Investigation carried out on behalf of PSNI

The request was partially successful.

Dear Durham Constabulary ("Durham"),

On 31st August, 2018, Durham issued this press release:

https://www.durham.police.uk/news-and-ev...

Please disclose the following by way of the Freedom of Information Act (FOIA):

1. Copy of the terms of reference.

2. Copies of all Durham internal correspondence, minutes, briefing notes, orders PRIOR to formal acceptance of the terms of reference and commencement of the investigation.

3. Copies of all correspondence between Durham and Police Service of Northern Ireland (PSNI) PRIOR to investigation commencing.

4. Name and rank of the senior officer signing off the press release.

5. Copy of the entry in that officer's day book, or notebook, or similar, referring to this press release.

6. Copies of all internal emails relating to this press release.

On 8th November, 2018 the Office of the Police Ombudsman for Northern Ireland (OPONI) issued a statement that ran contrary to the 31st August statement issued by Durham. That is to say, no complaint had been made by OPONI regarding alleged theft of documents.

Please disclose the following by way of FOIA:

7. Copies of all correspondence between Durham and OPONI relating to the existence, or otherwise, of the subject complaint.

8. Copies of all internal emails relating to the statement issued by Chief Constable Barton, soon afterwards, defending the position of Durham and asserting that there was a theft complaint made by OPONI, upon which the grotesquely disproportionate and, in the event, unlawful arrest of two of my fellow journalists was grounded.

Yours faithfully,

Neil Wilby
Investigative journalists

Twitter: @Neil_Wilby
Web: neilwilby.com

Freedom of Information, Durham Constabulary

Your request has been received by Durham Constabulary's Information Rights
& Disclosure Unit and will be actioned accordingly. If you have any
queries please contact 0191 375 2596 Mondays to Fridays between the hours
of 7.45am and 5pm.

DURHAM CONSTABULARY, Protecting Neighbourhoods, Tackling Criminals,
Solving Problems…Around the Clock

NEIGHBOURHOOD POLICING: Use your postcode to get access to local news and
events from your Neighbourhood Policing Team, at
https://www.durham.police.uk

This email carries a disclaimer, a copy of which may be read at
https://www.durham.police.uk/Pages/E-Mai...

Dear Durham Constabulary,

I am writing to request an internal review of Durham Constabulary's handling of my FOI request 'Investigation carried out on behalf of PSNI'.

The request should have been finalised on or before 1st July, 2019 in order to comply with section 10 of the Act.

No section 17 refusal notice has been issued.

The failure to provide a response, or communicate effectively, places the Head of Department for Information Rights in breach of the College of Policing's Authorised Professional Practice (APP). In turn, APP is embedded in the College's Code of Ethics. Taken at their face, the failures engage the Code under neglect of duty and respect, courtesy.

Given that the applicant in the instant request is both an accredited journalist, and experienced information rights practitioner, the approach of the your force is, not for the first time, disappointing, to say the least. A law enforcement agency that it treats its statutory obligations so casually will quickly see public confidence in it erode. Particularly, when the requested information is readily retrievable, and should pose no foreseeable difficulties in preparing for disclosure. It also lends furher weight to the oft-repeated Durham Constabulary strapline: "A grubby little police force".

Accordingly, it is hoped that the matters outlined above can be satisfactorily explained and quickly remedied. In order to further assist public understanding of a policing body deliberately breaking the law, please disclose, as part of the internal review finalisation, all internal and external correspondence relating to this freedom of information request, up to and including 2nd July, 2019.

Finally, all rights concerning a section 77 complaint to the Information Commisssioner's Office are also reserved.

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

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

Freedom of Information, Durham Constabulary

Good afternoon,

Durham Constabulary apologises for the delay in replying to the request received on 03/06/2019.

The request has been transferred to Police Service Northern Ireland. The basis for this decision is that Durham Constabulary was requested by Police Service Northern Ireland to assist in an investigation under Section 98(1) of the Police Act 1996:
S98 Cross-border aid of one police force by another
(1) The chief officer of a police force in England and Wales may, on the application of the chief officer in Scotland or the chief constable of the Police Service Northern Ireland, provide constables or other assistance for the purpose of enabling the Scottish force or the Police Service Northern Ireland to meet any special demand on its resources.

Any information in relation to the investigation that may be held by Durham Constabulary is under Section 3 (2) of the Freedom of Information Act 2000 on behalf of Police Service Northern Ireland.
S3 (2) Public Authorities:
(2) For the purpose of this Act, information is held by a public authority if
(a) it is held by the authority, otherwise than on behalf of another person, or
(b) it is held by another person on behalf of the authority

It is therefore the responsibility of Police Service Northern Ireland to respond to your request as promptly as possible within their legislative obligations.

Information Rights and Disclosure Unit
Business Innovation & Development Command
Durham Constabulary
Police Headquarters
Aykley Heads
Durham DH1 5TT

“Delivering excellent policing, inspiring confidence in victims and our communities, by:
Protecting Neighbourhoods
Tackling Criminals
Solving Problems …Around the clock” ‘Integrity instils confidence’

show quoted sections

Durham Constabulary

This e-mail has been marked OFFICIAL [PUBLIC];

3rd July 2019

Dear Mr. Wilby ,

FREEDOM of INFORMATION ACT 2000

Thank you for your request which has been passed to us by Durham
Constabulary.

 

Under section 98 of the Police Act 1996 Durham are assisting PSNI with the
investigation into the suspected theft of materials held by the Office of
the Police Ombudsman.  Under section 3 (2) of the Freedom of information
Act 2000 Durham hold material relating to this investigation on PSNI’s
behalf and PSNI is therefore responsible for responding to your request.
In the processing of your request PSNI may seek information from Durham.

 

We apologise that we will be unable to meet the required legislative
timeframes required under section 10 of the FOI Act , i.e. to have issued
a response to you promptly or in any event within 20 working days.

 

We will however be responding to you as quickly as we can and I have been
assigned to process your request.

 

I will be  in touch with you shortly.

 

If you have any queries regarding your request please write or contact the
Freedom of Information Team on 028 9070 0164. Please remember to quote the
reference number listed above in any future communications with the
Freedom of Information Team.

If you are dissatisfied in any way with the handling of your request, you
have the right to request a review. You should do this as soon as
possible, or in any case within two months of the date of issue of this
letter. In the event that you require a review to be undertaken, you can
do so by writing to the Head of Freedom of Information, PSNI Headquarters,
65 Knock Road, Belfast, BT5 6LE or by emailing [email address]. 

If following an internal review, carried out by an independent decision
maker, you were to remain dissatisfied in any way with the handling of the
request you may make a complaint, under Section 50 of the Freedom of
Information Act, to the Information Commissioner’s Office and ask that
they investigate whether the PSNI has complied with the terms of the
Freedom of Information Act.  You can write to the Information Commissioner
at Information Commissioner’s Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF. In most circumstances the Information
Commissioner will not investigate a complaint unless an internal review
procedure has been carried out, however the Commissioner has the option to
investigate the matter at his discretion.

Yours sincerely,

Jane
FOI Decision Maker
FOI Unit
PSNI HQ Brooklyn

show quoted sections

Dear Durham Constabulary,

Receipt of your communication of even date is acknowledged.

Your decision to transfer the request to PSNI is, in my respectful submission, (i) misconceived (ii) a ruse to frustrate disclosure.

Accordingly, a complaint has been lodged with the Information Commissioner's Office.

They will, no doubt, be in touch with you in due course.

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

Durham Constabulary

This e-mail has been marked OFFICIAL [PUBLIC];

3rd July 2019

Dear Mr. Wilby ,

FREEDOM of INFORMATION ACT 2000

PSNI  have also noted you have submitted an internal review which we
acknowledge receipt of.

 

Under section 98 of the Police Act 1996 Durham are assisting PSNI with the
investigation into the suspected theft of materials held by the Office of
the Police Ombudsman. Under section 3 (2) of the Freedom of information
Act 2000 Durham hold material relating to this investigation on PSNI’s
behalf and PSNI is therefore responsible for responding to your request.
In the processing of your request PSNI may seek information from Durham.

 

We apologise that we will be unable to meet the required legislative
timeframes required under section 10 of the FOI Act , i.e. to have issued
a response to you promptly or in any event within 20 working days.

 

We will however be responding to you as quickly as we can and I have been
assigned to process your request.

If you have any queries regarding your request please write or contact the
Freedom of Information Team on 028 9070 0164. Please remember to quote the
reference number listed above in any future communications with the
Freedom of Information Team.

If you are dissatisfied in any way with the handling of your request, you
have the right to request a review. You should do this as soon as
possible, or in any case within two months of the date of issue of this
letter. In the event that you require a review to be undertaken, you can
do so by writing to the Head of Freedom of Information, PSNI Headquarters,
65 Knock Road, Belfast, BT5 6LE or by emailing [email address].

If following an internal review, carried out by an independent decision
maker, you were to remain dissatisfied in any way with the handling of the
request you may make a complaint, under Section 50 of the Freedom of
Information Act, to the Information Commissioner’s Office and ask that
they investigate whether the PSNI has complied with the terms of the
Freedom of Information Act. You can write to the Information Commissioner
at Information Commissioner’s Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF. In most circumstances the Information
Commissioner will not investigate a complaint unless an internal review
procedure has been carried out, however the Commissioner has the option to
investigate the matter at his discretion.

Yours sincerely,

Jane
FOI Decision Maker
FOI Unit
PSNI HQ Brooklyn

 

show quoted sections

Dear Durham Constabulary,

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

I am writing to request an internal review of Durham Constabulary's handling of my FOI request 'Investigation carried out on behalf of PSNI.

The Information Commissioner has ruled that she cannot investigate the transfer of the request without the internal review process being exhausted.

Accordingly, my complaints are these:

1. Breach of sections 10 and 17 of the Act.

2. The grounds for transferring the request are an artifice.

3. I still require the requested information from Durham. It is may well differ from what is held by PSNI.

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

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

Freedom of Information, Durham Constabulary

Your request has been received by Durham Constabulary's Information Rights
& Disclosure Unit and will be actioned accordingly. If you have any
queries please contact 0191 375 2596 Mondays to Fridays between the hours
of 7.45am and 5pm.

DURHAM CONSTABULARY, Protecting Neighbourhoods, Tackling Criminals,
Solving Problems…Around the Clock

NEIGHBOURHOOD POLICING: Use your postcode to get access to local news and
events from your Neighbourhood Policing Team, at
https://www.durham.police.uk

This email carries a disclaimer, a copy of which may be read at
https://www.durham.police.uk/Pages/E-Mai...

Dear Durham Constabulary,

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

I am writing to request an internal review of PSNI's handling of my FOI request 'Investigation carried out on behalf of PSNI'.

This request for internal review is without prejudice to my essential position of maintaining that the request should be finalised by Durham and not PSNI.

Grounds for complaint:

1. Breach of section 10 of the Act.

2. Breach of section 17 of the Act

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

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

Durham Constabulary

This e-mail has been marked OFFICIAL [PUBLIC];

Mr Wilby

In reply to your email dated 5th August 2019 requesting an internal review , firstly please accept our apologises for the delay in your response.

Unfortunately at this stage I am unable to provide a specific time scale of when your substantive FOI response will be issued by PSN.

However as previously outlined to you on our email dated 5th July 2019 , I can advise that PSNI are progressing your request.

Your patience in this matter is appreciated.

Jane
Corporate Information Branch
PSNI

show quoted sections

Dear Durham Constabulary,

I refer to the message from "Jane at PSNI". Please share this WDTK post with her.

My patience is, actually, exhausted. I'm weary. Vexed and harassed by two police forces simultaneously.

However, nothwithstanding the foregoing and for the avoidance of doubt, my original position is maintained: The request to Durham should be finalised by Durham (not PSNI). The reasons given for transferring the request do not bear close scrutiny and are simply and artifice to avoid disclosure.

The ICO are already seized of the matter, but require me to exhaust the internal complaints process first. The perception is that the 'Ring of Steel' referred to in this news article is unlawfully preventing further disclosures concerning Darren Ellis. The behaviour of Durham Constabularly, at an alarming frequency, demonstrates a quite scary disregard for Parliament (PACE, CIPA, DPA [and probably RIPA], FOIA, PRA etc etc):

http://neilwilby.com/2019/08/09/another-...

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

Durham Constabulary

2 Attachments

This e-mail has been marked OFFICIAL [PUBLIC];

Subject: FOI-2019-01630
20^th September 2019

Dear Mr. Wilby ,

FREEDOM of INFORMATION ACT 2000

I write in connection with your request for information which transferred
to the Police Service of Northern Ireland from Durham Constabulary
concerning:

Durham / PSNI Investigation Birney and McCaffrey

Please find attached the response to your request and accept our
apologises for the delay.

 

Yours sincerely,

Jane
FOI Decision Maker
Corporate Information Branch
PSNI HQ Brooklyn

show quoted sections

Dear Durham Constabulary,

Please pass this onto the Corporate Information Branch at PSNI HQ. It concerns a communication they made on 20th September, 2019.

1. My inalienable position is that the FOIA request made to Durham should not have been transferred to Durham. That has been communicated to the ICO and I'm prepared to test the matter, ultimately, before a Tribunal.

2. PSNI have helpfully disclosed materials that are clearly held by Durham. That assists the argument at para 1 above. More crucially, it reveals that the decision to transfer the request was dishonestly grounded. The complaint lodged some time time ago with the ICO concerning this information request will now be elevated to one grounded in Section 77 of the Act.

3. As a journalist, there is a thread running through all my dealings with Durham Constabulary. Whether it is through the gateway of press office enquiries, data subject access, freedom of information requests, police complaints: Persistent lawbreaking and/or a flagrant disregard for the College of Policing's Code of Ethics. That, on any level, is seriously troubling and will form part of my background submissions to the section 77 prosecution.

Yours faithfully,

Neil Wilby
Investigative Journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

Freedom of Information, Durham Constabulary

Good afternoon Mr Wilby

Further to your email below I can confirm your email has been sent to PSNI as requested.

Kind regards

Information Rights and Disclosure Unit
Business Innovation & Development Command
Durham Constabulary
Police Headquarters
Aykley Heads
Durham DH1 5TT

“Delivering excellent policing, inspiring confidence in victims and our communities, by:
Protecting Neighbourhoods
Tackling Criminals
Solving Problems …Around the clock” ‘Integrity instils confidence’

show quoted sections

Durham Constabulary

This e-mail has been marked OFFICIAL [PUBLIC];

Subject: FOI-2019-01630
26th September 2019

Dear Mr. Wilby ,

FREEDOM of INFORMATION ACT 2000

I acknowledge receipt of your correspondence that has been transferred
from Durham Constabulary to the Police Service of Northern Ireland
requesting to review the response to your request for information
concerning:

Durham / PSNI Investigation Birney and McCaffrey

An internal review will be conducted in accordance with Police Service of
Northern Ireland's review procedure.

In accordance with the Freedom of Information Act 2000 an independent
decision maker will carry out a review of this case and advise you in
writing of the outcome.

If you wish to discuss this matter prior to receiving a response please
contact me on 028 9070 0164.  Please remember to quote the reference
number above in any future communications.

If following an internal review you were to remain dissatisfied in any way
with the handling of the request you may make a complaint to the
Information Commissioner’s Office and ask that they investigate whether
the PSNI has complied with the terms of the Freedom of Information Act. 
You can write to the Information Commissioner at Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF. In most circumstances the Information Commissioner will not
investigate a complaint unless an internal review procedure has been
carried out, however the Commissioner has the option to investigate the
matter at his discretion.

 

Yours sincerely

Jane
FOI Decision Maker
Corporate Information Branch
PSNI HQ Brooklyn

show quoted sections

Durham Constabulary

1 Attachment

This e-mail has been marked OFFICIAL [PUBLIC];

Subject: FOI-2019-01630
2nd October 2019

Dear Mr. Wilby ,

FREEDOM of INFORMATION ACT 2000

Following your request for us to review our previous response concerning:

Durham / PSNI Investigation into Mr Birney and Mr McCaffrey

I can advise you that the Police Service of Northern Ireland has now
completed its review - please see attachment.

Yours sincerely,

Ms Morris
Corporate Information

 

 

 

 

 

show quoted sections

Dear Durham Constabulary,

Please pass this onto PSNI

Receipt of your communication dated 2nd October, 2019 is acknowledged.

These points are made by way of response:

1. As a journalist, it is best to treat anything PSNI say with a great deal of caution. History, past and recent, has shown that, as an organisation, your police force simply cannot be trusted. Neither, for that matter, can Durham.

2. The conduct of this request, between the two organisations, has been akin to dealing with a pair of slippery East End pickpockets.

3. Your finalisation of the internal review adds nothing new, except that you now reveal that all FOI requests to Durham, concerning Operation Yurta, are to be passed over to PSNI. That, in my submission, is prima facie unlawful and the excerpt from the Police Act, upon which you appear to rely, does not extinguish the requirements of the Freedom of Information Act.

4. My position, that Durham has no lawful grounds for passing over the instant request to PSNI, still stands.

5. Without prejudice to the above, the instant information request contains two questions (at 7. and 8.) that PSNI cannot possibly answer. They refer to matters between Durham and OPONI. No attempt to finalise those questions, by way of the Act, has been made by Durham.

6. The section 77 complaint already made against Durham, to the ICO, is now further reinforced. They have deliberately set out to conceal information that it is now known, for certain, exists. PSNI has aided and abetted that alleged criminality and it is a matter for the ICO whether you are joined in that complaint.

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

Freedom of Information, Durham Constabulary

Good morning Mr Wilby,

I confirm that your email below has been sent to PSNI today.

Kind regards
Information Rights and Disclosure Unit
Business Innovation & Development Command
Durham Constabulary
Police Headquarters
Aykley Heads
Durham DH1 5TT

“Delivering excellent policing, inspiring confidence in victims and our communities, by:
Protecting Neighbourhoods
Tackling Criminals
Solving Problems …Around the clock” ‘Integrity instils confidence’

show quoted sections

Dear Freedom of Information,

Thank you for your communication dated 4th October, 2019.

I can confirm that, having spoken to the ICO earlier today, the complaint against Durham has been passed to their Criminal Investigation Unit for a decision as to whether to proceed as a section 77 complaint or, more simply, a section 50 complaint.

If the ICO do not proceed with a Section 77 criminal complaint against Durham, I will make application for a judicial review of that decision at the Administrative Court in Manchester. There is prima facie evidence that your force has deliberately, and calculatingly, withheld materials disclosable under the Act.

The motive, it is submitted is to protect the two Durham officers, who are the subject of this very recent Irish News article, from further scrutiny by journalists, including, of course, myself:

https://www.irishnews.com/news/northerni...

This alleged criminal offence, under section 77 of the Act, and the wider unethical, unprofessional, harassing conduct of "a grubby little police force", will form part of my oral submissions, and cross examination of Leigh Davison, at the final hearing of county court claim D9QZ60NM, listed to be heard in Durham on 29th November, 2019.

Yours sincerely,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

Freedom of Information, Durham Constabulary

Dear Mr Wilby,

 

Re: Your Request on 2nd August 2019, for an Internal Review of a Freedom
of Information Act 2000 (“FOIA”) Decision – case number DC/FOIA/583/19

 

I write to confirm that Durham Constabulary (the Force) did not conduct an
internal review of the above case, as  the Force held the requested
information only on behalf of another Police Force, namely the Police
Service Northern Ireland (PSNI). This information is held under both a
contract, and separate but connected  terms of reference for an
investigation, pursuant to Section 98 of the Police Act 1996.

 

An internal review of the decision to transfer your information request
has now been conducted by a new decision maker. This decision maker has
considered all case material,  and the decision to transfer your request
to PSNI is upheld by this separate i.e. new decision maker.  This final
Force decision maker can also confirm that specialist, external legal
advice was sought prior to this FOIA transfer decision.

 

This new decision maker agrees that  it is PSNI, and not Durham
Constabulary, who are responsible for the handling of your request.

 

As confirmed to you earlier by both PSNI and this Force,  PSNI asked
Durham Constabulary to carry out this investigation under the legislative
remit and powers set out at in Section 98 of the Police Act 1996. This Act
provides a provision for cross border aid to be provided by forces in
England and Wales, to those forces in Northern Ireland and Scotland.

 

Section 98 (5) of the Police Act 1996 states:

 

“While a constable is provided under this section for the assistance of
another police force... he shall, notwithstanding any enactment,—

 

(a)be under the direction and control of the chief officer of police of
that other force (or, where that other force is a police force in Scotland
or the Police Service of Northern Ireland..., of its chief officer or the
chief constable of the Police Service of Northern Ireland.. respectively);
and

 

(b) have in any place the like powers and privileges as a member of that
other force has in that place as a constable.”

 

It is a matter of fact, and also a matter of public record, that Durham
Constabulary are carrying out this investigation on behalf of PSNI, and
are reporting to the Chief Constable of PSN. PSNI are then accountable for
this investigation to the Northern Ireland Policing Board.  Durham
Constabulary are therefore under the ‘direction and control’ of PSNI for
this case and PSNI are bearing the full costs of this investigation.

 

Durham Constabulary, PSNI, together with an independent legal  advisor,
all separately consider therefore that the legal responsibility for
answering your information request rests with PSN. This is because PSNI 
have contracted, and tasked  Durham Constabulary to carry out an
investigation on their behalf, under the above Section 98 Police Act 1996
provisions. 

 

As confirmed to you at an earlier time point by PSNI, PSNI  directed
Durham Constabulary to forward FOIA requests received from anyone, to them
i.e. PSNI. Durham Constabulary has complied with this PSNI direction.

 

In making this internal review decision, the new i.e. the second and final
decision maker for Durham Constabulary has considered the below guidance
on the Information Commissioner’s Office website, in regard to considering
and then determining questions of information ‘held’ under the FOIA 2000.
The original decision maker in this case also considered this guidance.

 

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

 

In conclusion, the decision to transfer your FOI request to PSNI is
upheld.

 

Finally, it  is noted that you have made a complaint to the Information
Commissioner’s Office (ICO). Durham Constabulary will cooperate fully with
any complaint investigation that the ICO office may wish to carry out.

 

Your sincerely

 

Freedom of Information Decision Maker

Durham Constabulary

DURHAM CONSTABULARY, Protecting Neighbourhoods, Tackling Criminals,
Solving Problems…Around the Clock

NEIGHBOURHOOD POLICING: Use your postcode to get access to local news and
events from your Neighbourhood Policing Team, at
https://www.durham.police.uk

This email carries a disclaimer, a copy of which may be read at
https://www.durham.police.uk/Pages/E-Mai...