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.

Angry home schoolers cause problems for FoI officers

An interesting letter has emerged through the WhatDoTheyKnow website relating to the Department of Children, Schools and Families (DCSF).

It relates to a concerted campaign of action on behalf of advocates of home education who feel they have been attacked by a report into the subject.

The report – called the Badman Report – after its author Graham Badman looks into suggestions that home educated children may be more vulnerable to abuse than children who are at school.

Those of you who look at WhatDoTheyKnow will be aware of a lot of requests sent into local councils asking for sight of the raw material that was supplied to Mr Badman, which was the basis of his report.

Now a letter from the DCSF to the Information Commissioner’s Office has come to light through a Freedom of Information requests which warns the ICO that the campaign by home education advocates could have a serious effect on the way the department can answer future questions.

It says it has already received around 80 FoI requests on the topic and feels that in the light of threatening posts on the internet it may have to block information citing S.38 (health and safety).

Here is the letter.

Letter to the ICO

What this does show once again is the power of the internet in enabling pressure groups to exert their power to maximum effect.

Because in this case a relatively small, and one would have thought reasonably non-militant pressure group, are threatening to derail a Government department’s FoI responses.

This YouTube video [link] is used as evidence by the DCSF why it may have to impose a S.38 exemption on information.

Commissioner “donuts” his speed camera verdicts

Is this the only hope for a successful Tribunal appeal?

We all know that “Nobody likes a smarta**e” so I will have to be careful as I write the rest of this post but I cannot help myself but say “I told you so”.

The subject in question is speed cameras – a vexed topic – that has since the introduction of the Act seen speed camera partnerships anxious to limit the information people could find out about how they operated.

Central to the argument was the fact authorities clung to the life raft that they called “site-specific” data. This meant that if you asked a question about one specific site you wouldn’t get an answer as it was claimed that this was covered by S.31 (law enforcement) and S.38 (health and safety).

This approach was seemingly backed up by a case I lost against South Yorkshire Police [FS50086169] and Hemsley v Information Commissioner at the Information Tribunal.

But that blanket ban to site-specific data first sprung a leak in Bucks Free Press v Information Commissioner and has now been blown out of the water by a recent decision by the Information Commissioner v Essex Police [FS50222048].

The applicant had asked for how many speeding tickets were issued annually as a result of a camera position on the M11 southbound in Woodford, Essex, just where the carriageway goes from three lanes to two. It has long been suggested that this camera is the busiest in the whole of the UK, but because people could not find out the statistics nobody knows for sure – yet.

Essex Police refused the request arguing S.31 and S.38. It, along with other forces, would claim the release of data might make people more likely to speed if they could make an informed guess at whether a camera was likely to be operational – and that this could lead to an increase in speeding and a resultant rise in accidents.

When the case went to appeal I imagine Essex Police thought the case was pretty watertight considering the rulings that had gone in the past. However, obviously anxious to move in favour of the Tribunal’s position in the Bucks Free Press case the Commissioner has done a 180 degree turn from the South Yorkshire Police case and come out in favour of releasing the information. So I was right all along then!

The Commissioner said in his ruling: “The conclusion of the Commissioner is that the likelihood of prejudice to the prevention or detection of crime through disclosure of the information in question is not real and significant. The exemption provided by section 31(1)(a) is not, therefore, engaged. This conclusion is based on the observations of the Tribunal in Bucks Free Press, the lack of convincing argument from the public authority that the line taken by the Tribunal in that case should not be followed here, or any suggestion based on the content of the information in question that this would reveal an enforcement pattern likely to influence drivers’ behaviour in a manner prejudicial to the prevention of crime.”

On the subject of S.38 he said: “The next step is to consider whether there is a real and significant likelihood of drivers increasing, or failing to reduce, their speed at the location specified in the request as a result of disclosure of the information requested by the complainant. On this point the analysis and conclusion of the Commissioner are the same as set out above in connection with section 31(1)(a); as the Commissioner does not accept that the information in question reveals any pattern of enforcement that would be likely to influence drivers to believe the camera was not active on any given date, neither does the Commissioner believe that the likelihood of endangerment to health and safety resulting through disclosure is real and significant. The exemption provided by section 38(1)(a) and (b) is not, therefore, engaged.”

As the Commissioner ruled neither exemption was engaged he did not even go on to consider if the public interest applied in the case.

One thing I found puzzling was no mention was made of vandalism to speed cameras. I have come in for some criticism after articles I have written about speed cameras have seemed to be the spur for attacks on cameras. However, this point was not brought out by Essex police but if somebody torches the M11 camera soon expect an appeal to be lodged at the Tribunal.

Commissioner’s ruling on airport security

Does Bin-Laden worry about whether he put enough money in the meter?

A row over terrorism and airport parking tickets has had to be settled by the Information Commissioner.

The Metropolitan Police force refused to reveal if it held records on the number of cars ticketed or towed away from a road at Heathrow Airport.

The police claimed that to reveal if it held the information could be useful to terrorists. But the Information Commissioner has now ruled against the Met and has told the force it has to say if it holds the records.

It is still open to the Met to try to refuse revealing the information – but now it has to at least admit if it holds the data – and can no longer refuse to confirm or deny whether it holds it.

In the ruling the Met claimed it was free to neither confirm or deny it held the information because of S.31 (Law Enforcement).

The decision notice said: “the public authority stated its stance related to the pattern of enforcement that it believed would be revealed through confirmation or denial.

“It believed that any site where it was revealed that police monitoring was not regular would become a more attractive site to terrorists planning attacks using vehicles.

“The argument of the public authority is that the pattern of police monitoring and traffic enforcement that would be revealed through this and other future, similar requests would provide information that would assist in the planning of terrorist attacks.”

Giving his decision the Information Commissioner said: “The Commissioner does not accept that confirmation or denial in response to this request would reveal information about police monitoring or enforcement that would be prejudicial in the way that the public authority has suggested.

“Neither does the Commissioner accept that differing confirmation or denial responses to a number of similar requests made about other areas close to airports would reveal any differences in the policing of these areas. This means that the Commissioner also does not accept that confirmation or denial would provide information of use to terrorists.”

NOTE: This is an interesting decision in that it has many similarities to the on-going rows about site specific speed camera data. In the case of speed cameras public authorities never, to my knowledge, opted for the ‘neither confirm or deny’ strategy but instead focused on S.31 and S.38 (health and safety).

But the arguments used by the police in this case are very similar in that to give out specific data for one location could lead to assumptions being made about other locations. So that if you work out where resources are being deployed in strength you can work out where the weaknesses in the system are.

However, it would appear that the applicant for this information will be faced with a long haul for the information. I imagine the Met will now exempt the information under S.31 and if the applicant can be bothered it will take its place again in the Commissioner’s queue of unresolved cases.

I have written about ‘neither confirm or deny’ previously. [Are you free to say nothing?]

You can see the decision notice here. [link]

Working on the chain gang…..

Paul enjoys a life in the sunshine rather than the 'hell' of the jail's Information Governance team.

The Ministry of Justice has suffered an embarrassing failure to uphold the S.43 (Commercial Interests) exemption in a dispute over contracts for prison labour.

Although chain gangs may be a thing of the past prisoners in England do have jobs for commercial organisations managed through the jails where they are held.

An attempt by a Freedom of Information requester to find out who these contracts were with and how much they were worth was rebuffed by the Ministry of Justice (MoJ) on the basis that the data was subject to S.43.

The Information Commissioner was eventually called in to rule on two parallel appeals on the subject, one relating to ten prisons and the other relating to eight jails.

In both cases the Commissioner ruled that S.43 should not have applied to the information and so didn’t even have to go on to consider the public interest test.

He also made critical comments about the amount of time the MoJ took to deal with the internal reviews in both cases – more than 190 working days in one of the cases and more than 250 working days in the other.

On the topic of S.43 the public authority stated in its internal review notice that: “… the likely consequences of the identification of companies holding contracts with prisons will include loss of business, lay-offs of workers, becoming the subjects of campaigns against the use of prison labour and adverse publicity, all of which we feel would prejudice commercial interests, as has happened in other cases.”

It also claimed that in one case the end customers did not know it was prisoners who were the labour force behind the product and if they found out they might cancel the contract.

A whole host of arguments were put forward by the MoJ in an attempt to justify the S.43 exemption. It claimed the prisons could lose money if contracts were cancelled, the contractors would be put at a disadvantage to competitors, and contractors might have to lay off non-prison staff.

However, the Information Commissioner ruled against all these arguments and said the exemption was not even engaged, especially as the information requested was not particularly specific in terms of the actual contract, such as the number of prisoners employed etc.

Although the MoJ did not rely on S.38 (health and safety) the Information Commissioner went on to consider it, in relation to non-prisoner employees of a company using jail labour.

The Commissioner said: “Whilst the Commissioner understands that a contractor has a duty of care to its staff and notes its concerns, he can find no evidence to support its stance that its staff may be put at risk by disclosure of the information requested in this case in particular, or by public knowledge of its involvement with prison labour in general. Although there is information available on-line to suggest that a well known retailer was targeted by parties who were against the association they claimed it had with prison workers, there is nothing to suggest that any harm or damage was done to its staff. There were a number of demonstrations, along with picketing and leafleting, and although it appears that some persons were ‘moved on’ by the police the Commissioner can find nothing to suggest that there was any further action than this.”

A group called Campaign Against Prison Slavery says inmates get paid around 30p an hour and have compiled a list of companies with contracts with jails in England [here] and Scotland [here] .

I have asked the Ministry of Justice to provide me with the details that should now be released and you can see the question [here] on WhatDoTheyKnow.

And the two decision notices can be seen [here] (relating to eight prisons) and [here] (relating to ten jails) .

This request was sent in by journalist Phil Chamberlain (see the comment) who has blogged about this topic [here] where you will find a link to articles on the Guardian as well as his own website devoted to investigating prison labour [link] .

Ministry of Defence: The Information Commissioner has issued a Practice Recommendation [link] critical of the time taken by the MoD to complete an internal review. The MoD seems to have particularly annoyed the Commissioner in that it has taken 40 working days as its target for dealing with internal appeals when this figure is in fact an exceptional allowance – the normal figure being 20 days. However, even using the 40 day limit statistics from the MoD showed 60% of appeals were not dealt with by the expanded timeframe, and in one case a requester had to wait 190 working days for an internal review to be resolved.

Wrong, wrong, wrong..

Who was supposed to be packing the passport?

The Metropolitan Police Service (MPS) have been given a public rebuke from the Information Commissioner’s Office for taking 100 days to carry out an internal review relating to a request concerning Cherie Blair.

The applicant had asked for information the MPS held on an incident when the former Prime Minister’s wife turned up at Heathrow without her passport and then contacted No.10 to get the document couriered to the airport. (link)

Initially the MPS had refused the request for information claiming it was covered by S.24 (National Security), S.31 (Law enforcement) and S.38 (Health and Safety).

But after the Information Commissioner got involved the MPS admitted that the limited information it did hold - a short press statement - was not covered by the exemptions.

However, the Commissioner explored the case and found the complainant had asked the MPS for an internal review on 16 March 2006 and had to wait more than five months, until 21 August 2006 for the MPS to confirm its refusal.

In the decision notice the MPS is taken to task for:

• Belatedly finding information that should have been disclosed,
• Only undertaking a thorough search for information after the intervention of the Commissioner,
• Taking 90 days to issue its initial refusal notice,
• Incorrectly stating that the information was covered by three exemptions, and failing to state which subsections of the exemptions it thought were applicable,
• Taking over a 100 days to carry out an internal review which upheld its own incorrect view, which was later retracted after the intervention of the Commissioner.

The Information Commissioner said in his decision notice that the MPS breached Section 1, Section 10 and Section 17 of the Act.

He said: “The Commissioner remains concerned that it took over 100 working days for an internal review to be completed.”

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.

You’ll have to Imagine what’s in my files

What would John have made of the use of S.23 combined with S.24

The Metropolitan Police Service (MPS) has received a dressing down over the way it dealt with a Freedom of Information request relating to files it holds on John Lennon.

A recent decision notice (link) from the Information Commissioner raps the MPS for failing to deal with the request properly and not coming up with any justification for the exemptions it claimed related to the material.

The saga began in September 2006 when a woman asked for all the information from the John Lennon files which were held by Special Branch. The former Beatle, who was shot by a crazed fan in New York 25 years ago, was known to have been on the radar of the security services in the 1960s because of his left-wing views.

MPS decision makers refused to confirm or deny if it held the information claiming it would be covered by S.23 (information to security bodies), S.24 (national security), S.31 (law enforcement), S.38 (health and safety) and S.40 (personal information).

In a damning verdict of the way the MPS processed the request the Information Commissioner has now ordered the force to state if it holds the information.

The Information Commissioner says: “In the absence of any explanation from the public authority, either at the refusal notice or internal review stage, or in its correspondence with the Commissioner, as to its reasoning for why these exemptions are engaged or, in relation to why the public interest favours the maintenance of these exemptions….. the Commissioner concludes that these exemptions are not engaged.

“The Commissioner also finds that the public authority failed to comply with procedural requirements……… through its inadequate handling of the request. The public authority is required……. to provide a confirmation or denial of whether it holds information falling within the scope of the request.”

The decision notice makes clear that just because the material in question is held by a security force does not necessarily mean that it is covered by S.23 or S.24. The MPS had four opportunities to explain why the information was covered by the exemptions but did not appear to make an attempt to provide a reasoning for its decision, the Information Commissioner said.

Click here for YouTube footage of the news reports from the day Lennon was shot.

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.