Dear Police Scotland,

GiRFEC, wellbeing, GDPR and Human Rights.

To be clear and for the purposes of this request, wellbeing and welfare are vastly different in law. Welfare is child protection and has a clear, legal threshold for information sharing without consent; wellbeing is at best pertaining to the economic wellbeing of the country (Supreme Court, July 2016) but for the purposes of GiRFEC, wellbeing is happiness within SHANARRI, deemed vague and open to interpretation (Supreme Court, July 2016) and does not meet the threshold for information sharing without consent.

I would be grateful for the following information:

1. How your organisation is prepared for GDPR in relation to GiRFEC, SHANARRI, wellbeing, and all other processing of data at non-child protection level where it does not meet the high threshold of welfare.

2. What legal base you would process subject’s information in relation to GiRFEC, SHANARRI, wellbeing, (to be clear, not welfare), and the reason for the legal base you would use, e.g. if the base would be public interest, please also describe WHY this base would apply.

3. How you will notify each data subject, including 3rd party subject, in advance that you intend to process their GIRFEC, SHANARRI, wellbeing data, (not welfare) by sharing with another organisation.

4. How you intend to offer each data subject, including 3rd party subject, the right to object to processing their GiRFEC, SHANARRI, wellbeing data, (not welfare).

5. If it be the case that subject’s consent is not required, the reasons WHY their consent is not required for processing their GiRFEC, SHANARRI, wellbeing data, (not welfare).

6. In the absence of informed consent, or not meeting one of the aims listed in Article 8, how you will apply the balancing test to comply with Human Rights Article 8 (2) ECHR to GDPR and DPA in processing GiRFEC, SHANARRI, wellbeing data, (non-child protection threshold).
Child protection is an exemption, however, wellbeing does not meet the necessity test, and the promotion of wellbeing is not one of the aims of Article 8 (2), (Para 89, Supreme Court, 2016). Legitimate interest base, for example, would need to be balanced with the 3 part test, including human rights, I request how would you apply this test.

7. A copy of your policy/code of practise for data processing.

8. Copies of your staff training programs in relation to GiRFEC, SHANARRI, wellbeing since;
a). Supreme Court ruling, July 2016.
b). 2013 - Supreme Court ruling, July 2016.

9. Copies of your memorandums to staff regarding updating practise information in relation to GiRFEC, SHANARRI, wellbeing since Supreme Court ruling July 2016.

10. The legal base for processing data through MASH and onto VPD relating to GiRFEC, wellbeing, social history, educational history where this does not meet the welfare threshold of sharing without consent.

Yours faithfully,

V. Colvin

Dear Police Scotland,

I have not received a response to my FOI that you received on 28th May, and under this legislation was due to me by 25th June. I would be grateful for an explanation as to why this is late, and a timescale of when you predict I should have a full response to my FOI.

Yours faithfully,

V. Colvin

Police Scotland

1 Attachment

  • Attachment

    Re Freedom of Information request GiRFEC wellbeing GDPR and Human Rights.txt

    1K Download View as HTML

Please accept this message as confirmation that your request has been
received by Police Scotland and will be dealt with under the terms of the
Freedom of Information (Scotland) Act 2002.

Please note, this mailbox is FOI request only.
Further details are below if you wish to request personal information,
road traffic incident or crime reports, or other non-FOI related
enquiries.

Requesting personal information held by Police Scotland
Applications must be made under GDPR/Data Protection Act 2018. Please
follow this link -
[1]http://www.scotland.police.uk/access-to-...

Road traffic incident or crime report relating to property which has been
damaged and/or stolen
Please click on this link -
[2]http://www.scotland.police.uk/about-us/f....

Non FOI related queries
Please phone 101 or refer to this link -
[3]http://www.scotland.police.uk/contact-us

Kind regards

FOI Team
Police Scotland

References

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3. http://www.scotland.police.uk/contact-us

Police Scotland

1 Attachment

OFFICIAL

Good morning

 

Please find attached the response to your recent FOI request.  Please
accept my apologies for the delay in responding to your request.

 

 

Kind regards

 

Louise Elliot

Lead Disclosure Officer

Information Management

Police Scotland

Fettes Avenue

Edinburgh

EH4 1RB

 

Tel: 0131 311 3757

Email: [email address]

Website: http://www.scotland.police.uk/

Twitter: @policescotland

Facebook: www.facebook.com/policescotland

 

 

Dear Police Scotland,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Police Scotland's handling of my FOI request 'GiRFEC, wellbeing, GDPR and Human Rights'.

Dear Police Scotland,

Thank you for the information provided within my request. I would be grateful for some further information to fully inform me.

My request:
"2. What legal base you would process subject’s information in relation to GiRFEC, SHANARRI, wellbeing, (to be clear, not welfare), and the reason for the legal base you would use, e.g. if the base would be public interest, please also describe WHY this base would apply."

Police response:
"Police Scotland rely on a number of lawful bases for sharing personal information, whilst continuing to comply with the requirement of the new legislation. This includes provision within Section 32 of Police and Fire Reform which outlines the purpose of policing in Scotland as being ‘to improve the safety and well-being of persons, localities and communities’.

Public Task “The processing is necessary for you to perform a task in the public interest or for your official functions; the task has a clear basis in law”

This will be used for the sharing of wellbeing concerns for Children with statutory agencies. The clear basis in law referred to in Public Task is:

Section 32 – Police and Fire Reform (S) Act 2012 – Main purpose of policing is to improve the safety and well-being of persons, localities and communities in Scotland.

It must be clear that it is necessary, proportionate, justified and relevant to do so and must be balanced with individual’s Human Rights – Article 8 ECHR: right to a private and family life, the Duty of Confidentiality and individual’s views.

In addition to the above lawful basis for processing, where Police Scotland wishes to share ‘special category’ information e.g. race, religion, ethnicity, health, sexual orientation with statutory partners, Police Scotland will adopt either of the following additional processing conditions where sharing is likely to be necessary for that purpose;

Article 9(h) – Provision of Health or Social Care or; Article 9(g) - Substantial Public Interest (Schedule 1, part 2, paragraph 6 - Statutory purpose).

Police Scotland rely on the following processing conditions for the sharing of wellbeing concerns with non-statutory bodies;

Lawful Processing Condition - Article 6(1)(a) – Consent

In addition to the above lawful basis for processing, where Police Scotland wishes to share ‘special category’ information e.g. race, religion, ethnicity, health, sexual orientation with statutory partners, Police Scotland will adopt the following additional processing condition;

Article 9(2)(a) – Explicit Consent"

My response:
You have referred directly to Police and Fire Reform Act Scotland (2012), Section 32, "...to improve the safety and wellbeing of persons,..." as being the lawful basis in relation to Public Task legal base for processing GiRFEC, SHANARRI, wellbeing data at lower than the current lawful threshold of risk of significant harm.

I would be grateful for the definition of wellbeing at this date of Police and Fire Reform Act Scotland (2012), Section 32, and any subsequent changes to the definition of wellbeing, given that the Supreme Court ruled that "“Wellbeing” is not defined. The only guidance as to its meaning is provided by section 96(2), which lists eight factors to which regard is to be had when assessing wellbeing. The factors, which are known under the acronym SHANARRI, are that the child or young person is or would be: “safe, healthy, achieving, nurtured, active, respected, responsible, and included”. These factors are not themselves defined, and in some cases are notably vague" (Para 16, Supreme Court, July 2016), and are open to subjective interpretation based on state outcomes.

With reference to Police and Fire Reform Act Scotland (2012), Section 32,
"Policing principles
The policing principles are—
(a)
that the main purpose of policing is to improve the safety and well-being of persons, localities and communities in Scotland, and
(b)
that the Police Service, working in collaboration with others where appropriate, should seek to achieve that main purpose by policing in a way which—
(i)
is accessible to, and engaged with, local communities, and
(ii)
promotes measures to prevent crime, harm and disorder."

Section 32 is limited by overarching laws:

ECHR Article 8(2)
"Right to respect for private and family life
1
Everyone has the right to respect for his private and family life, his home and his correspondence.
2
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Local Government Scotland Act (2003) Section 22
"Limits on power under section 20, Power to advance wellbeing.
(1)
The power under section 20 above does not enable a local authority to do anything which it is, by virtue of a limiting provision, unable to do.
(2)
In subsection (1) above, a “limiting provision” is one which—
(a)
prohibits or prevents the local authority from doing anything or limits its powers in that respect; and
(b)
is expressed in an enactment (whenever passed or made)."

And the Supreme Court Ruling on Named Person
"The promotion of the wellbeing of children and young people is not, however, one of the aims listed in article 8(2) of the ECHR. At the most general level, it can be said to be linked to the economic wellbeing of the country,...", (Para 89, Supreme Court, July 2016), meaning that there is a duty to improve services to support and enhance general wellbeing, however, any action on personal wellbeing is unlawful as this would constitute an interference in family and private life, contravening ECHR Article 8(2).

My request:
"3. How you will notify each data subject, including 3rd party subject, in advance that you intend to process their GIRFEC, SHANARRI, wellbeing data, (not welfare) by sharing with another organisation."

Police response:
"Where officers attend an incident where there is a requirement to record data on the interim Vulnerable Persons Database (iVPD), all individuals are informed that information from a specific incident WILL be recorded and assessed on police systems and Police Scotland MAY share relevant information at the time of the incident. Similar to previous legislation, there will be occasions where exemptions exists in relation to notification, namely the prevention/detection of crime or where there is a serious identifiable risk of harm to the data subject."

My response:
I would be grateful for clarification of what the requirements are for recording data on the interim Vulnerable Persons Database.
You have stated that all individuals are informed that their information WILL be recorded, which implies there is no choice. GDPR Article 21 allows subjects to object to this.
"Art. 21 GDPR
Right to object
1The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. 2The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims." (GDPR-info. 2018)
You have provided the basis for processing subject's information as Public Task Article 6(1)(e). How would a subject object when you state you WILL record their information on iVPD?

I would be very grateful for this further information as being related to a full understanding to your responses to my request.

I look forward to hearing from you.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/g...

Yours faithfully,

V. Colvin

Police Scotland

1 Attachment

  • Attachment

    Internal review of Freedom of Information request GiRFEC wellbeing GDPR and Human Rights.txt

    9K Download View as HTML

Please accept this message as confirmation that your request has been
received by Police Scotland and will be dealt with under the terms of the
Freedom of Information (Scotland) Act 2002.

Please note, this mailbox is FOI request only.
Further details are below if you wish to request personal information,
road traffic incident or crime reports, or other non-FOI related
enquiries.

Requesting personal information held by Police Scotland
Applications must be made under GDPR/Data Protection Act 2018. Please
follow this link -
[1]http://www.scotland.police.uk/access-to-...

Road traffic incident or crime report relating to property which has been
damaged and/or stolen
Please click on this link -
[2]http://www.scotland.police.uk/about-us/f....

Non FOI related queries
Please phone 101 or refer to this link -
[3]http://www.scotland.police.uk/contact-us

Kind regards

FOI Team
Police Scotland

References

Visible links
1. http://www.scotland.police.uk/access-to-...
2. http://www.scotland.police.uk/about-us/f...
3. http://www.scotland.police.uk/contact-us

Police Scotland

OFFICIAL

Dear V. Colvin

I refer to your email below, seeking an internal review of a recent Freedom of Information response.

Having read your points raised below, it would appear these are additional follow-up questions based on the response issued by Police Scotland. Therefore, it is suggested with your permission, that I close-off the internal review element and treat your questions as clarity points.

Basically, under the legislation I can only review the questions posed in your original email; the points listed below appear as new questions or clarification being sought, of which I am unable to review.

It would be appreciated if you could advise if you are content with this approach.

A response will be issued in due course.

Regards

Paul Wallace
Lead Disclosure Officer - East
Information Management Unit
Police Scotland
Fettes Avenue
Edinburgh
EH4 1RB

Tel: 0131 311 3785

Website:  www.scotland.police.uk
Twitter:  @policescotland
Facebook:  www.facebook.com/policescotland

show quoted sections

Dear Paul Wallace,

Thank you for your response.

I am happy for you to close the request for internal review aspect and proceed as further information and clarification sought for the Police response https://www.whatdotheyknow.com/request/g...
to my original request https://www.whatdotheyknow.com/request/g...

I look for to receiving your response.

Yours sincerely,

V. Colvin

Police Scotland

1 Attachment

Please accept this message as confirmation that your request has been
received by Police Scotland and will be dealt with under the terms of the
Freedom of Information (Scotland) Act 2002.

Please note, this mailbox is FOI request only.
Further details are below if you wish to request personal information,
road traffic incident or crime reports, or other non-FOI related
enquiries.

Requesting personal information held by Police Scotland
Applications must be made under GDPR/Data Protection Act 2018. Please
follow this link -
[1]http://www.scotland.police.uk/access-to-...

Road traffic incident or crime report relating to property which has been
damaged and/or stolen
Please click on this link -
[2]http://www.scotland.police.uk/about-us/f....

Non FOI related queries
Please phone 101 or refer to this link -
[3]http://www.scotland.police.uk/contact-us

Kind regards

FOI Team
Police Scotland

References

Visible links
1. http://www.scotland.police.uk/access-to-...
2. http://www.scotland.police.uk/about-us/f...
3. http://www.scotland.police.uk/contact-us

FOI, Police Scotland

OFFICIAL
Hi Paul

Please see the email below that we received in the FOI Scotland inbox.

Regards

Dawn

Dawn McCrea
Lead Disclosure Officer
Information Management
Police Scotland
2 French Street
Dalmarnock
Glasgow
G40 4EH

Tel: 01786895867

Email: [email address]
Website: www.scotland.police.uk
Twitter: @policescotland
Facebook: www.facebook.com/policescotland

show quoted sections

Police Scotland

OFFICIAL
Dear V.Colvin,

I write in connect to my previous email of 30 July 2018, to which I appear not to have received a response.

It would be appreciated if you could confirm that you are content for your review request to be closed-off / withdrawn.

Your additional questions remain in progress and can be responded to relative soon.

I am unable to progress further until I receive communication from you on this matter.

Regards

Paul Wallace
Lead Disclosure Officer - East
Information Management Unit
Police Scotland
Fettes Avenue
Edinburgh
EH4 1RB

Tel: 0131 311 3785

Website:  www.scotland.police.uk
Twitter:  @policescotland
Facebook:  www.facebook.com/policescotland

show quoted sections

Dear Paul Wallace,

Thank you for your response today. Please refer to my response to you dated 30th July, which was received, confirmed and forwarded to you by your colleague Dawn McCrea on same day.

‘I am happy for you to close the request for internal review aspect and proceed as further information and clarification sought...’ with links to further information sought and my original request inserted respectively.

https://www.whatdotheyknow.com/request/g...

Many thanks.

I look forward to receiving your response.

Yours faithfully,

V. Colvin

Police Scotland

1 Attachment

Please accept this message as confirmation that your request has been
received by Police Scotland and will be dealt with under the terms of the
Freedom of Information (Scotland) Act 2002.

Please note, this mailbox is FOI request only.
Further details are below if you wish to request personal information,
road traffic incident or crime reports, or other non-FOI related
enquiries.

Requesting personal information held by Police Scotland
Applications must be made under GDPR/Data Protection Act 2018. Please
follow this link -
[1]http://www.scotland.police.uk/access-to-...

Road traffic incident or crime report relating to property which has been
damaged and/or stolen
Please click on this link -
[2]http://www.scotland.police.uk/about-us/f....

Non FOI related queries
Please phone 101 or refer to this link -
[3]http://www.scotland.police.uk/contact-us

Kind regards

FOI Team
Police Scotland

References

Visible links
1. http://www.scotland.police.uk/access-to-...
2. http://www.scotland.police.uk/about-us/f...
3. http://www.scotland.police.uk/contact-us

Police Scotland

1 Attachment

OFFICIAL

Good afternoon

 

Please find attached the response to your recent FOI request. 

 

Kind regards

 

Louise Elliot

Lead Disclosure Officer

Information Management

Police Scotland

Fettes Avenue

Edinburgh

EH4 1RB

 

Tel: 0131 311 3757

Email: [email address]

Website: http://www.scotland.police.uk/

Twitter: @policescotland

Facebook: www.facebook.com/policescotland

 

 

Dear Police Scotland,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Police Scotland's handling of my FOI request 'GiRFEC, wellbeing, GDPR and Human Rights' and specifically to the further clarification I sought to Police response points 2 and 3 A’s these remain unanswered. I would be grateful for a review of those.

From my original request point 2 and further clarification sought, I specifically requested the definition of ‘wellbeing’ at the time the Police and Fire Reform Act Scotland (2012), Section 32, came into force, and any changes thereafter to the definition of wellbeing, and this had gone unanswered; my request was to bear in mind overarching laws and Supreme Court ruling, detailed below;

“My response:
You have referred directly to Police and Fire Reform Act Scotland (2012), Section 32, "...to improve the safety and wellbeing of persons,..." as being the lawful basis in relation to Public Task legal base for processing GiRFEC, SHANARRI, wellbeing data at lower than the current lawful threshold of risk of significant harm.

I would be grateful for the definition of wellbeing at this date of Police and Fire Reform Act Scotland (2012), Section 32, and any subsequent changes to the definition of wellbeing, given that the Supreme Court ruled that "“Wellbeing” is not defined. The only guidance as to its meaning is provided by section 96(2), which lists eight factors to which regard is to be had when assessing wellbeing. The factors, which are known under the acronym SHANARRI, are that the child or young person is or would be: “safe, healthy, achieving, nurtured, active, respected, responsible, and included”. These factors are not themselves defined, and in some cases are notably vague" (Para 16, Supreme Court, July 2016), and are open to subjective interpretation based on state outcomes.

With reference to Police and Fire Reform Act Scotland (2012), Section 32,
"Policing principles
The policing principles are—
(a)
that the main purpose of policing is to improve the safety and well-being of persons, localities and communities in Scotland, and
(b)
that the Police Service, working in collaboration with others where appropriate, should seek to achieve that main purpose by policing in a way which—
(i)
is accessible to, and engaged with, local communities, and
(ii)
promotes measures to prevent crime, harm and disorder."

Section 32 is limited by overarching laws:

ECHR Article 8(2)
"Right to respect for private and family life
1
Everyone has the right to respect for his private and family life, his home and his correspondence.
2
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Local Government Scotland Act (2003) Section 22
"Limits on power under section 20, Power to advance wellbeing.
(1)
The power under section 20 above does not enable a local authority to do anything which it is, by virtue of a limiting provision, unable to do.
(2)
In subsection (1) above, a “limiting provision” is one which—
(a)
prohibits or prevents the local authority from doing anything or limits its powers in that respect; and
(b)
is expressed in an enactment (whenever passed or made)."

And the Supreme Court Ruling on Named Person
"The promotion of the wellbeing of children and young people is not, however, one of the aims listed in article 8(2) of the ECHR. At the most general level, it can be said to be linked to the economic wellbeing of the country,...", (Para 89, Supreme Court, July 2016), meaning that there is a duty to improve services to support and enhance general wellbeing, however, any action on personal wellbeing is unlawful as this would constitute an interference in family and private life, contravening ECHR Article 8(2).”

—————————————————————————————————————————————————————————

Regarding Police response to my original request point 3, your response stated ‘where there is a requirement’, and I sought further clarification as to what the requirements would be , this remains unanswered;

“My request:
"3. How you will notify each data subject, including 3rd party subject, in advance that you intend to process their GIRFEC, SHANARRI, wellbeing data, (not welfare) by sharing with another organisation."

Police response:
"Where officers attend an incident where there is a requirement to record data on the interim Vulnerable Persons Database (iVPD), all individuals are informed that information from a specific incident WILL be recorded and assessed on police systems and Police Scotland MAY share relevant information at the time of the incident. Similar to previous legislation, there will be occasions where exemptions exists in relation to notification, namely the prevention/detection of crime or where there is a serious identifiable risk of harm to the data subject."

My response:
I would be grateful for clarification of what the requirements are for recording data on the interim Vulnerable Persons Database.”

I would be grateful for the clarifications I sought in relation to the above Police responses that I was informed I would have a response to here, https://www.whatdotheyknow.com/request/g...

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/g...

Yours faithfully,

V. Colvin

Police Scotland

1 Attachment

  • Attachment

    Internal review of Freedom of Information request GiRFEC wellbeing GDPR and Human Rights.txt

    6K Download View as HTML

Please accept this message as confirmation that your request has been
received by Police Scotland and will be dealt with under the terms of the
Freedom of Information (Scotland) Act 2002.

Please note, this mailbox is FOI request only.
Further details are below if you wish to request personal information,
road traffic incident or crime reports, or other non-FOI related
enquiries.

Requesting personal information held by Police Scotland
Applications must be made under GDPR/Data Protection Act 2018. Please
follow this link -
[1]http://www.scotland.police.uk/access-to-...

Road traffic incident or crime report relating to property which has been
damaged and/or stolen
Please click on this link -
[2]http://www.scotland.police.uk/about-us/f....

Non FOI related queries
Please phone 101 or refer to this link -
[3]http://www.scotland.police.uk/contact-us

Kind regards

FOI Team
Police Scotland

References

Visible links
1. http://www.scotland.police.uk/access-to-...
2. http://www.scotland.police.uk/about-us/f...
3. http://www.scotland.police.uk/contact-us

Police Scotland

1 Attachment

OFFICIAL
Dear V. Colvin,

Please find attached my review response to a recent FOI request.

Regards

Paul Wallace
Lead Disclosure Officer - East
Information Management Unit
Police Scotland
Fettes Avenue
Edinburgh
EH4 1RB

Tel: 0131 311 3785

Website:  www.scotland.police.uk
Twitter:  @policescotland
Facebook:  www.facebook.com/policescotland

show quoted sections

Dear Police Scotland,

I cannot see a response to my questions:

1) the definition of ‘wellbeing’ in the Police and Fire Reform Act 2012 at the time it was written, and any subsequent changes to the definition, including dates, taking into consideration contents of my previous email in relation to overarching laws etc, and

2) the ‘requirement’ (as stated in your original response) for individuals to be added to the VPD and how they can object PRIOR to their data being recorded on VPD, taking into consideration GDPR Article 21.

I look forward to hearing from you.

Yours faithfully,

V. Colvin

Police Scotland

1 Attachment

  • Attachment

    Internal review of Freedom of Information request GiRFEC wellbeing GDPR and Human Rights.txt

    2K Download View as HTML

Please accept this message as confirmation that your request has been
received by Police Scotland and will be dealt with under the terms of the
Freedom of Information (Scotland) Act 2002.

Please note, this mailbox is FOI request only.
Further details are below if you wish to request personal information,
road traffic incident or crime reports, or other non-FOI related
enquiries.

Requesting personal information held by Police Scotland
Applications must be made under GDPR/Data Protection Act 2018. Please
follow this link -
[1]http://www.scotland.police.uk/access-to-...

Road traffic incident or crime report relating to property which has been
damaged and/or stolen
Please click on this link -
[2]http://www.scotland.police.uk/about-us/f....

Non FOI related queries
Please phone 101 or refer to this link -
[3]http://www.scotland.police.uk/contact-us

Kind regards

FOI Team
Police Scotland

References

Visible links
1. http://www.scotland.police.uk/access-to-...
2. http://www.scotland.police.uk/about-us/f...
3. http://www.scotland.police.uk/contact-us

Police Scotland

1 Attachment

OFFICIAL
Dear V. Colvin,

Please find attached my review response to a recent FOI request.

Paul Wallace
Lead Disclosure Officer - East
Information Management Unit
Police Scotland
Fettes Avenue
Edinburgh
EH4 1RB

Tel: 0131 311 3785

Website:  www.scotland.police.uk
Twitter:  @policescotland
Facebook:  www.facebook.com/policescotland

show quoted sections

Dear Police Scotland,

Thank you for your email. My questions do not directly refer to legal statute and wording from the Supreme Court, they refer to the Police and Fire Reform Act 2012, around four years prior to Supreme Court ruling.

My question remains unanswered;
I have asked for the definition of wellbeing in the Police and Fire Reform Act 2012 ‘at the time it was written’. Given this was written around four years prior to the Supreme Court ruling (2016), and 1 year prior to ICO unlawful advice (2013) surrounding processing wellbeing in relation to GiRFEC which was later retracted (2016), I would not expect you to refer to either but I would be grateful if you would answer this part of my question, ‘what was the definition of wellbeing in the Police and Fire Reform Act 2012 when it was written?’.

In addition I have asked for any changes to your (Police Scotland’s) original definition of wellbeing, i.e.

a) any subsequent changes made after 2012 due to the implementation of GiRFEC between 2013 and 2016, and

b) any further changes made post Supreme Court ruling, from 28th July 2016 to present, considering any reference to ECHR Article 8, right to a private life at lower than current child protection threshold, any reference to GDPR Article 21 which allows subjects to object to their data being processed prior to processing (i.e. informed consent based) at lower than current child protection threshold, any reference to UNCRC Article 16 Children’s right to privacy where there are no ‘child protection’ (as opposed to wellbeing) concerns, and any reference to Section 22 Local Government Act which limits any powers over wellbeing.

Given that a requirement for entry onto the iVPD would be a ‘risk to wellbeing’, it is important that the public understand your definition of wellbeing, and I would expect Police Scotland Officers to understand the definition of wellbeing for it to be entered on iVPD, therefore I believe you must hold this information, it must be recorded, that Police Officers may understand what constitutes a ‘risk to wellbeing’.

All domestic legislation is subject to the limitations of ECHR and GDPR and the lack of a precise definition in law means that 'wellbeing' lacks accessibility and foreseeability required by those who experience arbitrary interference in its absence.
There must be justification for interference with Article 8 and GDPR rights, based on a proportionality assessment in each and every case, with evidence recorded to justify any infringement.

My original request for clarification;
“1) the definition of ‘wellbeing’ in the Police and Fire Reform Act 2012 at the time it was written, and any subsequent changes to the definition, including dates, taking into consideration contents of my previous email in relation to overarching laws etc,”

Your response;
“I note you have sought the definition of wellbeing within the Police and Fire Reform (Scotland) Act 2012, given the Supreme Court ruling. However, I should point out that the Freedom of Information (Scotland) Act refers to the provision of recorded information held by a public authority. It appears your question refers to the interpretation of the legal statute and wording from the Supreme Court, which I am unable to review or comment further.”

I would be very grateful for the original definition of wellbeing in PFR Act 2012, and any later changes to this definition.

I look forward to hearing from you.

Yours faithfully,

V. Colvin

Police Scotland

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    Internal review of Freedom of Information request GiRFEC wellbeing GDPR and Human Rights.txt

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Please accept this message as confirmation that your request has been
received by Police Scotland and will be dealt with under the terms of the
Freedom of Information (Scotland) Act 2002.

Please note, this mailbox is FOI request only.
Further details are below if you wish to request personal information,
road traffic incident or crime reports, or other non-FOI related
enquiries.

Requesting personal information held by Police Scotland
Applications must be made under GDPR/Data Protection Act 2018. Please
follow this link -
[1]http://www.scotland.police.uk/access-to-...

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damaged and/or stolen
Please click on this link -
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[3]http://www.scotland.police.uk/contact-us

Kind regards

FOI Team
Police Scotland

References

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Police Scotland

OFFICIAL
Dear Sir / Madam,

I refer to your email below.

As you have exercised your right to an internal review, I am unable to assist further.

As per my review response dated 17 September 2018, I believe I have already addressed your request in that I am unable to comment on the legal definition. As stated within my response, if you remain dissatisfied following the review, you have the right to appeal directly to the Scottish Information Commissioner. Their contact details were also provided, however, for ease their email address is; [email address]
Alternatively, an online service is available at; www.itspublicknowledge.info/appeal

Unfortunately, on this occasion I am unable to offer additional assistance.

Regards

Paul Wallace
Lead Disclosure Officer - East
Information Management Unit
Police Scotland
Fettes Avenue
Edinburgh
EH4 1RB

Tel: 0131 311 3785

Website:  www.scotland.police.uk
Twitter:  @policescotland
Facebook:  www.facebook.com/policescotland

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