I am sorry that you are disappointed with the outcome of your request for information.

Transcription

1 Freedom of Information Request Reference No: I note you seek access to the following information: I am sorry that you are disappointed with the outcome of your request for information. Background to your complaint: On 14/02/2017, you submitted the following Freedom of Information Act request Q1 - Please provide any guidance for the use of officers in deciding whether to disclose information about persons arrested or charged, what to disclose and whom to disclose it to. I understand that producing such guidance is a police force level responsibility under the Common Law Police Disclosure programme. Q2 - Please provide any guidance for police officers around disclosure of information about persons (eg suspects, or persons the subject of allegations) before and after they are arrested, whether such disclosure is deliberate or inadvertent, eg in the course of investigation or at the scene where officers are providing a response. On 20/04/2017, you made the following complaint: I am writing to request an internal review of Metropolitan Police Service (MPS)'s handling of my FOI request 'Common Law Police Disclosure program'. Thank you for your response to my FOI request. You are claiming exemption under a Section 31(1)(a) and Section 31(1)(b), however you have failed to apply any real Public Interest Test. What you have performed instead is a simple box ticking exercise which fails to undertake any real consideration of either potential harm, or of the public interest in disclosure. You write: "In this case the information requested relates either directly or indirectly to specific details around police knowledge, tactics and methodology. Disclosing information in this area could potentially impact and undermine tactical and strategic techniques." This will be the case in almost all FOI requests to a police force. This is a cut-andpaste sentence you have included with little relevance. CLPD should not be used as a 'tactical' or 'strategic' technique. Were it being so used, that would be sinister. If the disclosure of information about specific individuals is used at all for the prevention of specific criminal activity, then this is activity that

2 should be subject to oversight. Your statement that disclosure around the police's policy towards CLPD may impact tactical and strategic techniques suggests a public interest in favour of disclosure, since FOI would provide some small level of oversight where no parliamentary or ministerial oversight appears to exist. You write: "The information you have requested has been obtained and created for a policing purpose." You write, in another cut-and-paste sentence, that the information has been 'obtained' for a policing purpose. It cannot have been. I am seeking internal guidance, which must have been created, rather than obtained. You write: "It is unlikely that any information relating to this area could be released if there is any possibility that any information released could affect an investigation and therefore any potential criminal proceeding or judicial process." If this is the test you habitually use to assess harm then you are failing, by policy, in your FOI duties. A correct test would be that as much information as possible should be released so that any chance of any of the information which is specific affecting specific investigations or proceedings is minimal. All of the information which you release under FOI, by press releases, or, eg, by CLPD has 'some possibility' of 'affecting' investigations or proceedings. The nature of information is that we cannot predict exactly what its effects will be. Your test amounts to: 'any information is unlikely to be released if it is information not yet in the public domain'. That is an incorrect test to use and I will seek specific ruling from the ICO on the use of that test. You write: "The MPS is charged with enforcing the law, preventing and detecting crime and protecting the communities we service. Disclosure would technically be releasing sensitive operational information into the public domain, which would enable those with the time, capacity and inclination to try and map strategies used by the MPS to the MPS's disadvantage." Again, this cut-and-paste sentence could apply to any information. I love the way you use the word 'technically' to imply that you have applied some technical knowledge to come to the conclusion that information is 'sensitive operational information', when you have not. It is just information, and all information holds at least the possibility of being sensitive. But that mere possibility does not cover you using a s.31 exemption. I find it highly unlikely that police policy on when to use CLPD is in fact sensitive in any operations unless those operations themselves are borderline unlawful (an example would be the strategic release of individuals' information who, due to no evidence of their being involved in crime, could not be prosecuted or investigated). I struggle to imagine, even in entirely hypothetical scenarios, how knowledge of when the circumstances release individuals' data could be used to "try and map strategies used by the MPS" in order to commit, or support, or hinder the investigation of crime or the bringing to justice of offenders. I remind you here that the exemption covers policing purposes, and not disadvantages to the MPS which are outside of policing purposes (an example might be disadvantage to the MPS in a

3 judicial review of unlawful police policy, or a case of harassment or malicious process by MPS against individuals). You write: "Additionally MPS resources and its ability to operate effectively and efficiently would directly be affected as this information can be manipulated by those with criminal intent to continue to operate in these areas." Again, your cut-and-paste sentence bears no relation to this specific FOI request. Which "areas" do you refer to that the public disclosure of MPS's CLPD policies would allow criminals to operate in? In the context of my request this is no more than a nonsense statement. You write: "Owing to the inter-connected nature of criminals and criminal activities, specific operations often overlap one another and different policing tactics must be used to combat this criminality. Such operations may occur within the operational area of a particular law enforcement agency, such as the MPS, but will also occur across other areas which would then involve more than one police force or agency. Acknowledging that there is an operation in some situations is likely to cause potential harm to undercover officers or would be very likely to prejudice the investigation or the prevention or detection of crime and the apprehension or prosecution of offenders." Which raises a point on a very serious issue. You refer again to 'operations' and 'policing tactics' in the context of my FOI request. This is worrying, since the disclosure of individuals' information should not be used as a tactic. In my opinion it should only be used when there is a danger to the public which cannot be sufficiently mitigated by the apprehension of a criminal or suspect. Obviously the law provides a number of powers so that the police can apprehended suspects, rather than disclosing their information as a 'tactic'. If there existed any operation which this 'tactic' formed part of, then that would be a matter of serious public concern, since the police's job should be to investigate crime and apprehend suspects in the way that we all understand the police does. If the police are unable to do that, it is a matter of public concern. If the police are able to do that, but choosing to instead release their personal details, it is a matter of public concern. If the police do not have grounds to apprehend or investigate persons, but are nonetheless releasing their personal details, then that too is a matter of public concern. I do not know if this paragraph of yours is a mistake, which you have simply cut-andpasted in without concern for its relevance to my request. If however it is not, then you have not only failed demonstrate a legitimate harm consideration with it, but have instead raised a strong factor favouring disclosure in the public interest. The public have a legitimate concern that the police, including and especially MPS, not only overreach powers of theirs which are regulated, but secretively make use of powers which are not regulated. If there exists policy on the disclosure of information on persons either arrested or charged or before they are arrested, and this policy is so counter to what is known or assumed by the public (ie that police forces share information in an investigative context with other government agencies, and police will share information with non-police agencies who would have a legal power to detain persons where persons are relevant to those agencies), that disclosure of the policy, even without any specific case information, would be likely to disadvantage

4 the MPS in any context at all (let alone the s.31 relevant ones), then this is a use of CLPD which appears to be outside MPS's remit, which is the prevention, detection and investigation of crime, apprehension of offenders and keeping the peace. Specifically, this seems to suggest that MPS is using the disclosure of information on of individuals as an alternative to investigation and apprehension, which would be unlawful. Public concern on issues like this are the reason why Parliament did not exclude police forces from FOIA. It does mean that FOI officers must perform actual work in processing requests, to sanitise responses of the many details which genuinely may provide some advantage to criminals. However, disclosure, and the associated work, is what the Act requires. This may 'disadvantage' the MPS if the 'tactics' being used are legally dubious or, indeed, if those tactics are legitimate but better understanding of how the police do their job leads to a better understanding, including by criminals, of the role and the reach of police forces. However, that is necessary in a democracy, which is why FOIA applies to police forces. It is only if some tactic were legitimate but not widely known, and which criminals could, given full knowledge of it, gain some advantage from understanding, that suppression of FOI disclosure to protect that tactic could be legitimate. However, as I have explained, if there is some police tactic which involves the use of CLPD, but which the MPS are keeping secret, than that is not a legitimate tactic, since the disclosure of information about individuals is not (outside of the statutory regime) a function of the police, and additionally cannot be a subject which criminals can gain a criminal advantage from knowledge of. You have also failed to consider the inherent public interest in favour of disclosure, which is all the stronger in this case, since we appear to be talking about a public body (MPS) exercising functions of a type the public do not expect it to be exercising, so that increased awareness of the nature as well as the specific functioning of public bodies into play. Details of Investigation of your complaint: I have reviewed the actions of the Information Manager with responsibility for your request. I have also discussed your request with the MPS Criminal Justice Reform Team and the MPS Directorate of Legal Services. I have also made searches on the internet to ascertain if the information you have requested is in the public domain. I have found instances where other police forces have disclosed information similar to that which you have requested. Please see the links below for examples pdf

5 DECISION The review has considered your original request for information within the provisions set out by the Act and I have decided to: Uphold your complaint and set aside the original decision REASON FOR DECISION: After review and assessment of your original request, I am in agreement with your opinion that Section 31 Law enforcement exemption is not applicable in this case and that the arguments given for using this exemption are not valid as they do not bear relevance to your request for information. REVISED DECISION: I have today decided to disclose the located information to you in full. Please find attached below MPS Common Law Police Disclosure Policy Please note that the MPS CLDP Question and Answers are for guidance only. Each case is judged on its own merits and therefore the questions and answers should not be taken as a definitive guide for the MPS use of the Common Law Disclosure Programme. Documents Conclusion: All requests and internal reviews are dealt with on a case-by-case basis. The internal review is intended to provide a fair and thorough review of handling issues and of decisions taken pursuant to the Act. It enables a fresh decision to be taken on a reconsideration of all the factors relevant to the request. For this reason, as far as is practicable, FOIA internal reviews within the MPS are conducted by individuals that have had no connection with the initial handling of a request to facilitate a fresh look at the circumstances of a request. Your comments concerning your request have been brought to the attention of the Information Manager concerned. The issues you have raised have been recorded and they will enable us to provide a more efficient and effective service in the future. I sincerely hope that I have been able to address the issues raised in your complaint and apologise on behalf of the MPS for our unsatisfactory initial response.

6 I would like to take this opportunity to thank you for your interest in the Metropolitan Police Service. Information Rights Unit

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