It’s an unfair cop

This is not what is meant as gardening leave.

If I were to describe my love for the Freedom of Information Act, it would be the love you might have for a cruel, but intoxicating mistress (not that I have one I hasten to add).

At times everything goes swimmingly and you can’t believe your luck that the prize nincompoop Tony Blair and his pals agreed to bring it in. FoI and I are the best of pals, sharing picnics in summer meadows.

But at other times it seems to conspire against you, sometimes standing in your way, or more normally working you up into a rage with an erratic series of minor inconveniences. At these moments FoI deletes you as a friend from her Facebook page.

I’m going through one of those rough sessions, and it is not the Act itself that is annoying me but the inconsistency in the way it is used. I shall try to explain.

Exhibit 1.

Every year I send off a FoI request to all the police forces asking how many of their officers were suspended on full pay at the start of the year. It is a straightforward question, which when I compile all the results, makes a reasonable story in the papers, normally with “Gardening Leave Bobbies Costing Taxpayers £millions” somewhere in the headline or intro.

But each year one force always kicks up rough, normally because a senior officer is suspended and they don’t want to tell me.

This year the force in question is Dyfed-Powys. Having answered the same question for 2009, 2010, and 2011 they now refuse to answer it in 2012. They claim a S.40 and S.30 exemption.

Clearly I will appeal this case all the way. Last year I ducked out of a similar fight with a police force when I asked how many officers had been off for the entire year with stress. On that occasion I thought the health element in the question would trump my inquiry. In this situation I think I have the public interest on my side.

Exhibit 2.

Hugh Fearnley-Whittingstall - More syllabels than any other chef

If I ever had the misfortune to be burgled what profession do you think the criminals would assume I have? My guess would be some sort of failed chef as we seem to have every celebrity cook book published in the last 15 years. Despite having thousands of recipes from top chefs on our bookshelves and dotted around the kitchen I’m afraid the peak of my culinary powers is still tuna pasta bake (although it is nice).

Trying to mix business with pleasure I occasionally do a trawl of celebrity restaurants by asking for the food inspection reports carried out by local councils on their establishments. This can sometimes yield a good story when rat dropping are found, or the pate has gone off.

My latest request was for details of Hugh Fearnley-Whittingstall’s eateries in the south-west. I asked for the actual reports and all I got was a link to the Scores on the Doors website. It means I will have to appeal it, wasting more time and money. In the computer age we now live in I find it surprising that these reports are not routinely posted on-line, so as well as seeing a restaurants score, we can see the rationale for the decision.

This is what I asked for:

Please could you provide me with a copy of all food safety reports concerning the establishments listed below which were conducted on or after 1.1.09.

River Cottage Axminster Canteen and Deli, Trinity Street, Axminster

River Cottage, Parm Farm, Trinity Hill Road, Axminster, EX13 8TB.

And this is what I got back…..

Dear Mr Davis,

 Thank you for your request for information. Please find the response to your query below.

 This information is made publicly available via the National Food Hygiene Rating Scheme website http://ratings.food.gov.uk/

 This site has been designed to give the public information about whether premises comply with food hygiene requirements without disclosing any detail which could be commercially compromising or sensitive.

 I trust this information is helpful to you.

 If you are not satisfied with the way we have responded to your request, please fill in our online complaint form at www.eastdevon.gov.uk/making_a_complaint or write to the Monitoring Officer, EDDC, Knowle, Sidmouth, EX10 8HL.

 Another appeal I fear.

Plane crazy

Where did I put those flares?

You can’t fail to have noticed that the issue of maritime safety has shot up the news agenda recently.

 The apparently cack-handed way the ship was driven into the rocks and its subsequent sinking give a whole new meaning to the term “European bail-out”. Women, children and nationals from countries without a AAA rating abandon ship first.

 But the subject brings me back to an interesting squabble I’ve managed to get myself into with the Department of Transport.

 At the back end of last year I asked the following question: “Please could you provide me with a copy of all the SAFA Ramp Inspection Reports you hold dated from 1.1.10 to the present date where any Class 3 (major influence on safety) action has been recorded.”

 For those of you not familiar with the plane inspection regime my understanding is that official can swoop on aircraft at any time and then fill in a form about its airworthiness.

 As you can see from my question I just want the ones where there has been a Class 3 finding on the basis that if the experts say it has a problem which is a major influence on safety, that is in the public interest.

 But my request has been turned down. See the letter here. plane…………. The Department of Transport relied on S.27 (International Relations) and S.30 and S.31. All of which as we know are subject to the public interest test. Yet it is thought that the knowledge of which planes have major safety defects is best kept from us.

 This would be an interesting enough case on its own if it were not for the fact that I believe the Department of Transport then took aim at their own feet and fired off a volley of shots.

 While trawling the internet I found a spreadsheet that had been provided to an MP that gave details of all inspections that had been carried out by an agency of the Department of Transport on ships.

 I then asked a follow up question saying could I have all the detailed report sheets on those ships which when inspected were deemed the most dangerous, and were banned from setting sail until the defects were corrected.

 On this occasion there were no fears that the reports might adversely affect our relationships with foreign nations or that it would bring the whole inspection regime collapsing around our ears. Here are two of the reports I was provided with of ships that were too dangerous to be allowed to leave port in October last year.

 Here are the reports of two ships that were held in port last year because of safety fears. The OCEAN BRIDGE and the  ADINATH ONE

By the incredible power of the internet you can even now see where both ships are. When I last looked Adinath One was near Malta and Ocean Bridge was somehwere off the coast of West Africa. But the main thing, I suppose is that they are both on the sea rather than under it.

Anyhow, I’m looking forward to seeing how the Department of Transport can justify treating plane safety one way and ship safety completely differently. I’ll keep you posted.

Informants’ secrecy slowly peeling away

Sometimes extracting information from public bodies can be a painful process. Is it safe?

Police forces look as if they are going to be forced to disclose yet more information about the amount of money they pay their “sources” for information about criminals.

The police service has always attempted to maintain a robust defence to protect data about so called Covert Human Intelligences Sources (CHIS). However, that protection had a huge chunk taken out of it last year in a Decision Notice in relation to informants paid by Northumbria Police [link] and has now been further nibbled away at in a ruling against the Metropolitan Police Service [link].

Arguments have been fairly routine in that the police have acted to protect the confidentiality of their informants and to this end refused to release any meaningful data about the amounts handed over to their “grasses”.

Forces have claimed S.30 (investigations) and S.38 (health and safety). In summary it is claimed by forces that disclosure of the amounts paid to informants as a whole could lead to the identification of individuals which could be a disincentive for sources to come forward in the future and could lead to attacks on the informant.

The counter claim has been that the detail of information that is being asked for – normally the annual figure paid to informants in a wide geographical area – is not going to lead to any individual being identified and therefore the exemptions are not relevant.

The significance of the most recent judgement is the geographical area that the data covers. The request was for the amount paid to informants in Croydon, one of the London boroughs served by the Metropolitan Police Force(MPS).

Lawyers for the MPS stated that in the Northumbria Police decision the potential pool of people (the population of the Northumbria Police area) was 1.5million, whereas Croydon covers just 300,000 people.

The Information Commissioner rejected this argument and obviously felt that the informants within the 300,000 population of the south London borough would still have their anonymity assured even if the total payment figures were disclosed.

The passage of this ruling has a similar history to that relating to the details of the numbers of registered sex offenders in each police area. Initially police would only give the number registered in each force but following a Decision Notice [link] on the subject they were made to give out the numbers by police divisions within each force area.

UPDATE 9.1.10: It would appear from an article in the Times that it is the Police’s intention to appeal the decision to the Information Tribunal.

U English. Wat informazion ar u holding?

Members of the Scorpions - not Cambridgeshire police. This was the alternate cover. I find this one pretty offensive and upsetting.

Cambridgeshire Police force is being forced to disclose what information they hold in relation to a row which developed last year into the censoring of internet.

The dispute centres on a decision by the Internet Watch Foundation (IWF) to blacklist Wikipedia due to concerns over the legality of an image used on the page of German heavy metal band Scorpions.

The image in question was the album cover called Virgin Killer – and features a naked prepubescent girl. Four days after some of Wikipedia’s pages were blocked because of the row the IWF reversed the decision and the image can once again be viewed on the band’s pages on the site.

From a Freedom of Information point of view the issue relates to an applicant asking Cambridgeshire Police “Please disclose…what is in the communications between the Police and the Internet Watch Foundation that relates to an image on Wikipedia of the cover of an album by rock band The Scorpions.”

The police force refused to either confirm or deny it had the information claiming it was covered by a S.30 (Investigations) exemption.

However, when the commissioner looked into the matter it was ruled the exemption was not applicable to the case.

It appears Cambridgeshire Police did not want to release information because it did not want to reveal that it was the force that was contacted for advice by the IWF – and in essence wanted to keep the relationship between it and the non-Governmental internet watchdog secret.

The Commissioner’s decision said this was not a valid reason under S.30 which would have needed to address the actual information itself rather than just the relationship between the two organisations.

He ruled the exemption was not applicable and so therefore did not even go on to consider the Public Interest test.

The force was also criticised over the way it conducted its internal review of the applicant’s request.

The Commissioner said: “The internal review response from the public authority did not reflect that a reconsideration of the request conforming to the description above took place. The Commissioner would advise the public authority that a response giving the outcome to an internal review should state the reasoning for why the initial refusal was upheld and should reflect that there has been a genuine reconsideration of the request.”

You can read the decision notice [here].

WARNING: If you click on this link [here] you will be taken to the Wikipedia site where you will see the image. Please do NOT click here if you are going to be offended/upset.

Sheep exemption gets the chop

Can the pictures be any worse than this?

Back in March I wrote about a case involving Devon and Cornwall Police and a grisly and bizarre case of sheep murder on the moors.

An applicant had asked for details of the investigation, including police photos of the dead sheep, but had been refused under S.30 (investigations). I wrote about the case [here] and the original decision notice from the Commissioner can be found [here].

Well, the case was taken to tribunal by the applicant Mr Michael Freebury and the panel have decided that the photographs can be released.

The S.30 case was put in the Tribunal by Louise Fenwick, the Freedom of Information Officer for Devon and Cornwall Police. She told the Tribunal that “she was cognisant that applications for disclosure of sensitive and confidential information relating to criminal investigations may be made by perpetrators and those directly involved with the crimes they seek disclosure on. Therefore as a general principle she would consider disclosure in unsolved crimes to be prejudicial except in very exceptional circumstances.”

The decision notice went on to say: “Ms Fenwick further attested that, in her view, there would be prejudice flowing from disclosure as it would harm any investigation into the crime in particular and subsequent crimes. The disputed information, she claimed, showed the Constabulary’s modus operandi for the investigation of this crime and this would be the same for other crime and future complaints of ‘sheep deaths’.

“She claimed that the manner in which the sheep met their death was not released into the public domain and that release of such information ‘could seriously jeopardise our ability to detect the offenders for this crime and also to detect any future crime’.”

The key point in this Tribunal was the fact that the applicant was able to bring to the case details of a press cutting from the Western Daily Press, that had not been considered by the Information Commissioner when making the original decision.

Some key passages from the article were reprinted in the Tribunal’s finding.

These were:

• “Six sheep were found with their necks broken and their eyes removed on land at Moortown near the edge of Dartmoor. Four of the their bodies were arranged in a regular square shape, another two were lying next to a pattern of stones.
•  “Our understanding is that this place used to be some sort of meeting place for Pagans,” said a spokesman for the Devon and Cornwall police”.
• The dead sheep, worth £600, were still warm when they were found by their owner………….. on Sunday morning.
• There were the four sheep and then 10ft or 15ft away there were another two, which were laid next to three stones which had been arranged in a pattern” he said.
• The stones looked like a kind of gateway, a similar thing that had been found in January”
• In this case, the eyes were completely removed from the sheep, and there were no signs of the messy pecking that could attribute the loss to an attack by birds.
• Police confirmed that the animals had their necks quickly broken and there were no indications of a prolonged struggle or suffering.
• It is thought that at least two people would have to had to have [sic] been involved, given the sheer physical strength needed for the killing and arranging of the sheep.”

The Tribunal considered this article as key to the case as they stated there was nothing in the police pictures of the dead sheep that had not already been noted in the article.

Therefore it concluded that although the S.30 exemption was engaged the public interest argument was an equal balance between disclosure and non-disclosure. Because the public interest test had equal weight on both sides the law states the information should be disclosed.

You can see a copy of the Tribunal’s findings [here] and an application for the release of the photographs [here].

Police chief’s Deepcut letter to be released

Deepcut army barracks

Surrey Police has been ordered to reveal details from a letter sent to it by a Chief Constable from a different force who had made comments about the way Surrey Police had investigated four controversial deaths at Deepcut Army Barracks.

The letter to Surrey’s Chief Constable had been sent by The Chief Constable of Durham Constabulary, who had written to the public authority in the capacity of the Association of Chief Police Officers (ACPO) lead on the Homicide Working Group.

Surrey claimed the letter was exempt from disclosure under S.30 (Investigations), S.36 (Prejudice to Public Affairs) and S.40 (Personal Information).

It would appear from the decision notice that the letter and another one sent by the same officer within two months of the first were critical of the way Surrey Police had carried out its investigation into the death of the four soldiers.

The Information Commissioner ruled that the S.30 exemption did not apply to the information at all.

A key part of this reasoning was that the letter was tangential to the actual inquiry – and NOT part of it. The decision notice said: “However, section 30(1)(a)(i) specifies information held for the purposes of a relevant investigation; it is not sufficient for information to merely relate to an investigation.”

Surrey Police’s arguments were undermined in this section as well by the fact that a report on the deaths had already been published which was entitled ‘Final Report’. The police attempted to argue the investigation was still open as inquests had recorded open verdicts on the deaths and so as no conclusion had been reached the inquiry was still a live affair.

In conclusion the Commissioner said the information has not at any time been held for the purposes of a relevant investigation and that the police had not put forward an explanation of why the exemption applied to the information. Therefore it was ruled S.30 did not apply and the public interest argument was not considered.

On the topic of S.36 the decision notice states the Surrey Chief Constable acted as the qualified person (QP) to claim the disclosure of the letter would inhibit “free and frank” discussions.

Here the Commissioner appears to be critical of the Chief Constable in that the time put in to assessing the case, and the evidence of this procedure are not shown. The Commissioner states: “That this opinion was sought on the same day as the refusal notice was issued calls into question how thorough a process was undertaken by the Chief Constable when forming his opinion. However, in the absence of evidence that the QP did not give an opinion, even if this opinion was cursory and provided at short notice, the Commissioner accepts that an opinion was given by the QP.”

It was accepted by the Commissioner that part of the S.36 exemption applied but it was ruled the public interest was in favour of disclosure.

The decision notice noted there had already been a number of investigations and reports into the deaths at Deepcut. But like the Commissioner’s ruling relating to CCTV pictures of the July 7 bombers the fact there was no public inquiry had been held helped to tip the scales over in favour of disclosure.

The decision notice reads: “First, the Government has stated that no full public inquiry into the Deepcut deaths will be held. Such an inquiry may well have had a significant reductive effect on the public interest in disclosure. In the absence of such an inquiry, the public interest in disclosure remains significant.

“Secondly, rightly or wrongly and despite the various investigations and reviews, the suspicion that the full facts and causes of the Deepcut deaths have not been disclosed remains. As previously noted, disclosure that would resolve this suspicion would be in the public interest.”

The Commissioner also threw out S.40 claims and has told Surrey Police to release the information concerned – albeit that at late date the scope of what was in the letter that directly related to the request was cut down.

The full decision notice can be viewed [here] and I have asked on WhatDoTheyKnow for the information [here].

Note: It is an interesting distinction between information held for the purposes of an inquiry and those held that relate to an inquiry. Does this mean that a post event inquiry into the competence of an investigation should be immune from S.30 protection?

UPDATE: 18.9.09: Surrey Police are not releasing the information and I have been informed intend taking the case to a Tribunal.

Not just any hold-up…this is an ICO hold-up

Gun crime reports will now be disclosed

The Information Commissioner’s Office (ICO) has at last dealt with the oldest appeal on its desks - a case which it took just under FOUR years to resolve.

On January 12, 2005, an applicant asked West Yorkshire Police for the numbers of illegal firearms the force had seized in the last five years. The requester also asked: “Could I have copies of any reports prepared by, or received by West Yorkshire Police on the issue of gun crime or gun-related crime in the region or which include substantial reference to those issues over the same time period.”

Some information was provided to the applicant but when access to the reports was not forthcoming an appeal was lodged with the ICO on April 29, 2005.

The appeal notice stated that the reports were provided to the applicant in a redacted form but this didn’t satisfy the requestor. The redacted sections were justified by the police by the use of: Section 30 (Criminal Investigations), Section 38 (Health and Safety), Section 40 (Personal Information) and Section 41 (Information Provided in Confidence).

A ruling was made by the ICO in a decision notice [FS5073382] which was dated March 16, 2009 - three years and eleven months after the appeal was lodged.

It states that the redactions due to S.41 were incorrectly applied. The ICO ruled that although some of the information came from third parties it was the police that created the reports, even if some of the conclusions were based on the third party evidence. The ICO stated the exemption was not engaged because the information was not obtained from another party.

In relation to S.30 the ICO ruled there were two types of information - some that related to specific crimes and investigations and secondly data and reports which are an amalgamation of individual crimes. He ruled that the specific crime information was covered by the exemption and the public interest was in favour of the information being withheld. However, he said the more general information was not covered by S.30.

The decision notice says: “the Commissioner considers that the information which relates to patterns of criminal activity in geographical areas, patterns of crime occurrence, intelligence and analysis is not information relating to any specific investigation and therefore cannot be exempt under section 30(1).”

West Yorkshire Police had used S.40 and S.38 to protect the names of people in the report saying that to disclose them would be a breach of their personal data and would expose them to risk. The ICO agreed that it was personal data so didn’t then go on to consider if S.38 had been engaged on not.

The result of four years of waiting was that a total of 47 pieces from the six documents which had been redacted will now have to be disclosed to the applicant.

Police protection from beyond the grave

Police informants will get protection even after they die

Police informants will have their names protected from disclosure even after they have died, an Information Tribunal has ruled.

 

The decision (link) makes clear that police “grasses” need to be guaranteed anonymity beyond the grave or they would never come forward in the first place.

The Tribunal heard evidence from senior officers at the Metropolitan Police Service (MPS) saying that disclosure of the names of informants from the 19^th century still created a knock-on risk to modern-day policing.

The MPS were against releasing the names of the individuals, which were held in old police ledgers, stating the information was exempt from disclosure under S.30 (investigations).

In the original case before the Information Commissioner the MPS had said: “Informants expect their identities to be protected indefinitely. If we are unable to reassure them of total anonymity because of possible release under the Freedom of Information Act, the MPS will not be able to recruit future or sustain current informants.  

“Agreeing to become an agent or informant is a major step of trust often involving the informant taking physical risk, in betrayal of his own country, family, colleagues and sometimes in feelings of shame or guilt.

 “It is difficult to persuade potential agents to take this step and they have to be reassured that no one will ever know what they have done. We believe it is important and that nothing should be done to undermine the confidence of current and potential agents around security and intelligence services keeping identities secret. It would be a major deterrent to some potential agents if they thought their role might be revealed even long after the event.“

The original request for information was made in July 2005 by Mr Alex Butterworth, a historian and author, who was researching European anarchists of the 1880s and 1890s. He knew of the existence of the informants’ ledgers because a Dr L Clutterbuck, a retired Special Branch Officer, had referred to them in his doctoral thesis, completed some years ago, on policing Fenian terrorism.

Roger Pearce, a former Commander of Special Branch, gave evidence to the Tribunal and stated the groups from which informants were drawn were generally subject to an atmosphere of “absolute paranoia”. This strengthened the need to ensure that the necessary element of trust and confidence existed between a handler and the informant.

The Tribunal overturned the Information Commissioner’s original decision that the material should be released stating there was a “overriding if not exceptional public interest” in maintaining the S.30 exemption. It ruled that Mr Butterworth should be able to see the information in the ledgers but that all the names in them should be redacted.

Editor’s note: A strange case here that has taken almost four years to resolve. Much of the MPS’s difficulties in this case were caused by the rather ad-hoc way they had allowed access to documents before the FoI Act came into place. Its arguments were rather undermined in the case before the Commissioner in that they had allowed its former employee access to the documents.

CCTV footage of July 7 bombers to be released

Suicide bombers caught on CCTV

Previously unseen CCTV footage of the July 7 London suicide bombers should be released into the public domain against the wishes of the Metropolitan Police force.

That is the decision of the Information Commissioner who ruled in favour of the Press Association who had appealed the capital’s police force’s decision to try to keep the images secret.

Officials for the Met said the previously unseen images should not be released as they were covered by S.30 (Investigations) and S.38 (Health and Safety).

The Commissioner ruled that S.30 was engaged but that the public interest in disclosure outweighed the maintenance of the exemption. The Met’s argument that S.38 protected the images from disclosure was thrown out by the Commissioner who stated that it did not apply.

Read the rest of this entry »

The grisly case of the sheep on the moors and the photos that’ll turn you mad

Where's Watson when you need him?

A mystery on the moors, local police are baffled, a gruesome maniac disembowelling sheep…… It has all the ingredients of a Sherlock Holmes story, but these are in fact the details of a decision notice issued by the Commissioner that raise a few interesting legal points.

 

The ICO upheld a decision by Devon and Cornwall police to refuse a request which had asked for access to the documents, including veterinary and forensic reports relating to a sheep attack incident in which a number of the animals had been killed.

 

 

 

Eventually the matter rested on a S.30 exemption (investigations) relating to a bundle of evidence in the case which comprised of:

• A log of the initial report of the sheep deaths,
• A record of the steps taken by the public authority in response to the report,
• A witness statement, and
• Photographs of the dead sheep.

Devon and Cornwall police said the public interest was in favour of the maintenance of the exemption saying the release of the information might stop people coming forward with evidence in this case and in others.

Nobody has been charged with the crime – which is logged as ‘criminal damage’ – and the case has been closed, although it could be re-opened if new information comes forward.

Officials at the ICO studied the case and sided with the police saying that the exemption had been correctly applied and that the public interest test was assessed correctly.

"I'm not bleating, but sheep murder = criminal damage. What about my rights?"

Firstly the ICO reiterated the point first set out by the Tribunal in the ‘Jeremy Thorpe case’ [EA/2006/0017] when it considered the double-edged argument of the age of the information relating to S.30.

It stated that obviously as the age of an enquiry goes on the chance of prejudice reduces, but at the same time the age of the matter means the public interest also diminishes. It would appear from the rulings that these two opposing forces reduce at an equal rate – effectively cancelling each other out.

It then leaves us with a determining factor that would appear to be: “Did the investigation lack integrity and probity?” In our sheep on the moors case the ICO seems happy that the police did a good job and so the papers will remain secret.

But I thought the point of FoI was that organisations would be publicly accountable and we could all make our own judgements based on the facts. It would seem from this judgement that somebody within the ICO is setting themselves up as an expert on how police investigations should be conducted and having looked at the papers has given Devon and Cornwall police a clean bill of health. I thought that was a job for the Independent Police Complaints Commission (IPCC).

The logical extension of this judgement is that a request for evidence will only be released if it shows police incompetence, and the ICO has set itself up as the best person to assess that! It begs the question how many former police officers are now working as complaint officers at the ICO to assess with any level of expertise whether an investigation has been carried out with “integrity and probity”.

Also of interest in this decision was the police initially claiming the release of the savaged sheep photos would “have an adverse affect on the community as a whole” suggesting that viewing the images would endanger the mental well being of those who saw them. The ICO rightly said if this was the case then it should have been a S.38 (health and safety) exemption rather than a S.30 exemption.

I have found a couple of news stories (here and here) which I think could be the original incident.