Dear Mr Wright

FREEDOM OF INFORMATION ACT 2000

Thank you for your request for information, received 13 November 2012.

Your request is being considered and you will receive a response within the statutory timescale of 20 working days, as defined by the Act, subject to the application of any statutory exemptions. Where consideration is being given to the application of any exemptions the 20 working day timescale may be extended under the terms of the Act to a period considered reasonable depending on the nature and circumstances of your request. In such cases you will be notified and, where possible, a revised time-scale will be indicated. In all cases we shall attempt to deal with your request at the earliest opportunity.

There may be a fee payable for the retrieval, collation and provision of the information requested, where the request exceeds the statutory limit. In such cases you will be informed in writing and the 20 working day timescale will be suspended until we receive payment from you or your request is modified and /or reduced. If you chose not to make full payment or modify your request then the request will remain unanswered.

Your request may require either full or partial transfer to another public authority. You will be informed if your request is transferred.

Yours sincerely

Freedom of Information Unit
Information Services
Tel: 0345 113 5000

To report crime and anti-social behaviour which does not require an emergency response please call 101. In an emergency call 999. For all other enquiries (or for callers outside the West Midlands), dial 0345 113 5000

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Dear Mr Wright

 

FREEDOM OF INFORMATION ACT 2000

 

Your request for information, received 13 November 2012 has now been
considered. This response is our response under the terms of the Freedom
of Information (FOI) Act only. The FOI Act places a number of legal
constraints upon us and therefore this letter answers only those
obligations.

 

Before I explain the decisions I have made in relation to your request, I
thought that it would be helpful to outline the parameters set out by the
Freedom of Information Act 2000 (the Act) within which a request for
information can be answered.

 

The Freedom of Information Act 2000 creates a statutory right of access to
information held by public authorities. A public authority in receipt of a
request must, if permitted, state under Section 1(a) of the Act, whether
it holds the requested information and, if held, then communicate that
information to the applicant under Section 1(b) of the Act.

 

The right of access to information is not without exception and is subject
to a number of exemptions which are designed to enable public authorities
to withhold information that is unsuitable for release. Importantly the
Act is designed to place information into the public domain, that is, once
access to information is granted to one person under the Act, it is then
considered public information and must be communicated to any individual
should a request be received.

 

DECISION UNDER THE TERMS OF THE FREEDOM OF INFORMATION ACT

 

West Midlands Police will neither confirm nor deny that we hold any of the
requested information. This letter serves as a Refusal Notice under
Section 17 of the Freedom of Information Act 2000 (the Act).

 

REASONS FOR DECISION

 

Section 17 of the Freedom of Information Act 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
the Act requires that we provide the applicant with a notice which: a)
states that fact b) specifies the exemption(s) in question and c) states
(if that would not otherwise be apparent) why the exemption applies.

 

In accordance with the Act, this letter represents a Refusal Notice for
this particular request. West Midlands Police will neither confirm nor
deny the existence of any relevant data by virtue of the following
exemptions

 

Section 23(5)

Section 44(2)

Section 30(3)

Section 31(3)

Section 40(5)

 

These exemptions and explanatory notes are shown here:

 

http://www.west-midlands.police.uk/foi/p...

 

Sections 44, 23 and 40 are absolute exemptions which means that the
legislators have identified that harm would be caused by release and there
is no requirement to consider the public interest test

 

Section 40 (5) is an absolute and class based exemption if to confirm or
deny that the information exists would breach the third party’s data
protection rights.  In this case to confirm or deny the existence of
personal information would not constitute fair processing of the data and
therefore would breach the first of the principles within the Data
Protection Act 1998. As this exemption is class based I am not required to
identify the harm in disclosure and in this instance I believe that the
right to privacy outweighs any public interest in release.

 

Sections 30(3)) and 31(3) are qualified and there is a requirement to
carry out a public interest balancing test before they can be relied upon.

 

Overall Harm

The Regulation of Investigatory Powers Act 2000 (RIPA) is often a complex
piece of legislation to interpret.  The RIPA Act is a regulatory framework
around a range of investigatory powers to ensure the powers are used
lawfully and in a way that is compatible with the European Conviction on
Human rights.  It also requires, in particular, those authorising the use
of covert techniques to give proper consideration to whether their use is
necessary and proportionate. A legislative scrutiny framework already
exists for RIPA activity: Police surveillance activity is subject to
annual inspection by the Interception of Communications Commissioners
Office (IOCCO) and Office of Surveillance Commissioners (OSC).  These
inspections assess each constabulary’s compliance with the legislation and
a full report is submitted to the Prime Minister containing statistical
information.

 

In order to counter criminal activity it is vital that the police and
other agencies have the ability to work together, where necessary
covertly, in order to obtain intelligence within current legislative
frameworks to ensure the successful arrest and prosecution of those who
commit criminal acts.

 

The prevention and detection of crime is the foundation upon which
policing is built and the police have a clear responsibility to prevent
crime and arrest those responsible for committing crime. To do this the
police require evidence and that evidence can come from a number of
sources, some of which is obtained through covert means.

 

To confirm or deny any of the police actions around RIPA would undermine
ongoing investigations, reveal policing techniques, risk the
identification of individuals and the possibility of revealing involvement
of any exempt bodies

 

Revealing information that specific tactics are used in certain
circumstances would help subjects avoid detection, and inhibit the
prevention and detection of crime. This could either lead to the
identification of specific cases or in providing this level of information
at force level is likely to result in significantly small authorisation
numbers being published and presents a real risk of identifying the
resources available to individual departments to covertly monitor
individuals likely to be committing offences under their remit. Disclosure
would undermine the partnership approach to law enforcement but also, due
to the legal constraints under Chapter 1 of part 1 of the RIPA
legislation, it may actually be a criminal offence to do so (Section 19). 

To confirm or deny how many RIPA applications have been made relating to
police officer’s use of social media or email would compromise ongoing
investigations or identify individuals. If a force applied an exemption to
the information this would reveal that these policing techniques and
investigative activity had taken place. Conversely, by stating ‘no
information held’ would highlight to an officer that his conduct is not
being investigated and that he is free to continue.

 

It is important the Police Service discloses information regarding
surveillance activity under RIPA where it is appropriate to do so but an
officer’s conduct may be investigated covertly by the force PSD
(Professional Standards Department) without the member of staff knowing of
its existence. By confirming or denying that RIPA applications have been
made would alert an officer that may or may not be involved in the misuse
of social media or email, not only that PSD have the ability to ask
for RIPA applications in these circumstances, but that they are aware of
his misconduct. The officer would then cease his activity and perhaps make
attempts to hide or delete the evidence.

 

Information compiled for the purposes of an investigation, be it a
criminal investigation or internal misconduct hearing, may contain
information obtained from individuals to assist with an investigation,
which would be in confidence.  To disclose investigative information could
dissuade people from providing information to the police in future.  The
public, be they general members of the public or internal police officers
or staff, must have confidence that their information is treated
sensitively and appropriately.   Confirming or denying the information is
held could lead to ‘trial by media’ as it is likely to identify any
officers that may or may not be involved. 

 

Factors favouring confirmation or denial for S31

By confirming or denying that RIPA applications have been made in respect
of police officers use of social media would enable the public to see
where public funds are being spent. Better public awareness may reduce
crime or lead to more information from the public.

 

Factors against confirmation or denial for S31

By confirming or denying that any information relevant to the request
exists, law enforcement tactics could be compromised which could hinder
the prevention and detection of crime and more crime could be committed.

 

Factors favouring confirmation or denial for S30

By confirming or denying that any information relevant to the request
exists would enable the public to obtain satisfaction that all
investigations are conducted appropriately and that their public money is
well spent. Confirming or denying that RIPA is applied to police that
misuse social media would increase public scrutiny of police actions and
in turn hold the police service to account.

 

Factors against confirmation or denial for S30

 By confirming or denying that RIPA applications have been made in
instances of police use of social media or email would hinder the
prevention or detection of crime and undermine the partnership approach to
law enforcement.

 

Balance test

The Police service will not divulge whether information is or is not held
if to do so would undermine ongoing investigations or compromise law
enforcement. Whilst there is a public interest in the transparency of
policing operations and in this case providing assurance that the police
service is appropriately and effectively managing the conduct of police
officers, there is a very strong public interest in safeguarding the
integrity of police investigations and operations. 

 

There is also no requirement to satisfy any public concern over the
legality of police operations and the tactics we may or may not use. The
force is already held to account by independent bodies such as The Office
of the Surveillance Commissioner and The Interception of Communications
Commissioners Office. These inspections assess each constabulary’s
compliance with the legislation and a full report is submitted to the
Prime Minister containing statistical information. Our accountability is
therefore not enhanced by confirming or denying that any other information
is held.

 

As much as there is public interest in knowing that policing activity is
appropriate and balanced in matters of police officer conduct, this will
only be overridden in exceptional circumstances. The points above
highlight the merits of neither confirming or denying the requested data
exists. It is appreciated that members of the public will naturally be
interested in techniques employed for surveillance. Likewise, we also
understand some people believe surveillance (in any form) is used too
widely, and therefore an unnecessary intrusion into their privacy.  
However, taking into account the fact that the Police Service are already
scrutinised as detailed above and effective operational law enforcement
would be compromised by any disclosure, it is my opinion that for these
issues the balance test for confirmation or denial is not made out.

 

 

No inference can be taken from this refusal that the information you have
requested does or does not exist.

 

Your attention is drawn to your right to request a re-examination of your
case under West Midlands Police review procedure, which can be found at:

 

http://www.west-midlands.police.uk/pdf/F...

 

Please note that such an appeal must be received within 40 working days of
the date of this correspondence.

 

If you require any further information, then please do not hesitate to
contact me.

 

 

 

Yours sincerely,

 

 

 

Susan Brown

Freedom of Information Unit

Information Services

Tel: 0345 113 5000

exts:

7630 6781

7630 6260

7630 6110

 

To report crime and anti-social behaviour which does not require an
emergency response please call 101. In an emergency call 999. For all
other enquiries (or for callers outside the West Midlands), dial 0345 113
5000

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Twitter: [2]www.twitter.com/wmpolice
Facebook: [3]www.facebook.com/westmidlandspolice
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Flickr: [5]www.flickr.com/westmidlandspolice

 

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or confidential information. If received in error, please notify the
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expressed in this email do not necessarily represent those of West
Midlands Police. All West Midlands Police email activity is monitored for
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responsibility is accepted by West Midlands Police for any loss or damage
arising in any way from the receipt or use of this email.

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Dear Mr Wright

FREEDOM OF INFORMATION ACT 2000 REQUEST REFERENCE No: 2891/12

We acknowledge receipt of your email requesting West Midlands Police to review its response to your request for information.

The review will be conducted by a person independent of the original decision in accordance with the West Midlands Police review procedure.

Every effort will be made to have a response to you by 25 February 2013. However, if it becomes clear that the review will not be completed by this date you will be advised.

If you wish to discuss this matter prior to West Midlands Police’s response, please contact us,

Yours sincerely,

Freedom of Information Unit
Information Services
Tel: 0345 113 5000

To report crime and anti-social behaviour which does not require an emergency response please call 101. In an emergency call 999. For all other enquiries (or for callers outside the West Midlands), dial 0345 113 5000

Website: www.west-midlands.police.uk
Twitter: www.twitter.com/wmpolice
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YouTube: www.youtube.com/westmidlandspolice
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View all our social network links

Our vision: Serving our communities, protecting them from harm

show quoted sections

Dear Mr Wright

 

FREEDOM OF INFORMATION ACT 2000 REQUEST REFERENCE No: 2891/12

 

Thank you for your email received 28 January 2013 where you requested West
Midlands Police to review its response to your request for information
concerning RIPA requests.

 

REQUEST

1) Can you please tell me for the year 2011, how many RIPA applications
were made by members of your Force in relation to Police Officers' use of
Social Media or e-mail?

2) Can you please tell me for the year 2011 what were the relevant
offences or Discipline Regulations for these applications?

3) For the year 2011 what was the result of these applications? How many
officers were either prosecuted or disciplined?

4) For the year 2011, how many such applications (as above) were refused
and on what grounds?

 

A review has been conducted and the original decision is upheld for the
following reasons:

 

The Freedom of Information Act places two responsibilities on public
authorities, the first of which is to confirm what information it holds
and secondly to then disclose that information, unless exemptions apply.

 

In this case I am unable to confirm or deny that West Midlands Police
holds any relevant information because the following exemptions are
engaged:

 

Information Supplied by, or concerning, Certain Security Bodies - Section
23(5)

Investigations and Proceedings Conducted by Public Authorities - Section
30(3)

Law Enforcement - Section 31(3)

Personal Information - Section 40(5)

Information Covered by Prohibitions on Disclosure - Section 44(2)

 

Sections 23(5) and 44 (2) are absolute exemptions which means that where
information is caught by these exemptions there is no requirement to
consider the public interest test. While Section 40 is also an absolute
exemption, Section 40(5) does require a consideration of the public
interest in respect of confirmation or denial that any information is
held.

 

With respect to Section 23(5), Section 44 (2) and Section 40 (5) the
relevant factor is the rarity of the precise circumstances of your
request. Such investigations, if any were undertaken, would be small in
number and so any confirmation or denial would reveal (or otherwise
indicate) the involvement of certain security bodies or individuals or
could breach provisions within the RIPA regulations. Disclosure of
information that would reveal that identifiable officers were investigated
would prejudice their rights and/or legitimate interests and so
confirmation or denial would not be fair. Therefore it is my view that
Section 40 (5) is engaged with respect to this information and
confirmation or denial would breach the first data protection principle.

 

Sections 30(3) and 31(3) are qualified and require us to carry out a
public interest test on confirmation or denial.

 

Harm in Confirmation or Denial

 

Confirmation or denial that any information is held would allow for the
identification of the existence (or otherwise) of an investigation and the
use of specific surveillance techniques. These techniques, and the
investigations, would be covert. Therefore revealing the detail requested
would undermine the integrity of investigations by revealing their
existence.

 

The use of these techniques, particularly in the specific circumstances of
the request, would be very rare events.  While officers may be aware of
the possibility of the use of these techniques, confirming or denying that
any information is held would reveal whether these techniques had actually
been utilised by WMP within the specific timeframe.  Revealing the
existence of otherwise of any information would allow for the
understanding of exactly how frequently the technique is used (especially
if information from a number of forces were compared) . The use (or none
use) of the techniques would also reveal that an investigation has (or has
not) taken place.

 

If an officer had been conducting activity which would warrant such
investigations in this particular year, confirming or denying that any
information were held would allow that officer to know whether they had
actually been investigated (or that this technique had been used). 
Confirming that they are under investigation would allow them to destroy
evidence or take other steps to undermine that investigation.  Conversely
confirming that they were not under investigation would encourage them to
carry on their behaviour in the knowledge that they are not being
investigated.

 

Section 30 (3)

 

Considerations favouring confirmation or denial

 

Disclosing this information would provide greater transparency in the
investigative process and the actions of a West Midlands Police. It is
clear that there is a public interest in public authorities operating in
as transparent a manner as possible, as this should ensure they operate
effectively and efficiently.

 

Considerations against confirmation or denial

 

Confirming that information is or is not held would allow officers to know
whether they have been investigated or not. This would allow offenders to
change their behaviour in order to avoid detection and prosecution.
Conversely it could confirm that they are not being investigated allowing
them to continue their behaviour in the knowledge that they have not been
detected.

 

Section 31 (3)

 

Considerations favouring confirmation or denial

 

Police officers need to utilise the appropriate techniques in order to
properly and thoroughly investigate possible inappropriate behaviour.
Confirmation or denial of the existence of this information could go some
way towards reassuring the public that the police service is prepared and
effective.

 

Considerations against confirmation or denial

 

The current and future law enforcement role of the service would be
compromised by the disclosure of a force’s use (or otherwise) of specific
techniques. This would undermine their usage in specific instances, but
would also allow for the mapping of the use of these techniques across
forces and times.

 

Balancing Test

 

In considering the public interest in relation to Section 30 (3) and 31(3)
I have balanced the factors in relation to transparency against the public
interest in maintaining the integrity of investigations and the likely
impact of release on future investigations.

 

For a public interest test, issues that favour release need to be measured
against issues that favour non-disclosure. The public interest is not what
interests the public, or a particular individual, but what will be the
greater good, if released, to the community as a whole.

 

I recognise that the public interest in being open and transparent is of
great importance to all and release of information may assist in the
public being more aware of the work that the police are carrying out.
However, while the public interest considerations favouring disclosure are
noted, this must be balanced with the impact any release would have
specific investigations and on the operational capability of the police.

 

In this case, as outlined above, confirmation or otherwise of the
existence of the information could lead to investigations being
compromised or impede the use of specific techniques and procedures.

 

It is important to note in this case that these investigations and the use
of these techniques is already scrutinised and monitored by independent
bodies. The wider public interest lies in ensuring that these
investigations are carried out appropriately and these techniques are
utilised proportionally. There are processes already in place to ensure
that this is so.

 

Having considered the arguments for and against confirmation or denial,
the greater public interest is served in maintaining the integrity of the
investigative process and the use of these law enforcement techniques.
This in turn favours neither confirming nor denying that any information
is held. West Midlands Police will not confirm or deny the existence of
information that could undermine investigations or compromise the future
law enforcement role of the force.

 

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at: Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF

 

Yours sincerely,

 

 

Carl Bird

Freedom of Information Unit

Information Services

Tel: 0345 113 5000

exts:

7630 6781

7630 6260

7630 6110

 

To report crime and anti-social behaviour which does not require an
emergency response please call 101. In an emergency call 999. For all
other enquiries (or for callers outside the West Midlands), dial 0345 113
5000

Website: [1]www.west-midlands.police.uk
Twitter: [2]www.twitter.com/wmpolice
Facebook: [3]www.facebook.com/westmidlandspolice
YouTube: [4]www.youtube.com/westmidlandspolice

Flickr: [5]www.flickr.com/westmidlandspolice

 

[6]View all our social network links

 

Our vision: Serving our communities, protecting them from harm

 

This email is intended for the addressee only and may contain privileged
or confidential information. If received in error, please notify the
originator immediately. Any unauthorised use, disclosure, copying or
alteration of this email is strictly forbidden. Views or opinions
expressed in this email do not necessarily represent those of West
Midlands Police. All West Midlands Police email activity is monitored for
virus, racist, obscene, or otherwise inappropriate activity. No
responsibility is accepted by West Midlands Police for any loss or damage
arising in any way from the receipt or use of this email.

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