Dear National Police Chiefs (NPCC),

On Friday 14th September, 2018 The Times newspaper ran an article that referenced a NPCC report entitled 'Chief constable preparation, selection, tenure and retirement in the 'New Landscape of Policing', dated June 2018.

It has generated widespread interest and comment on social media.

Please disclose the following:

1. Name of author, or co-authors, of the report.

2. Date work began on the report.

3. Date first draft of the report produced and to whom was it circulated, apart from the six serving chief constables referred to in the report.

4. Please disclose:

a. Names of those six chief constables referred to at Q3.

b. Name of serving chief constable who contributed to the report.

c. Names of thirteen ex-chief constables who were interviewed and contributed to the report.

It is not expected that the NPCC could reasonably rely on s40(2) of the Act as an exemption. All these individuals held high public office and, very likely, actively courted publicity throughout the later stages of the police career. Having provisionally identified three of them, it can be stated that two of them still do.

5. Please disclose the names of the seven interviewees who were drawn from a pool of PCC's, HMIFRSC, Home Office.

As at Q4 above, the names of the PCC's cannot, reasonably, be withheld under s40(2). Likewise HMIFRIC's contributor. A case could be made out under s40(2) regarding the Home Office official. Please approach him/her for consent, or otherwise.

6. Please disclose any, or all, data relating to assurances given regarding anonymity, confidentiality to interviewees. This should include reference to the fact that the report would be subject to press scrutiny, requests under FOIA.

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

National Police Chiefs' Council

FREEDOM OF INFORMATION REQUEST REFERENCE NUMBER:   000161/18

 

A Freedom of Information request has been received by the NPCC on
17/09/2018.

 

The NPCC is not yet a designated body covered by the terms of the Freedom
of Information legislation. Following the dissolution of the Association
of Chief Police Officers (ACPO), designation under the Freedom of
Information Act did not automatically transfer across to the National
Police Chiefs’ Council (NPCC).

 

For these reasons it is important that you clearly understand that not
being bound by the legislation means that the NPCC cannot apply exemptions
to disclosure, engage the fees regulations and there is no recourse from
the applicant’s perspective to the Information Commissioner’s Office.

 

NPCC Acknowledgement:

 

It is the intention of the NPCC to comply with the spirit of the
legislation and I hope to be in a position to respond to your within the
statutory timescale of 20 working days subject to the provisions of the
Act.

 

In the unlikely event that the NPCC is unable to meet the 20 working day
deadline, you will be informed as soon as possible and given a revised
time-scale for response.

 

Kind regards.

Sherry

 

Sherry Traquair

NPCC Freedom of Information Officer & Decision Maker

 

National Police Freedom of Information & Data Protection Unit (NPFDU)

PO Box 481, Fareham, PO14 9FS

 

[1]http://www.npcc.police.uk/NationalPolici...

 

T   | 02380 478922

M | 077 685 53447

E   | [2][NPCC request email]

W | [3]www.npccc.police.uk

 

NB: Non-work day - Friday

 

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2. mailto:[NPCC request email]
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Dear National Police Chiefs' Council,

Thank you for the acknowledgment to my request.

I was aware of the legacy issue concerning ACPO and the Act, but made the request in the knowledge that you have responded to my requests previously.

More particularly, I was aware that NPCC provides an advisory service to police forces who receive requests that, potentially, may cause reputational damage to the wider police service.

I look forward to receiving your finalisation.

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

National Police Chiefs' Council

1 Attachment

Good afternoon

 

Please find attached NPCC response to your Freedom of Information request.

With kind regards.

Sherry

 

Sherry Traquair

NPCC Freedom of Information Officer & Decision Maker

 

National Police Freedom of Information & Data Protection Unit (NPFDU)

PO Box 481, Fareham, PO14 9FS

 

[1]http://www.npcc.police.uk/NationalPolici...

 

T   | 02380 478922

M | 077 685 53447

E   | [2][NPCC request email]

W | [3]www.npccc.police.uk

 

NB: Non-work day - Friday

 

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Dear National Police Chiefs' Council (NPCC),

Thank you for the response to my information request.

I am grateful for the disclosure made at questions 2, 3 and 4(partial), particularly as the NPCC is not, as yet, captured by the Freedom of Information Act.

Please treat this communication as an internal review request (IRR). It is accepted, of course, that there is no recourse to the Information Commissioner's Office or, ultimately, the First Tier (Information Rights) Tribunal, following the outcome of the IRR. There is, however, recourse to the Administrative Court by way of a Judicial Review application. That is a step that would be taken if the NPCC maintains its section 38(1) section 31 exemptions and you are, accordingly, on notice of costs in that regard. This IRR takes the form of a pre-action protocol letter.

The grounds for complaint are:

1. Another public authority has (erroneously) relied on section 41 to refuse disclosure of information on the same broad topic, not section 38(1) or section 31(g) [sic] and/or S31(2)(j).

2. The reliance on section 38(1) is wholly misconceived and unsustainable in law. It is my genuinely held belief that this is an information request finalisation grounded only in bad faith (see also para 6 below):

3. a. BUAV v Information Commissioner (ICO )and Newcastle University (EA/2010/0064) is considered by information rights practitioners as the leading case on this exemption, albeit from a very small sample. PETA v ICO & University of Oxford is another cited Tribunal finding.

b. These are the two key points to be drawn from those judgments that are relevant to this request, and its finalisation by the NPCC:

(i) Firstly, the meaning of 'endanger': Judge Andrew Bartlett QC, in BUAV, drew a distinction between 'risk' and 'danger', thus:

“We must take into account that in s38(1) Parliament chose to use the word “endanger” and did not refer either to “injury” or to “prejudice”. On the other hand, considering the statutory purpose of freedom of information, balanced by exemptions, we are not persuaded that it would be right to read the word “endanger” in a sense which would engage the exception merely because of a risk. A risk is not the same as a specific danger. Every time a motorist drives on the road there is a risk that an accident may occur, but driving is only dangerous when a particularly risky situation arises. So, for example, there is always a risk that a researcher might become a target for persons opposing animal research by unlawful and violent means, but the researcher’s physical health would not be endangered unless a specific attack were made. We need to consider the likelihood of such an attack, and the likelihood of other conduct which would endanger mental health or other aspects of safety.”

In the NPCC's finalisation of the instant request it is completely absent of particularisation of either risk or danger.

(ii) Secondly, the Panel (which, interestingly, included Dr Malcolm Clarke, before whom I have appeared as an appellant) emphasised the importance of establishing a causal link between disclosure of the specific information requested and the envisaged danger:

“There is also a causation criterion to be met. We are not required to consider in the round the likelihood of the researchers or other persons being endangered, but specifically the likelihood of such endangerment as a result of disclosure of the requested information.”

In the NPCC's finalisation of the instant request it is completely absent of particularisation of causation.

c. In PETA, the Information Commissioner submitted that the term "endanger" as set out in section 38 should be interpreted in the same way as the term "prejudice" in other FOIA exemptions. In order to engage this exemption, therefore, the NPCC must demonstrate that disclosure of the information in question would, or would be likely to, have a detrimental effect upon the physical or mental health of any individual, or the safety of any individual, that is more than trivial or insignificant. The Tfribunal accepted that argument, and it went on to apply the prejudice test it had used in Hogan and Oxford City Council v IC (EA/2005/0026 and EA/2005/0030). The latter is embedded as the leading authority on prejudice and widely used.

In the NPCC's finalisation of the instant request it is completely absent of particularisation of how disclosure of names as contributors to a report would cause detriment.

4. Unsurprisingly, given what is set out in para 3 above, the Information Commissioner says, in her internal guidance to caseworkers, that when applying section 38, to assess endangerment the same test as for prejudice in other exemptions should be used. To establish a danger to mental health under section 38, it must be demonstrated that the disclosure of information would or would be likely to endanger mental health, to an extent greater than mere stress or worry.

In the NPCC's finalisation of the instant request it is completely absent of particularisation as to how disclosure of names as contributors to a report would cause danger to mental health beyond stress or worry.

5. In Decision Notice FS50139215 the Information Commissioner directed the Metropolitan Police Service (MPS) to disclose specific CCTV footage showing the movements of the terrorist attackers in London on 7th July, 2005.

MPS argued that the film was exempt from disclosure under sections 30(1)(a) (information held for the purposes of an investigation) and 38(1). The Commissioner dismissed the MPS submissions that the exemption under section 38(1) was engaged at all, making the point that the arguments advanced by the MPS on this exemption had lacked specification in direct relation to the information requested.

In the NPCC's finalisation of the instant request it is completely absent of particularisation (or, put another way, detail).

6. FOI is applicant and purpose-blind is a widely accepted proposition. With the NPCC having actively encouraged Durham Police to libel and smear me in what is, arguably, the most offensive response to a request in the history of the Freedom of Information Act, it is a short step to the hypothesis that, in this particular request, the NPCC is setting out to frustrate an individual journalist, who routinely exposes senior police officer misconduct, rather than taking the request at its face. The internal reviewer should, however, have regard to the fact that there has been a significant number of Information Rights Tribunal findings that recognise the social watchdog aims of journalists, in particular, and that has beena factors in decisions found in their favour. That is a position that the Administrative Court may, amongst a significant number of others in my favour, adopt when deciding whether the instant finalisation, with its section 38 exemption, was a decision reasonably open for the NPCC to take.

7. It might be noted by the internal reviewer that just today, 15th October, 2018, Stephen Kavanagh, the recently retired Essex chief constable has given a lengthy interview to 'Policing Insight' that uses the New Landscaping in Policing rteport as its backdrop and rehearses the key points from that report. He is bylined, with a large photograph prominently displayed below the headline. Putting aside all that is set out above, in this IRR, the actions of Mr Kavanagh seriously undermine the section 38 exemption. He shows no sign of stress or worry in commenting on the report. It is a reasonable supposition, viewed through the lens of a journalist and given what is said in the article, that he may well have been involved with the construction of the report in some way.

8. At Questions 4(c) and 5, the NPCC seeks to rely on an exemption "Section 31(g)". There is no such exemption under the Act. My position on this point is reserved until that exemption is clarified and particularised. But, for now, I say that any reliance, on any part of section 31, by the NPCC, is wholly misconceived. That conclusion is drawn by simply reading the subject report (having obtained a full copy, I have read it twice). For convenience, and for the benefit of fellow users and readers of the What Do They Know website I have included a link to section 31 of the Act.
https://www.legislation.gov.uk/ukpga/200...

It is this type of lack of care, and attention to detail, that strongly suggests that a decision not to disclose was made first, at a senior level within the NPCC, and the disclosure officer was then required to try to arrange some exemptions that might possibly apply, in the hope that the requester would give up and go away. Put shortly, that is not going to happen.

9. Finally, it might be noted, as a learning point by the NPCC, that this internal review request has taken me a considerable amount of time to research, prepare, write up and edit (over 10 hours). It will take an internal reviewer a similar amount of time to assess and provide an outcome (probably 8 to 10 hours would be a reasonable estimate). This is at a time when both my own, and, more crucially, police resources are scarce. If I might, therefore, most respectfully request that greater thought is given by the NPCC to the consequences of providing sub-optimal finalisations to information requests, of the calibre of this one, where the sole intention appears to be to use any means possible to frustrate, and delay, the inevitable?

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

National Police Chiefs' Council

FREEDOM OF INFORMATION INTERNAL REVIEW REQUEST REFERENCE NUMBER: 000181/18

A Freedom of Information request has been received by the NPCC on 15/10/2018.

The NPCC is not yet a designated body covered by the terms of the Freedom of Information legislation. Following the dissolution of the Association of Chief Police Officers (ACPO), designation under the Freedom of Information Act did not automatically transfer across to the National Police Chiefs’ Council (NPCC).

For these reasons it is important that you clearly understand that not being bound by the legislation means that the NPCC cannot apply exemptions to disclosure, engage the fees regulations and there is no recourse from the applicant’s perspective to the Information Commissioner’s Office.

NPCC Acknowledgement:

It is the intention of the NPCC to comply with the spirit of the legislation and I hope to be in a position to respond to your within the statutory timescale of 20 working days subject to the provisions of the Act.

In the unlikely event that the NPCC is unable to meet the 20 working day deadline, you will be informed as soon as possible and given a revised time-scale for response.

Kind regards.

Colin Ley-Smith
NPFDU Manager

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National Police Chiefs' Council

2 Attachments

 
Dear Mr Wilby
 
Please find attached your internal review in respect of your Freedom of
Information request regarding the ‘New Landscape of Policing Report’.
 
Regards
 
Colin Ley-Smith | National Police Freedom of Information and Data
Protection Unit Manager | National Police Chief’s Council
Telephone: 01489 569823 or 101 extension 4647-501 | Email
[1][email address] or [2][email address]
Address: NPFDU PO Box 481, Fareham, Hampshire. PO14 9FS
                             
 
 
 
 

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Dear National Police Chiefs' Council (NPCC),

I am well aware that this request does not fall within the ambit of the Freedom of Information Act. You are fortunate, insofar as your finalisation would not have borne even the mildest scrutiny at the Information Commissioner's Office.

A pre-action protocol compliant letter before claim will be issued in contemplation of a judicial review application. You are, accordingly, on notice of costs.

This was, palpably, and to anyone with even the barest working knowledge of the Act, not a decision reasonably open to the NPCC to take. Further the claim of Mr Ley-Smith that each of the heads of complaint has been considered is, on any independent view, far-fetched.

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com