Why We Are Hurtling Towards Lawlessness, Courtesy of HMG and The Press

Over the last 24 hours I have read, reread and reread again this article in the Daily Fail;

The first thing (but not the most serious by any means) was the bold assertion that the Police had ‘hacked’ the phones of journalists. We all know what is meant by ‘hacking phones’ thanks to various assorted members of the press themselves.

Is this really what the Police are doing?

NO.

The second thing that peeved me was the assertion that RIPA is an Anti-Terrorist law, it is not. I would imagine that Terrorism forms a small percentage of RIPA applications. If you want to know the TRUTH about the sort of things that RIPA covers look here.

What the Police are doing, whether you think it’s right or wrong, is making an application under the Regulation of Investigatory Powers Act (RIPA) for an itemised phone bill for a specified phone number.

I agree that it is possible to abuse this process, much like any other regulated procedure, politicians expenses for example, but this is clearly wrong and such cases would, in my opinion, form the absolute minority of applications submitted. All applications are written and the original copy is retained for future accountability purposes.

Not one single itemised phone bill can lawfully be supplied by the phone companies without such an application.

So, in attempt to appease the whiter than white journalists, the whiter than white politicians, led by Imelda May, are now proposing to change RIPA meaning that all such applications would need to be authorised by a Judge.

The sheer volume of such requests that are made across the UK every year means that Judges would be bogged down with RIPA applications.

The likely result of that is that most would be rejected, or not even make it to the Judge in the first place.

These applications currently have to be authorised by a senior officer, they have to be proportionate to the gravity of the offence being investigated and have to be ‘targeted’ i.e. they can’t be part of a ‘fishing expedition’.

So, in order to appease the journos, Imelda will be tying one hand behind the back of every officer who is investigating something. Armed Robbers, Drug Dealers, Terrorists even, must be rubbing their hands in glee as it will now be made more difficult to gain evidence or intelligence on their activities and associates.

Surely it would be better to restrict your interference to ensuring rigidly that the requirements of RIPA are complied with, applications correctly compiled, submitted, authorised and retained for accountability.

Why would you weaken the Police Arsenal at a time like this, you’ve already nicked 16,000 of them, why take their powers away as well?

Be careful what you wish for journos, you might just get it.

The Truth Has A Habit Of Emerging When Least Convenient

I was sitting in Angry Towers this morning mulling over recent events and it occurred to me that one of the biggest problems we have at the moment is TRUTH.

I most certainly don’t have a problem with truth at all, in fact I frequently urge that the truth be told, as in the ongoing #Crimestats disgrace.  The problem with the truth is that it refuses to be buried, it keeps on popping it’s head up shouting “I’m over here” at the most inconvenient times. If you’re really unlucky it will leap up and bite yer bum.

In the past few months and years we have had several instances of the truth getting in the way of a good story.

Crimestats – I won’t bore you too much with that, it’s still current, but even Bernie Hogan-Who admitted that there was a truth to James Patrick’s revelations and that it needed to be heard.  It needed to be heard so much that, instead of making James part of the Working Party studying and rectifying the problem, they forced him out of his chosen career. I for one want to hear the TRUE situation with Crime Figures, not a manipulated version to suit the bonus culture which seems to have crept in to some senior officers careers.

Interestingly I refound this:- Tom Winsor (NEVER a Police Officer), who  is leading an inquiry into crime statistics, told the HASC committee he was in no doubt it would uncover “some fiddling of the figures”.  Lord Stevens (previous Met Commissioner) said “fiddling of figures” has been going on since he joined the police. A slight difference there.

The Lawrence & Morgan enquiries– the truth that at least one corrupt officer may have compromised one or both of these murder investigations making it difficult or impossible to secure a just conviction.

The Blakelock Investigation – His murder was followed by three extraordinary police investigations. The first, headed by Det Chief Supt Graham Melvin, resulted in the prosecution of three youths, and three men. But the tactics were described in court as having more in “common with a witch-hunt of the 17th century than an orthodox attempt to solve a murder” after youths were questioned without legal representatives.

Without forensic evidence or CCTV pictures, it relied on confessions and witness statements. “You ain’t got enough evidence,” one of the accused and the alleged ringleader, Winston Silcott, was alleged to have told the senior officer during an interview. “Those kids will never go to court. You wait and see. No one else will talk to you. You can’t keep me away from them.”

Silcott, Mark Braithwaite and Engin Raghip were convicted of murder but scientific tests later revealed that the notes from the key interview with Mr Silcott – which were not routinely recorded – had been tampered with. Based on the findings, the so-called “Tottenham Three” were cleared in 1991, reigniting feelings of resentment and mistrust between the police and the black community.

A second innovative murder inquiry, headed by Commander Perry Nove from an outside force the following year, offered lifetime immunity to witnesses who were “kickers” in the attack rather than “stabbers” if they cooperated with police. But  the Nove inquiry did not lead to anyone being charged over the killing on the advice of a senior barrister. The inquiry ended when Det Chief Supt Melvin and another senior investigator, Det Insp Maxwell Dingle, were put on trial for allegedly tampering with a witness statement. They were cleared by a jury.

Hillsborough – an independent panel laid bare a cover-up which attempted to shift the blame for the tragedy onto its victims. It revealed operational failures as well as the fact that the victims were not exceptionally drunk, as was originally suggested, and around half could have survived.

The list goes on and on, I am not going to document them all here.  What screams out loud and clear is this;

There are laws and procedures for dealing with all investigations on every scale.  If they are followed, you may not get the result you are after, but the truth will not pop up and bite you in the arse when you are least expecting it.  Let truth be your friend, let it work FOR you, not AGAINST you.

integrity non negotiable

RIPA and how the Police Service makes sure it’s silent

You will no doubt be familiar by now with my blogs on the subject of RIPA (Regulation of Investigatory Powers Act 2000) and my attempts to use the Freedom of Information Act to obtain some kind of insight into how Police Forces may be using RIPA to monitor their officers’ use of social media (SM).  So far I have not been very successful and this has led me to abandon my use of the Freedom of Information Act because it has turned into a Head vs Brick Wall scenario.  I have, however, vowed to monitor and pursue my requests which are still outstanding.

This blog will very likely be my last on the subject of RIPA and I apologise in advance that it is not interspersed with humour.  It will most likely be a bit dry and technical, but I’ve reached the stage of this particular rant where humour isn’t really appropriate.

If you are new to this subject you can find my previous blogs on this subject as follows;

Social Media, the Police and RIPA – #TheRestIsSilence

Social Media, The State and Interception #TheRestIsSilence

The Departments of Professional Standards and RIPA #TheRestIsSilence

The Departments of Professional Standards and RIPA – #TheRestIsUnbelievablySilent

‘They’ Have Won – I Am Defeated

In the last few days I have received responses from West Midlands Police and the Met in reply to my requests for an Internal Review of their Refusals to answer my questions relating to their use of RIPA.

If any of you AGREE with their refusals please let me know so that I can stop banging my head against this particular brick wall with a clear conscience.

I have already written to the Information Commissioner about Dyffed-Powys’s refusal to, in any way, answer my request.  I await their response.

West Midlands have issued the much anticipated confirmation that they have reviewed their response to my request and that their original Refusal Notice stands.

The Met (MPS) too have confirmed their original refusal, but much, much more comprehensively.   The main difference being that it includes an apology for a breach of the Freedom of Information Act for not replying to me originally within the prescribed timescale.

I did think, however, that since all of this is now in the public domain, I would share some of their eloquent prose with you and please, please let me know whether you agree with them or not.  If sufficient of you disagree with the MPS I may find the strength to write another Victor Meldrew letter to the Information Commissioner.

So sit comfortably, buckle up, and here goes;

“The Metropolitan Police Service (MPS) has completed its review and has decided to vary the original decision by upholding the original exemptions stated (section 23(5) – Information supplied by, or concerning, certain Security bodies; section 44(2) – Prohibitions on disclosure, section 30(3) Investigations and proceedings conducted by a public authority, section 40(5) Personal Information) and additionally engage section 31(3) – Law enforcement of the Freedom of Information Act 2000 (FoIA).”

So there’s the first thing, I ask for a Review and their response is to ADD one more reason why they shouldn’t even answer.

“I would like to apologise for the delay to your request and for any inconvenience caused by our failure to process it correctly.  I hope to reassure you that the MPS takes compliance with the Act very seriously and is committed to promoting good practice in this area.”

Very good of them I’m sure.

“The review acknowledges your comment ‘Questions 1, 3 and 4 only require a number as their answer, and Question 2 only requires a Schedule of Offences’. With this in mind it is the potential value of the number in the public domain that must be considered and in this context the number may be significant.

Anyone know how a number might be significant?

“The review gives attention to your comment ‘I do not accept that this is a valid arguement for refusing to Confirm/Deny and Refusal as I specifically aimed my request at 2011 with the clear intention of avoiding such a problem as ongoing, current investigations. I most certainly would not want to be responsible for alerting an officer to the possible investigation of his/her activities, and so chose a date which should contain no current investigations.’ and as stated in the original response that section 1(1) (a) of FoIA requires a public authority to inform a requestor whether it holds the information specified in the request.  This is known as the ‘the duty to confirm or deny’.  The Information Commissioner’s Office (ICO) guidance states ‘there may be occasions when complying with the duty to confirm or deny under section 1(1)(a) would itself disclose sensitive or potentially damaging information that falls under an exemption…in these circumstances the Act allows a public authority to respond by refusing to confirm or deny whether it holds the requested information.  This is called a ‘neither confirm nor deny’ (NCND) response.’  Further reference can be found by way of this link:
http://www.ico.gov.uk/for_organisations/…

Again MPS I don’t see how “there may be occasions when complying with the duty to confirm or deny under section 1(1)(a) would itself disclose sensitive or potentially damaging information that falls under an exemption..” is relevant.  What you really mean is that you don’t want the great British Public to know whether you utilise RIPA to investigate your officers or not.  I see no valid reason for withholding the information I have requested.

“The ICO further reminds public authorities that they can only refuse to confirm or deny whether it holds the information, ‘if this would itself reveal information that falls under an exemption’.  In this case the MPS has neither confirmed nor denied information is or is not held by virtue of sections 23(5), 30(3), 44(2) and 40(5).”

Psychobabble.

“Section 23(5) of the FoIA states that: The duty to confirm or deny does not arise if, or to the extent that, compliance with section1 (1) (a) would involve the disclosure of any information (whether or not already recorded) which was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).  The full list of bodies specified in section 23(3) can be viewed by way of this link http://www.legislation.gov.uk/ukpga/2000…

In a recent Information Commissioner’s Office (ICO) Decision Notice FS50443643
http://www.ico.gov.uk/~/media/documents/…
the Commissioner’s opinion was that ‘the exemption contained at section 23(5) should be interpreted so that it is only necessary for a public authority to show that either confirmation or denial as to whether the requested information is held would involve the disclosure of information relating to a security body.  It is not necessary for a public authority to demonstrate that both responses would disclose such information.  Whether or not a security body is interested or involved in a particular issue is in itself information relating to a security body.’

In FS50443643 the ICO states ‘…it can be seen that section 23(5) has a very wide application. If the information requested is within what could be described as the ambit of security bodies’ operations, section 23(5) is likely to apply.  This is consistent with the scheme of FOIA because the security bodies themselves are not subject to its provisions. Factors indicating whether a request is of this nature will include the functions of the public authority receiving the request, the subject area to which the request relates and the actual wording of the request.’

With these considerations in mind, the review is satisfied that section 23(5) is appropriately engaged in this case.”

A superb Get Out Of Jail Free Card is it not?  To confirm or deny might reveal whether we do or do not hold any information that may or may not have been  supplied by Security Services etc, so we don’t have to answer you.  Brilliant.

“The review has regard for your comment ‘RIPA should only be used in cases of alleged Crime. If Police Officers are involved in the commission of crimes this is of public interest and why should the police service not be held to account? I do not see this as a valid reason for not Confirming/Denying and Refusing my request…Yet again the information that I am actually requesting would in no way identify resources available, it is not a closely guarded secret that people’s Twitter or Facebook accounts can be monitored by almost anyone, so there are no secrets to be divulged by answering the question.’ And can advise you that section 30(3) of the FoIA states the duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1) or (2).

The ICO has published guidance on the exemption for criminal investigations and proceedings  (which can be found by way of this link:
http://www.ico.gov.uk/for_organisations/…

This guidance states ‘section 30 creates an exemption for information:

·        Which is or has been held for the purposes of a criminal investigation;

·        Which is or has been held for criminal proceedings conducted by a public authority; or,

·        Which was obtained or recorded for various investigative functions and relates to the obtaining of information from confidential sources.’

The ICO advises ‘before complying with section 1(1)(a) public authorities should consider both whether any harm would arise from confirming that information is held and whether harm would arise from stating that no information is held. Otherwise, if the same (or same type of) requests were made on several occasions, a changing response could reveal whether information was held.’ And in this respect the review gives attention to the initial MPS response which states ‘the MPS will not divulge whether information is or is not held if to do so would undermine ongoing investigations…there is a very strong public interest in safeguarding the integrity of police investigations and operations.’

With these considerations in mind, the review is satisfied that section 30(3) is appropriately engaged in this case.”

Am I just being thick here or does this exemption mean that Crime Figures should actually be exempt from release to the public by virtue of the reasons above, or are the MPS merely trying to hide behind a tenuous exemption?

“The review acknowledges your comments ‘Once again I am not requesting details of methodology, merely a numerical response and a Schedule of Offences. I require no further information than that. I fail to see how this would compromise anything… Once again the information that I have requested, if supplied, would not dissuade anyone from supplying information to the police as it is only a number and a Schedule of Offences that I have requested.’ and in this respect is satisfied that by confirming or denying such information is or is not held would be detrimental to the function of law enforcement in the prevention and detection of crime, by providing those individuals who would wish to cause harm with invaluable intelligence and, as a consequence, making it more difficult for the MPS to police effectively.  This adverse effect was highlighted in the original response namely ‘to disclose investigative information could dissuade people from providing information to the police in the future thus reducing the flow of information to the service…’ thereby hampering our law enforcement functions.

With these considerations in mind, the review is satisfied that section 31(3) is appropriately engaged in this case.”

Could someone please explain this response to me.  How on earth would answering my questions dissuade law-abiding citizens from providing the Police with information and/or hamper the investigation of crime?

“Is the requested information personal data?

The review has regard for your comment ‘Once again, I am only requesting numbers and a Schedule of Offences relating to 2011. I am absolutely certain that any fully trained officers are aware of RIPA and the possible use of RIPA against them should the circumstances dictate.’ And can advise that Personal data is defined in section 1(1) of the Data Protection Act 1998 (DPA) as:

‘data which relate to a living individual who can be identified from those data, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intention of the data controller or any other person in respect of the individual.’

You have requested information in relation to how many RIPA applications were made by members of your Force in relation to Police Officers’ use of Social Media or e-mail and that they are the focus of the information which would be revealed.  The review is therefore satisfied that the requested information is personal data within the meaning of section 1(1) of the DPA. The review is satisfied that confirming or denying whether the MPS holds the requested information would reveal personal data.  The result of any searches including the absence of any data would reveal information about individuals.

Would complying with section 1(1)(a) contravene any of the Data Protection Principles?

Section 1(1)(a) FoIA states ‘any person making a request for information to a public authority is entitled (a) to be informed in writing by the public authority whether it holds information of the description specified in the request.’

For section 40(5)(b)(i) FoIA to apply, complying with the duty under section 1(1)(a) must reveal personal data and contravene any of the data protection principles. The MPS has found that the first data protection principle to be the relevant in this case, which states ‘Personal data shall be processed fairly and lawfully and in particular shall not be processed unless a) at least one of the conditions in DPA schedule 2 is met, and b) in the case of sensitive personal data, at least one of the conditions in schedule 3 is also met’.

The review is also mindful of the legislation under section 2 DPA which defines ‘sensitive personal data’ as personal data consisting of information as to (g) the commission or alleged commission by him of any offence. http://www.legislation.gov.uk/ukpga/1998…. The nature of the information being requested by you, if held, is therefore likely to fall into the category of ‘sensitive personal information’ category and/or enable such inferences to be made. Therefore, any statement confirming or denying whether this information is or is not held could disclose sensitive personal data either in isolation or when combined with other information which may be in the public domain.

The ICO further states ‘There may be circumstances, for example requests for information about criminal investigations or disciplinary records, in which simply to confirm whether or not a public authority holds that personal data about an individual can itself reveal something about that individual. To either confirm or deny that the information is held could indicate that a person is or is not the subject of a criminal investigation or a disciplinary process. If to do so would contravene data protection principles, for example because it would be unfair, then the public authority is not obliged to confirm or deny that it holds the information.’ Further details can be found by way of this link http://www.ico.gov.uk/for_organisations/…

With these considerations in mind, the review is satisfied that section 40(5) is appropriately engaged in this case.”

Genius!!  So now a simple number is regarded as Sensitive Personal Information.  Once again that must mean that half the stats that are issued must be sensitive personal information as the numbers relate to people somewhere along the line.   I fail to see how giving me a number will assist me in identifying individual officers (unless the answer is ONE) and it is not my intention to identify individual officers anyway.

“Section 44 – Prohibitions on disclosure

Section 44(2) states the duty to confirm or deny does not arise if the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) fall within any paragraph (a) to (c) of subsection (1), namely (a) is prohibited by or under any enactment, (b) is incompatible with any Community obligation, or (c) would constitute or be punishable as a contempt of court.

The ICO guidance clarifies that ‘section 44(2) provides an exemption from the duty to confirm or deny whether information is held. It may, on rare occasions, be necessary neither to confirm nor deny that information is held if this is a requirement under other legislation, or under certain conditions or processes as specified in s44…although the number of occasions when a public authority will be justified in neither confirming nor denying that it holds information requested may not be very large, the Act acknowledges that such occasions may arise.’

In this respect the review takes account of the original MPS response which mentions ‘under Chapter 1 of part 1 of the RIPA legislation, it may actually be a criminal offence to do so (Section 19)’ and can advise that section 19 Regulation of Investigatory Powers Act 2000 (RIPA) creates an offence for unauthorised disclosures as follows:

(1) Where an interception warrant has been issued or renewed, it shall be the duty of every person falling within subsection (2) to keep secret all the matters mentioned in subsection (3).

(2)The persons falling within this subsection are—

(a) the persons specified in section 6(2);
(b) every person holding office under the Crown;
(c) every member of the staff of the Serious Organised Crime Agency;]
(ca) every member of the Scottish Crime and Drug Enforcement Agency;]
(e) every person employed by or for the purposes of a police force;
(f) persons providing postal services or employed for the purposes of any business of providing such a service;
(g) persons providing public telecommunications services or employed for the purposes of any business of providing such a service;
(h) persons having control of the whole or any part of a telecommunication system located wholly or partly in the United Kingdom.

(3)Those matters are—

(a) the existence and contents of the warrant and of any section 8(4) certificate in relation to the warrant;
(b) the details of the issue of the warrant and of any renewal or modification of the warrant or of any such certificate;
(c) the existence and contents of any requirement to provide assistance with giving effect to the warrant;
(d) the steps taken in pursuance of the warrant or of any such requirement; and
(e) everything in the intercepted material, together with any related communications data.”

At last, the first part of their Refusal that I can actually understand and agree with.  In the light of this exemption I shall draw my own conclusions.

#TheRestIsSilence.

Once again I must apologise for the length of this post, I hope you have found it worthwhile.

Big Brother is watching you…. and so are his corporate partners

More thoughts on RIPA, Internet Surveillance and State Monitoring of Social Media #TheRestIsSilence

The Internet is a surveillance device as defined by RIPA section 48(1). Surveillance is covert “if, and only if, it is conducted in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is, or may be taking place.”

“As with ANPR and CCTV, it is inappropriate to define surveillance solely by reference to the device used; the act of surveillance is the primary consideration and this is defined by RIPA section 48(2-4) (monitoring, observing, listening and recording by or with the assistance of a surveillance device).”

Annual Report of the Chief Surveillance Commissioner to the Prime Minister and to Scottish Ministers for 2011-2012

Paul Bernal's Blog

big-brother-is-watching-you_thumbnaPrivacy advocates are spoilt for choice these days about what to complain about – privacy invasions by business, or privacy invasions by the authorities? Over the last year or so, I’ve written regularly about both – whether it be my seemingly endless posts in recent weeks about Facebook, or the many times I wrote last year about the wonderful Snoopers’ Charter – our Communications Data Bill (which is due to re-emerge after its humiliation fairly shortly).

It’s a hard one to answer – and I tend to oscillate between the two in terms of which I think is more worrying, more of a threat. And then a new story comes along to remind me that it isn’t either on its own that we should be really worried about – it’s when the two work together. Another such story has just come to light, this time in The Guardian

“Raytheon’s Riot…

View original post 592 more words

I Have Had Enough, War Has Been Declared

Sorry folks this is the ongoing RIPA saga.  I received my most recent refusal today, and once again it was so similar in the way it was worded that there HAS TO BE A POLICY been drawn up somewhere as to how Forces will fob people like me off.  And Fobbed Off I have been.  I can only assume that this policy was drawn up by ACPO or the Association of Police Authorities before the advent of PCCs.

In order not to absolutely bore you to death it has been suggested by my reader that I reproduce just TWO of the replies in full so that you can see just how similar they are and provide hyperlinks to the other three.  I don’t really want to bog this blog down but all joking aside it feels like there’s an important issue here, absolutely current and relevant to some of our number who find themselves under investigation or subject to Words of Advice regarding their participation in the world we know as Twitter.

I originally wrote to Dorset, Dyfed-Powys, West Midlands and the Met.  I subsequently added South Yorkshire and West Yorkshire to the list.  To date I have received 5 of the 6 replies.

Today’s (and the most recent) response came from South Yorkshire.  It read as follows;

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?
RESPONSE
Section 1 of the Freedom of Information Act 2000 (FOIA) places two duties on public authorities. Unless exemptions apply, the first duty at Sec1(1)(a) is to confirm or deny whether the information specified in a request is held. The second duty at Sec1(1)(b) is to disclose information that has been confirmed as being held. Where exemptions are relied upon s17 of FOIA 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.
South Yorkshire Police can neither confirm nor deny that it holds the information you requested as the duty in s1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:
Section 44(2) Prohibitions on Disclosure
Section 23(5) Information relating to the Security bodies;
Section 30(3) Investigations;
Section 31(3) Law enforcement;
Section 40(5) Personal information
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, (except for Section 40(5)
Sections 30(3) and 31(3) are qualified and require us to carry out a public interest balancing test before they can be relied upon.
Overall harm for Neither Confirm nor Deny
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.
Public Interest Test
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 – SYP 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 our opinion that for these issues the balance test for confirmation or denial is not made out.
None of the above can be viewed as an inference that any other information does or does not exist.

Compare that to the reply I received from Dyfed-Powys Police (who incidentally protected their response against Copying and Pasting, causing me to waste much time finding out how to Copy and Paste it, but it’s here, so I must have managed it);

FOI Reference: 617/2012
Request:
Could you please provide me with the following information under the terms of the Freedom of Information Act 2000?
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?
Responses 1-4:
Section 1 of the Freedom of Information Act 2000 (FOIA) places two duties on public authorities. Unless exemptions apply, the first duty at Section 1(1)(a) is to confirm or deny whether the information specified in a request is held. The second duty at Section 1(1)(b) is to disclose information that has been confirmed as being held.

Where exemptions are relied upon Section 17 of the Freedom of Information 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. The Dyfed Powys Police Service can neither confirm nor deny that it holds the information you requested as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:
Section 23(5) Information supplied by, or concerning, certain Security bodies Section 30(3) Investigations and Proceedings conducted by Public Authorities Section 31(3) Law Enforcement Section 40(5) Personal Information Section 44(2) Information covered by Prohibitions on Disclosure
Sections 44(2), 23(5) and 40(5) 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, (except for Section 40(5)).

Sections 30(3) and 31(3) are qualified exemptions and require us to carry out a public interest balancing test before they can be relied upon.
Overall Harm for the Neither Confirm nor Deny (NCND)

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 on-going 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 on-going 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 Professional Standards Department (PSD) 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.

Public Interest Test
Factors favouring confirmation or denial for Section 30

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 Section 30
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.
Factors favouring confirmation or denial for Section 31
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 Section 31
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.
Section 40(5) Personal Information
The duty to neither confirm or deny under this section of the Act arises where the disclosure of the information into the public domain would contravene any of the data protection principles or Section 10 of the Data Protection Act 1998 or would do so if the exemptions in Section 33A(1) of that Act were disregarded.
Disclosure under Freedom of Information is a release of information to the world in general and not an individual applicant. Therefore, simply confirming or not that such information were held would disclose personal information about individuals. As such any disclosure that identifies an individual or identifies that an individual has had contact with Dyfed Powys Police or not is exempt and would be a clear breach of principle 1 of the Data Protection Act. Personal data is defined under Section 1(1)(e) of the Data Protection Act (1998) as:
“… Data which relate to a living individual who can be identified-
(a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.” In this case, the confirmation or denial of the existence of information (if any) would breach Principle One of the Data Protection Act (details of which are provided below).
Principle One:
“Personal data shall be processed fairly and lawfully and in particular shall not be processed unless
(a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data at least one of the conditions in Schedule 3 is also met.”
Balance Test
The Police Service will not divulge whether information is or is not held if to do so would undermine on-going 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 nor 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 our opinion that for these issues the balance test for confirmation or denial is not made out.
None of the above can be viewed as an inference that any information does or does not exist.

The other three responses can be found here (Met) , here (West Midlands) and here (Dorset)

In my view Federation Offices in England and Wales, together with anyone who may be subject to scrutiny over their Twitter antics should take note of this.  These a re most definitely NOT 5 individual responses, separately drafted in response to my question.  This is a very measured response, calculated to deter folk like me from asking tricky questions.  As I have said before the clue is in the title of the Act, FREEDOM OF INFORMATION ACT 2000, and it’s about time Police Forces and Government Departments accepted that it’s here, people WILL use because of the lack of transparency in all Authorities and instead of looking ridiculous with their corporate heads in the sand, they should INDIVIDUALLY deal with enquiries that come within the spirit of the Act.

I have appealed against 4 of the above Forces, I see no reason not to appeal against the 5th and I have reported another Force to the Information Commissioner on a different matter entirely.

I am only one man with one voice and one quill, but I hope it does some good somewhere, but I fear that it will do no good whatsoever until a sea-change revision of the way in which our enquiries are handled takes place.  It seems to me that instead of just answering the question, even very mundane, non-contentious enquiries are met with “Right, we won’t answer that one until after the time limit has expired”  or “If he thinks he’s getting an answer to that he can think again”  It’s not a Can Do Mentality it’s a How Can We Not Do This Mentality

Social Media, the Police and RIPA – #TheRestIsSilence

This subject is currently a hot potato, a VERY hot potato.

There has been much conjecture, anecdotal evidence, fact and fiction spread around Twitter in recent months about Police use of Social Media and the real or potential repercussions of it.  Now we have one of own, Constable James Patrick of the Metropolitan Police Service who seems to have upset the Service management and has been served discipline papers for alleged Gross Misconduct.

Let me say now that I have absolutely no idea whether RIPA, or the Regulation of Investigatory Powers Act 2000, has played any part in this process, and the purpose of this blog is not to concentrate on individual, ongoing disciplinary proceedings.  My curiosity is roused by the bigger picture and whether the Police Forces of England and Wales are utilising powers vested by RIPA in conducting their disciplinary investigations against serving Police Officers in relation to their use of Social Media.

For the benefit of non-Police readers I will attempt to make some kind of sense out of RIPA for you.

In order to have a ‘good old fashioned look’ at what someone may be up to it may be necessary to undertake some form of Directed Surveillance.  This could comprise anything from taking sneaky photographs of them in a street, to following them around for days on end with a full-blown surveillance team.  It would also include interception of their telephones, email, internet etc (more on this later).

All of these things are routinely undertaken by specially trained police officers in the course of certain investigations, in order to obtain intelligence or evidence, but they have to be authorised.  Dependant upon the level of surveillance and where it is most things are authorised at Inspector or Superintendent level, but some activities require the express authority of the Home Secretary.

Subject to subsection (6), surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—

  • for the purposes of a specific investigation or a specific operation;
  • in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and
  • otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.

Authorisation of directed surveillance.(1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.

A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—

  • that the authorisation is necessary on grounds falling within subsection (3); and
  • that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.  (my italics)

An authorisation is necessary on grounds falling within this subsection if it is necessary—

  • in the interests of national security;
  • for the purpose of preventing or detecting crime or of preventing disorder;
  • in the interests of the economic well-being of the United Kingdom;
  • in the interests of public safety;
  • for the purpose of protecting public health;
  • for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
  • for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

The conduct that is authorised by an authorisation for the carrying out of directed surveillance is any conduct that—

  • consists in the carrying out of directed surveillance of any such description as is specified in the authorisation; and
    is carried out in the circumstances described in the authorisation and for the purposes of the investigation or operation specified or described in the authorisation.

By now you’re probably thinking “what on earth has this got to do with Constable Goody tweeting things on his personal Twitter account that his bosses don’t like?” , and it may be reasonable to think that;

BUT

All Directed Surveillance has to comply with the rules and satisfy the Surveillance Commissioner, whose job it is to protect the wee folk from an overbearing Big Brother.

And the Surveillance Commissioner got a right Royal strop on earlier this year, positively unhappy with the way some Police Forces were conducting their business.

Way back in the middle of July the Grauniad published an article Surveillance watchdog warns of new threat to privacy

This article refers to the Annual Report of the Surveillance Commissioner, Sir Christopher Rose, whose job it is to oversee the antics of the Police Forces of England and Wales and protect the wee folk from an over-zealous Big Brother.

Its contents, which went largely unreported, are highly significant.
Rose notes that there has been a decline in covert “directed surveillance” of individuals by law enforcement agencies and public authorities.  It is his job to monitor such activities which are covered by the Regulation of Investigatory Powers Act 2000 (RIPA). But the police and other authorities are abandoning the practice of such covert “directed surveillance” of individuals, Rose suggests, because they can gather more and more personal information differently. They can do so through “overt” investigations simply by trawling through material readily available on the internet, through social media for example, and not be subjected to any RIPA controls.  (my italics)

How do you effectively monitor the activities of such data miners, especially those determined to evade statutory controls? Rose raises issues which should be addressed, not just tossed away in a report rushed out by Downing Street.  (my italics)

This raises serious questions. Rose says that his staff are concerned that research using the internet “may meet the criteria of directed surveillance“. In other words, trawling an individual’s social media available on the internet should be subjected to RIPA’s statutory controls. These state that the information should be gathered only to protect national security or prevent crime.  (my italics)

If I may quote a chunk of Sir Christopher’s report;

“My Commissioners have expressed concern that some research using the Internet may meet the criteria of directed surveillance. This is particularly true if a profile is built by processing data about a specific individual or group of individuals without their knowledge.
It is inappropriate to define surveillance solely by reference to the device used; the act of surveillance is the primary consideration and this is defined by RIPA (Regulation of Investigatory Powers Act 2000 section 48(2-4) (monitoring, observing listening and recording by or with the assistance of a surveillance device). The Internet is a surveillance device as defined by RIPA section 48(1). Surveillance is covert “if, and only if, it is conducted in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is, or may be taking place.” Knowing that something is capable of happening is not the same as an awareness that it is or may be taking place.”  (my underlining)

This got me to to wonder, so I asked 4 Police Forces the following questions;

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?

Four relatively focused questions, not one of which requires the disclosure of anyone’s private, personal information.  All is well then, let’s sit back and wait for the replies.

20 Working Days are normally allowed for a Public Authority to respond to a request under the Freedom of Information Act.

On Day 20 I received the following response from 2 of the 4 Police Forces;

The xxxxxxxxxxxx Police Service can neither confirm nor deny that it holds the information you requested as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of the following exemptions:

Section 23(5) Information supplied by, or concerning, certain Security bodies

Section 30(3) Investigations and Proceedings conducted by Public Authorities

Section 31(3) Law Enforcement

Section 40(5) Personal Information

Section 44(2) Information covered by Prohibitions on Disclosure

Sections 44(2), 23(5) and 40(5) 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, (except for Section 40(5)).

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

Overall Harm for the Neither Confirm nor Deny (NCND)

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 on-going 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 on-going 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 Professional Standards Department (PSD) 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.

Public Interest Test

Factors favouring confirmation or denial for Section 30

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 Section 30

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.

Factors favouring confirmation or denial for Section 31

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 Section 31

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.

Section 40(5) Personal Information

The duty to neither confirm or deny under this section of the Act arises where the disclosure of the information into the public domain would contravene any of the data protection principles or Section 10 of the Data Protection Act 1998 or would do so if the exemptions in Section 33A(1) of that Act were disregarded.

Disclosure under Freedom of Information is a release of information to the world in general and not an individual applicant. Therefore, simply confirming or not that such information were held would disclose personal information about individuals.

As such any disclosure that identifies an individual or identifies that an individual has had contact with Dyfed Powys Police or not is exempt and would be a clear breach of principle 1 of the Data Protection Act.
Personal data is defined under Section 1(1)(e) of the Data Protection Act
(1998) as:

“… Data which relate to a living individual who can be identified-

(a)   from those data, or

(b)   from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.”

In this case, the confirmation or denial of the existence of information (if any) would breach Principle One of the Data Protection Act (details of which are provided below).

Principle One:

“Personal data shall be processed fairly and lawfully and in particular shall not be processed unless

(a)   at least one of the conditions in Schedule 2 is met, and

(b)   in the case of sensitive personal data at least one of the conditions in Schedule  3 is also met.”

Balance Test

The Police Service will not divulge whether information is or is not held if to do so would undermine on-going 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 nor 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 our opinion that for these issues the balance test for confirmation or denial is not made out.

None of the above can be viewed as an inference that any information does or does not exist.

To confirm or deny any of the police actions around RIPA would undermine on-going investigations, reveal policing techniques, risk the identification of individuals and the possibility of revealing involvement of any exempt bodies.  Really?  I don’t remember asking for anything that wasn’t a number.  If supplying me with a number will compromise ongoing Police investigations then I’m very sorry that I asked.

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.  Really?  I’m speechless at that one.

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.  Oh they just get better and better.

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.  I’m pretty sure that they do employ such tactics or they wouldn’t be so keen to neither confirm nor deny that they do.

Moving on,

A large metropolitan Police Force has granted itself a 10 day extension of the 20 day time limit whilst its Senior Management consider its response.

The 4th, a small (ish) rural Force has yet to make any kind of response.

I will, of course, update you when these responses are forthcoming.

I apologise whole-heartedly for the length of this blog, but I hope that you can understand why it is so long, plus it is an important and current topic.  However, the big question remains unanswered, is it lawful and/or proportionate to trawl through an officer’s personal Twitter/Facebook account, taking note of the posts and information gleaned within?  Or is it unlawful (as authority would never be granted) and completely disproportionate?

I remember my kids watching Trevor and Simon on Saturday morning TV and hearing the immortal line “We don’t do duvets”.  Well the Police Service are not supposed to do “Fishing Expeditions”  Focused and Targeted, not a Trawl.