose not to make payment then your request will remain
unanswered.

Some requests may also require either full or partial transference to
another public authority in order to answer your query in the fullest
possible way. Again, you will be informed if this is the case.

Should you have any further enquiries concerning this matter, please write
or telephone the Information Compliance Unit quoting the reference number
above.

Yours sincerely

Miss R Forrest

Deputy Information Compliance Manager

Information Compliance Unit

West Mercia Constabulary

PO Box 55

Hindlip

Worcester

WR3 8SP

01905 331545 / 331565

show quoted sections

information,

Dear Mr Yorke

FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI 1407

I write in connection with your request for information which was dated
and received on 24^th June 2008. .

I regret to inform you that West Mercia Constabulary has not been able to
complete its response to your request within the 20 working days because
we are considering a qualified exemption/s and the Public Interest Test.

I now advise you that the amended date for a response is 19^th July 2008.
I can assure you that every effort will be made to ensure an appropriate
response will be made within this new timescale.

Your attention is drawn to the attached sheet which details your right of
complaint.

Should you have any further enquiries concerning this matter, please write
or telephone the Information Compliance Unit quoting the reference number
above.

Yours sincerely

Miss R Forrest

Information Compliance Unit

Information Management and Technology Department

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 West Mercia Constabulary (WMC) to review
their decision.

Prior to lodging a formal complaint you are welcome and encouraged to
discuss the decision with the person that dealt with your request.

Ask to have the decision looked at again -

The quickest and easiest way to have the decision looked at again is to
telephone the person named at the end of your decision letter.

That person will be able to discuss the decision, explain any issues and
assist with any problems.

Complaint

If you are dissatisfied with the handling procedures or the decision of
WMC made under the Freedom of Information Act 2000 (the Act) regarding
access to information, you can lodge a complaint with WMC to have the
decision reviewed. WMC must be notified of your intention to complain
within 2 months of the date of its response to your Freedom of Information
request. Complaints should be made in writing and addressed to:

West Mercia Constabulary Headquarters

Information Compliance Unit

Hindlip Hall

Hindlip

PO Box 55

Worcester

WR3 8SP

In all possible circumstances, WMC will aim to respond to your complaint
within 2 months.

The Information Commissioner

After lodging a complaint with WMC 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.informationcommissioner.gov.uk
Alternatively, phone or write to:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Phone: 01625 545700

show quoted sections

information,

Please accept my Apologies Mr Yorke,

The below amended date for disclosure should read 19^th August 2008 not
19^th July 2008

Thankyou

Miss R Forrest

From: information
Sent: 22 July 2008 11:45
To: '[FOI #833 email]'
Subject: FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI 1407

Dear Mr Yorke

FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI 1407

I write in connection with your request for information which was dated
and received on 24^th June 2008. .

I regret to inform you that West Mercia Constabulary has not been able to
complete its response to your request within the 20 working days because
we are considering a qualified exemption/s and the Public Interest Test.

I now advise you that the amended date for a response is 19^th July 2008.
I can assure you that every effort will be made to ensure an appropriate
response will be made within this new timescale.

Your attention is drawn to the attached sheet which details your right of
complaint.

Should you have any further enquiries concerning this matter, please write
or telephone the Information Compliance Unit quoting the reference number
above.

Yours sincerely

Miss R Forrest

Information Compliance Unit

Information Management and Technology Department

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 West Mercia Constabulary (WMC) to review
their decision.

Prior to lodging a formal complaint you are welcome and encouraged to
discuss the decision with the person that dealt with your request.

Ask to have the decision looked at again -

The quickest and easiest way to have the decision looked at again is to
telephone the person named at the end of your decision letter.

That person will be able to discuss the decision, explain any issues and
assist with any problems.

Complaint

If you are dissatisfied with the handling procedures or the decision of
WMC made under the Freedom of Information Act 2000 (the Act) regarding
access to information, you can lodge a complaint with WMC to have the
decision reviewed. WMC must be notified of your intention to complain
within 2 months of the date of its response to your Freedom of Information
request. Complaints should be made in writing and addressed to:

West Mercia Constabulary Headquarters

Information Compliance Unit

Hindlip Hall

Hindlip

PO Box 55

Worcester

WR3 8SP

In all possible circumstances, WMC will aim to respond to your complaint
within 2 months.

The Information Commissioner

After lodging a complaint with WMC 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.informationcommissioner.gov.uk
Alternatively, phone or write to:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Phone: 01625 545700

show quoted sections

information,

Dear Mr Yorke

FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI 1407

I write in connection with your request for information which was dated
and received on 24^th June 2008. .

I regret to inform you that West Mercia Constabulary has not been able to
complete its response to your request within the extended deadline because
we are considering a qualified exemption/s and the Public Interest Test.

I now advise you that the amended date for a response is 17^th September
2008. I can assure you that every effort will be made to ensure an
appropriate response will be made within this new timescale.

Your attention is drawn to the attached sheet which details your right of
complaint.

Should you have any further enquiries concerning this matter, please write
or telephone the Information Compliance Unit quoting the reference number
above.

Yours sincerely

Miss R Forrest

Information Compliance Unit

Information Management and Technology Department

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 West Mercia Constabulary (WMC) to review
their decision.

Prior to lodging a formal complaint you are welcome and encouraged to
discuss the decision with the person that dealt with your request.

Ask to have the decision looked at again -

The quickest and easiest way to have the decision looked at again is to
telephone the person named at the end of your decision letter.

That person will be able to discuss the decision, explain any issues and
assist with any problems.

Complaint

If you are dissatisfied with the handling procedures or the decision of
WMC made under the Freedom of Information Act 2000 (the Act) regarding
access to information, you can lodge a complaint with WMC to have the
decision reviewed. WMC must be notified of your intention to complain
within 2 months of the date of its response to your Freedom of Information
request. Complaints should be made in writing and addressed to:

West Mercia Constabulary Headquarters

Information Compliance Unit

Hindlip Hall

Hindlip

PO Box 55

Worcester

WR3 8SP

In all possible circumstances, WMC will aim to respond to your complaint
within 2 months.

The Information Commissioner

After lodging a complaint with WMC 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.informationcommissioner.gov.uk
Alternatively, phone or write to:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Phone: 01625 545700

show quoted sections

information,

Dear Mr Yorke

FREEDOM OF INFORMATION REQUEST REFERENCE NO: RFI 1407

I write in connection with your request for information which was dated
and received on 24^th June 2008. Please find below the response to your
request:

1. I would like to know any information the Police have regarding
complaints and any investigations of Phorm or BT with regard to illegal
phone line interceptions or breach of RIPA.

REPLY: Section 1 of the Freedom of Information Act 2000 (FOIA) places two
duties on public authorities. Unless exemptions apply, the first duty at
s1(1)(a) is to confirm or deny whether the information specified in a
request is held. The second duty at s1(1)(b) is to disclose information
that has been confirmed as being held. Where exemptions are relied upon,
section 17 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) state (if that would not otherwise be apparent) why the exemption
applies.

West Mercia Constabulary can neither confirm nor deny that it holds the
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:

S40(5) Personal Information

S30(3) Investigations

S31(3) Law Enforcement

Please be advised that any information released as a result of a Freedom
of Information request, in effect, is being released into the public
domain. Therefore, it could subsequently be published or would have to be
made available to any member of the public if it were requested.

Section 40 Personal Information

Any information that relates to an individual, or from which an individual
could be identified, constitutes personal data and to release information
that constitutes personal data into the public domain contravenes the Data
Protection Act 1998. The information that you have requested contains
personal data and/or that which could identify an individual and therefore
it is exempt from disclosure, the exemption that applies to this type of
information is Section 40 of the Freedom of Information Act 2000

This exemption is absolute and class-based and as such does not require
evidence of the harm in disclosure or the public interest test (PIT) to be
considered.

S30 Investigations and proceedings conducted by public authorities

S30(1) relates to investigations in general terms and covers information
that has been held by a public authority gathered at any time in relation
to a specific investigation, criminal or otherwise. In this case the
information you have requested would have been gathered only for the
purposes of an investigation.

This is a qualified and class-based exemption and, as such, I am required
to complete a public interest test on disclosure (see below).

Section 31(1) Law Enforcement

Disclosure of information which would be likely to prejudice the
prevention and detection of crime, the apprehension or prosecution of
offenders or the administration of justice is covered by this exemption.

This is a prejudice and qualified-exemption, and the harm and PIT in
disclosure is outlined below

Public Interest Test

Favouring disclosure

. Accountability - The release of information would demonstrate
transparency of purpose by the Police Service. The force and its officers
are accountable to the public for their actions in respect of any
investigations they undertake and any subsequent action that is taken,
disclosure would relate to the efficiency and effectiveness of the force
and its officers.

Favouring Non-disclosure

. Investigations - it is the Association of Chief Police Officer's
approach that information relating to an investigation will rarely be
disclosed under the provisions of the Freedom of Information Act. Whilst
such information may be released in order to serve a `tangible community
benefit' it will only be disclosed following a Freedom of Information
request if there are strong public interest considerations favouring
disclosure. The further the considerations favouring disclosure are from a
tangible community benefit, the lighter the considerations will be. In
this case, it is not felt that disclosure of the requested information
will serve any tangible community benefit.

. Flow of information to the force - release may undermine public
confidence and co-operation and act as a deterrent for the public to
provide information. If a precedent was set It would be likely to prevent
victims and potential witnesses coming forward in the future and may
inhibit the force in performing its public service functions. It is
particularly important that the public have confidence that their
information will be treated sensitively and appropriately.

Balancing Test

I have considered this request and am aware that this information would be
of particular importance to you.

However, whilst the force is accountable for its actions in relation to
investigations undertaken, it is essential that the release of information
does not breach an individual's Data Protection or Human rights, affect
future investigations or damage the criminal justice process.

Please be advised that `the public interest` is not what interests the
public, but what will be beneficial to the community as a whole.
Disclosure made under the Freedom of Information is disclosure into the
public domain (for all to see)and it is not in the public interest to
disclose information that adversely impacts on the force in performing its
public service functions.

It is my decision; therefore, that in this case the public interest test
balance, favours non-disclosure.

This represents a refusal for this particular part of your request.

2. Specifically I understand that the Force Solicitor has issued a legal
opinion on the actions by BT and Phorm whilst conducting the 'Phorm
Trials' in 2006 and 2007.

REPLY: I am not obliged to supply the information that you have
requested. Section 17 of the Freedom of Information Act 2000 requires West
Mercia Constabulary, when refusing to provide such information (because
the information is exempt) to provide you the applicant with 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.

The information you have requested is exempt from disclosure under the
Freedom of Information Act 2000. The exemption applicable in this
case is:

Section 42 Legal Professional Priviledge

This is a Qualified, Class Based exemption. Please see the Public Interest
test below.

Public Interest Test

Considerations favouring disclosure

Accountability

There is a public interest in public authorities being accountable for the
quality of their decision-making. Ensuring that decisions have been made
on the basis of good quality legal advice is part of that accountability.
Transparency in the decision-making process and access to the information
upon which decisions have been made can enhance accountability.

It could be argued that there is a public interest in some cases in
knowing whether or not legal advice has been followed. However, the
factual position is unlikely to be so simple. Legal advice is often
complex and involves a fine balance of risks. Instances of departments
overriding unequivocal legal advice will be very rare.

Considerations favouring non- disclosure

Tortuous Duty

The legal adviser needs to be able to present the full picture to his or
her departmental clients, which includes not only arguments in support of
his or her final conclusions but also the arguments that may be made
against them. It is in the nature of legal advice that it often sets out
the possible arguments both for and against a particular view, weighing up
their relative merits. This means that legal advice obtained by a
department will often set out the perceived weaknesses of the department's
position.

Disclosure of legal advice has a high potential to prejudice the force's
ability to defend its legal interests - both directly, by unfairly
exposing its legal position to challenge, and indirectly by diminishing
the reliance it can place on the advice having been fully considered and
presented without fear or favour. Neither of these is in the public
interest. The former could result in serious consequential loss or at
least in a waste of resources in defending unnecessary challenges. The
latter may result in poorer decision-making because decisions themselves
may not be taken on a fully informed basis.

Flow of information to/within the service or force

There is a risk that lawyers and clients will avoid making a permanent
record of the advice that is sought or given or make only a partial
record.

This would be contrary to the public interest. It is in the public
interest that the provision of legal advice is fully recorded in writing
and that the process of decision-making is described accurately and fully.
As policy develops or litigation decisions are made it will be important
to be able to refer back to advice given along the way.

At worst there may even be a reluctance to seek the advice at all. This
could lead to decisions being made that are legally unsound and that
attract successful legal challenges, which could otherwise have been
avoided. The force's willingness to seek frank legal advice is essential
in upholding the rule of the law.

Efficient and Effective conduct of the service/force.

It is likely that legal advice given in one context will be helpful or
relevant to subsequent issues. This means not only considering the
circumstances in which future legal interests could be prejudiced but also
bearing in mind that the public interest in protecting the confidential
relationship between lawyer and client is a long term public interest
which could be damaged by individual disclosures. The disclosure of legal
advice even when no litigation is in prospect may disadvantage the force
in future litigation. It is quite possible that legal advice in connection
with one department will have wider implications for other departments so
it is important that decisions on disclosure are considered in their full
context

Balancing Test

I have considered this request carefully and am aware that this
information would be of importance to you.

However, whilst the force is accountable for its actions in relation to
investigations undertaken, it is essential that the release of information
does not breach the client - legal professional relationship, a principal
enshrined in history that must be respected

It is my decision; therefore, that in this case the public interest test
balance favours non-disclosure.

This letter represents a refusal for this part of the request.

3. Also if there has been any instruction, memos or directives, whether
formal or informal from the Home Office regarding how to deal with
complaints about BT and Phorm regarding these trials.

REPLY: West Mercia Constabulary has 4000+ employees so it would not be
possible to check with every member of staff if any instructions, memos or
directives had been received. However, I have been advised that there is
no information held by our HQ Registry Department, Criminal Investigations
Department or HQ Command Support team.

Your attention is drawn to the below which details your right of
complaint.

Should you have any further enquiries concerning this matter, please write
or telephone the Information Compliance Unit quoting the reference number
above.

Yours sincerely

Miss R Forrest

Deputy Information Compliance Manager

Information Compliance Unit

Information Management and Technology Department

West Mercia Constabulary

PO Box 55

Hindlip

Worcester

WR3 8SP

01905 331545 / 331565

West Mercia Constabulary in complying with their statutory duty under
sections 1 and 11 of the Freedom of Information Act 2000 to release the
enclosed information will not breach the Copyright, Designs and Patents
Act 1988. However, the rights of the copyright owner of the enclosed
information will continue to be protected by law. Applications for the
copyright owner's written permission to reproduce any part of the attached
information should be addressed to The Force Solicitor, West Mercia
Constabulary Headquarters, PO Box 55, Hindlip, Worcester, WR3 8SP.

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 West Mercia Constabulary (WMC) to review
their decision.

Prior to lodging a formal complaint you are welcome and encouraged to
discuss the decision with the person that dealt with your request.

Ask to have the decision looked at again -

The quickest and easiest way to have the decision looked at again is to
telephone the person named at the end of your decision letter.

That person will be able to discuss the decision, explain any issues and
assist with any problems.

Complaint

If you are dissatisfied with the handling procedures or the decision of
WMC made under the Freedom of Information Act 2000 (the Act) regarding
access to information, you can lodge a complaint with WMC to have the
decision reviewed. WMC must be notified of your intention to complain
within 2 months of the date of its response to your Freedom of Information
request. Complaints should be made in writing and addressed to:

West Mercia Constabulary Headquarters

Professional Standards Department

Hindlip Hall

Hindlip

PO Box 55

Worcester

WR3 8SP

In all possible circumstances, WMC will aim to respond to your complaint
within 2 months.

The Information Commissioner

After lodging a complaint with WMC 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.informationcommissioner.gov.uk
Alternatively, phone or write to:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Phone: 01625 545700

show quoted sections

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