Freedom of Information Act 2000 (FOIA) Decision notice

Transcription

1 Freedom of Information Act 2000 (FOIA) Decision notice Date: 28 January 2015 Public Authority: Address: Commissioner of the Metropolitan Police Service New Scotland Yard Broadway London SW1H 0BG Decision (including any steps ordered) 1. The complainant requested information in connection with a FPN (Fixed Penalty Notice) which he was issued for speeding. The Metropolitan Police Service (the MPS ) disclosed some information, advised that some was not held and would neither confirm nor deny holding further information by virtue of sections 40(5)(personal information) and 30(3)(investigations and proceedings). During the Commissioner s investigation it amended its position, adding reliance on sections 14(1), 30(1) and 40(2). The Commissioner s decision is that the MPS stated correctly that some information is not held. He also finds that, where claimed, sections 40(2) & (5) and 30(1) were properly cited and also that section 14(1) (vexatious requests) is engaged in respect of residual information not captured by these exemptions. The Commissioner does not require the MPS to take any steps. Background 2. The request concerns an LTI 20/20 Ultralyte 100 speed camera. These are supplied to the MPS, and most other police forces in the UK, by Tele- 1

2 Traffic UK. Details about this model can be found online in Tele-Traffic UK s manual 1. The manual explains that this model is: a hand-held LASER speed detection and ranging device. It measures and displays the speed of a moving vehicle and the range at which the speed was measured. 3. The Commissioner understands that this particular model does not record any video footage nor does it take any photographs. It is purely a mechanism for recording speeds. 4. The Commissioner has had sight of an unredacted copy of the police officer s witness statement covering the events requested by the complainant. He has also had sight of the police officer s training record in respect of the related speed camera model. 5. The Commissioner has also viewed a random sample of 12 consecutive pages from one of the officer s pocket note books ( PNB ). Request and response 6. On 22 December 2013, the complainant wrote to the MPS and requested information in the following terms: On the 24 th October 2013 at 0536hrs I was issued a FPN (Fixed Penalty Notice) for speeding, subsequently this has caused problems and raised questions. Therefore under the Freedom Of Information Act, I would like to request the following information; 1. I would like to know the name of the police officer with warrant No. [number removed] and shoulder No. [number removed] who was carrying out speed checks on [location removed] on the morning of 24 th October 2013 between 0500hrs and 0600hrs. 2. I would like to know which station this officer is attached to. 3. Please provide evidence that the officer was wearing approved high visibility clothing for carrying out speed checks. 4. I would like to see all the past and current training procedure certificates for this officer for the use of the handheld speed recording device he was using

3 5. Please provide the identification No. and type of the actual handheld speed recording device used on the morning of 24 th October 2013 between 0500hrs and 0600hrs by the police officer. 6. I would like a copy of all maintenance and calibration records for the identified handheld device. 7. I would like a copy of calibration procedures for any handheld speed recording device. 8. I would like a copy of calibration procedures for any site that a handheld speed recording device is going to be used. 9. I would like a copy of evidence that shows the handheld device was calibrated by the said officer before leaving the police station and how it was calibrated. 10. I would like evidence of certificates and the names of individuals who have calibrated this device so that it is fit for use by Home office forces. 11. I would like a copy of the log for the handheld device used by the officer on the said date and time. 12. I would like copy of evidence of documentation that states that all calibration procedures for the actual site have been actioned accordingly and noted by the operator. 13. Please provide visual evidence of the location of the police vehicle where the speed checks were being carried out. 14. Please identify the exact location the equipment was when used to check vehicle speeds. 15. Please provide evidence of eyesight tests of the said officer for the last 6 years. 16. Please provide evidence that the officer with the handheld laser device was visible at all time whilst on duty and whilst carrying out speed checks. 17. Please provide evidence that the camera was not hidden from view of the motorist and could be seen at all times. 18. Please provide evidence that the camera and the operator were visible at a distance of 60meters and more by the motorists. 19. Please provide evidence that the device has been tested for slip effect. 20. Please provide evidence that the slip factor was considered by the officer. 21. Please provide evidence at exactly what distance was the police vehicle visible to the drivers. 22. Please provide the exact distance of the police vehicle from the centre line of the vehicles being checked. 23. Please provide the exact distance of the handheld speed checking device from the centre line of the vehicles being checked. 24. Please provide the exact position of the police vehicle and whether it was parked on a public road or private road/pathway. 3

4 25. Please provide evidence that the site used was totally suitable for this type of equipment and free from any type of contamination i.e. for each of the following a) trees, b) lamp posts, c) traffic signal post, d) falling tree leaves, e) cyclists, f) safety barriers, g) pedestrians, 26. Please provide evidence of what the prevailing weather conditions were on the 24 th October 2013 between 0500hrs and 0600hrs in the area where the speed checks were being carried out. 27. Please provide evidence that the place where the police vehicle was parked has sufficient lighting for the purpose of ; a) Carrying out speed checks, b) For the police vehicle to be seen, c) For the officer to be seen, 28. Please provide evidence that the site used for speed checks fulfils any guideline set down in legislation i.e. for each of the following : a. Length of site between 400 and 3000meters, b. 8 or more injury accidents in the last 3 years i.e. at least 2 fatal and serious collisions per KM in the last 3 years, c. At least 4 personal injury collisions per KM in the last 3 calendar years (Collisions where causation factors are not speed must not be included), d. 85 th percentile speed at or approaching collision hotspot, e. At least 20% of drivers are exceeding the speed limit excluding congestion period, f. Site is suitable for loading and unloading device, g. High density of collisions distributed evenly along the stretch of road, h. There has been a site survey by a road safety engineer and there are no other obvious practical measures to improve road safety along this stretch of road, i. Enforcement cameras are well signed and highly visible in line with DfT guidelines, j. No other speed reduction methods are appropriate e.g. Speed humps, 29. I would like a copy of the Metropolitan Police force procedures for use of portable handheld speed cameras. 30. I would like a copy of the current ACPO enforcement guidelines. 31. Provide evidence of the number of FPN s issued by this officer ([number removed]) during the last 5 years. 4

5 32. Provide evidence of the number of speeding fines handed out by the officer shoulder No. [number removed] whilst conducting speeding checks at the said location on the same date (24 October 2013). 33. I would like a copy of the officers ([number removed]) pocket note book for the last 5 years. 34. I would like evidence of any allegations against the officer in the last 6 years. 35. Please identify the exact location the equipment was when used to record alleged offence 36. Please show that the vehicle named i.e. (VRM [number removed]) was isolated of view and not shadowed by any other vehicle. 37. Please provide evidence that this vehicle maintained a straight line and did not change lanes whilst driving along [location removed]. 38. Please provide evidence of exactly where on the vehicle was the handheld device pointed. 39. Please provide evidence at exactly what distance was the police vehicle visible to the driver at the time of the offence. 40. Please provide evidence off exactly which position along the road did the officer begin taking readings and where the officer stopped taking readings of this vehicle. 41. Please provide copies of actual video footage of the alleged offence. 7. The MPS responded on 3 April It provided answers to questions 29 and 30. It stated that: searches failed to locate any information relevant to questions: 6, 7, 8, 10, 13, 17, 18, 21, 22, 23, 24, 25, 26, 27, 28 and 39 of your request, therefore, the information you have requested is not held by the MPS. And it advised that it would neither confirm nor deny holding any further information saying it had decided to: fully exempt records number 1, 2, 3, 4, 5, 9, 11, 12, 14, 15, 16, 19, 20, 31, 32, 33, 34, 35, 36, 37, 38, 40 and 41 pursuant to the provisions of section 40(5) - Personal Information. It also advised the complainant of his rights to request his own personal data under the provision of the Data Protection Act Following an internal review the MPS wrote to the complainant on 25 July It stated that it was citing section 40(5) and 30(3) and neither confirmed nor denied whether it held the requested information in respect of parts 1-6, 9-28 and of the request. It advised that it did not hold the information in respect of parts 7 and 8 and it again provided the information held in respect of parts 29 and 30. 5

6 9. During the course of the Commissioner s investigation the MPS revised its position. Ultimately it provided responses in respect of parts 1-3, 5, 9, 11, 12, 14, 26, 27, 31 and 32; it advised that no information was held in respect of parts 6, 10, 13, and 28; it cited 40(5) and 30(3) in respect of parts 35-41; and it cited 40(2) in respect of parts 4, 15, 33 and 34. It confirmed that the officer had undertaken the relevant training and also that he had undertaken an eyesight test. It also cited section 30(1) in respect of part At a late stage of this investigation, the MPS also sought to rely on section 14(1) in respect of some residual information withheld in respect of part 33. Scope of the case 11. The complainant contacted the Commissioner on 22 August 2014 to complain about the way his request for information had been handled. He asked the Commissioner to consider the application of the exemptions at sections 30(3) and 40(5). He did not dispute the responses in respect of parts 7, 8, 29 and 30 of the request information was provided for parts 29 and 30 and he was advised that nothing was held in respect of parts 7 and 8. The scope of the investigation was clarified to the complainant at the beginning of the investigation when the Commissioner advised that he was only considering the application of sections 30(3) and 40(5), to which the complainant raised no objection. 12. Following the disclosure of some information during the Commissioner s investigation, the complainant withdrew his complaint of respect of parts 1-3, 5, 9, 11, 12, 26, 31 and 32 so these have not been considered. 13. The Commissioner has considered the responses in respect of the following parts of the request below: 4, 6, 10, 13, 14, 15-25, 27, 28 and Reasons for decision Section 1 information not held 14. The complainant does not accept that the MPS holds no further information in respect of 6, 10, 13, 14, and 28 of the request. 15. Section 1(1)(a) of the FOIA requires a public authority to inform the requester in writing whether or not recorded information is held that is 6

7 relevant to the request. Section 1(1)(b) requires that if the requested information is held by the public authority it must be disclosed to the requester unless a valid refusal notice has been issued. 16. In cases where a dispute arises over the extent of the recorded information that was held by a public authority at the time of a request, the Commissioner will consider the complainant s evidence and argument. He will also consider the actions taken by the authority to ascertain whether the information was held and any other reasons offered by the public authority to explain why the information is not held. He will also consider any reason why it is inherently likely or unlikely that information is not held. For clarity, the Commissioner is not expected to prove categorically whether the information was held, he is only required to make a judgement on whether the information was held on the civil standard of the balance of probabilities. 17. The Commissioner considers the information covered by these parts of the request to either relate to the speed camera itself or they are connected to evidence about the speed checks being undertaken. The speed camera 18. During the Commissioner s investigation the MPS disclosed the Certificate of Conformity and Calibration Data Sheet for the speed camera, taken at two consecutive dates. The Commissioner understands that these forms are completed by the supplier (Tele-Traffic UK in this case) when it calibrates the speed camera and are returned to the owner (the MPS in this case) along with the camera. 19. The MPS also explained that it does not hold any maintenance records as these are held by the supplier and would only be required from them were a related case to go to court, which was not the case on this occasion. This has been confirmed by the manufacturer itself which told the MPS that it will only provide maintenance records when compelled to do so by a court. (The complainant has been advised that to obtain them he should approach the Home Office as they have the contract for supply of this equipment with Tele-Traffic UK). Other evidence 20. The MPS provided the complainant with a redacted copy of the police officer s witness statement which disclosed details of where he was, what he was wearing, the road and weather conditions and his testing of the speed camera equipment. 21. In respect of the remaining requested evidence, the MPS has confirmed that it only holds what is contained in that witness statement and, 7

8 where possible, the details have been disclosed. (Having viewed the unredacted statement the Commissioner can confirm that the redacted elements only contain the personal data of the third party who the officer had stopped on that occasion). 22. The MPS also advised the Commissioner as follows: The officers witness statement states the exact location... No other evidence is held. The officer s written evidence states I was on duty in full police uniform, including a high-vis jacket in marked police vehicle and also states I aimed the measuring device at the approaching vehicle using the red dot sighting scope to align the vehicle correctly. Apart from the officers written evidence this information is not held elsewhere we have not photographs or footage. The measuring device would have been aimed at the vehicle and recorded and shown on the visual display panel of the device, the speed measured in miles per hour. Apart from the officers written evidence this information is not held elsewhere. Apart from the officers written evidence there is no documentary or photographic evidence to show that the vehicle and officer were visible. The MPS do not test for slip effect; we only test for accuracy of the site and distance calculation. The testing of the slip effect testing may be held by the manufacturer. Again, in order to resolve this complaint I contacted teletraffic who informed me that This unit an Lti Ultralyte 100 has been extensively tested as part of the Home Office Type Approval procedure and has been granted approval for use, if any interested party wishes to view the details of that testing the procedure and the results we would ask they contact the Home Office, as quite rightly they are the organization responsible for granting such approval. It is regular practices for an officer to start their statements stating how they were dressed on the day. The officer statement states that the vehicle was under street lighting fully visible to any driver, we have no reason to disbelieve that and that is the only recorded information held, we have no photographic evidence. 23. And, specifically in relation to part (28) of the request, it advised: The [complainant s] questions would only relate to fixed camera sites and do not relate directly to police officers enforcing speed by means of handheld devices. 8

9 24. The Commissioner is satisfied that there is no visual evidence as this is not part of the camera s specification and nothing was therefore recorded. 25. Having considered the MPS s responses to his enquiries, the Commissioner is also satisfied that, on the balance of probabilities, the MPS does not hold any further information within the scope of these parts of the request. Section 40 personal information 26. Sections 40(2) and (5) have been applied to different parts of the requested information. The Commissioner will consider these in turn below. Section 40(2) 27. This has been applied to parts 4, 15, 33 and 34 of the request. 28. Section 40(2) of FOIA provides an exemption from disclosure for information which is the personal data of a third party and where disclosure would breach any of the data protection principles. 29. In order to rely on section 40(2) the requested information must constitute personal data as defined by the DPA. Section 1 of the DPA defines personal data as: data which relate to a living individual who can be identified a) From these 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 intention of the data controller or any other person in respect of the individual. Is the information personal data? 30. The first question for the Commissioner to consider is whether the requested information is personal data as defined in section 1 of the DPA. 31. Parts 4, 15 and 34 of the request are clearly worded to cover information held specifically about the police officer and the Commissioner is satisfied that it therefore constitutes his personal data. 32. Part 33 concerns entries in the officer s PNBs. The PNBs clearly contain details of parties visited and spoken to as well as vehicle registration 9

10 marks and addresses. As such, the Commissioner readily accepts that they contain a lot of personal data, much of which will also be sensitive personal data as it relates to the commission or alleged commission of crimes. Police officer s personal data parts 4, 15 & During the Commissioner s investigation the MPS confirmed that the officer had undertaken training in use of the speed camera. It provided the Commissioner with a copy of the certificate to verify this and this was also confirmed to the complainant, along with the date of the training. However, in respect of disclosure of the actual certificate into the public domain, the MPS maintained that this was unfair. 34. The MPS further disclosed when the officer had last undertaken an eyesight test. However, in respect of disclosure of the actual test results into the public domain, the MPS maintained that this was unfair. 35. The MPS has confirmed that the officer has been the subject of allegations during the last 6 years. However, in respect of disclosure of any details about these allegations into the public domain, the MPS maintained that this was unfair. Would disclosure breach any of the data protection principles? 36. The first protection principle deals with the privacy rights of individuals and the balance between those rights and other legitimate interests in processing personal data. It states that: 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. 37. In the case of an FOI request, the personal data is processed when it is disclosed in response to the request. This means that the information can only be disclosed if to do so would be fair, lawful and meet one of the DPA Schedule 2 conditions. If disclosure would fail to satisfy any one of these criteria, then the information is exempt from disclosure. Would it be fair to disclose the requested information? 38. When considering the fairness element of the first data protection principle, the Commissioner takes into account a number of factors depending on the circumstances of each case. In this case, he considered: 10

11 the reasonable expectations of the data subjects and the nature of the information; the consequences of disclosure; and any legitimate interests in the public having access to the information. Reasonable expectations of the data subjects 39. The Commissioner acknowledges that there will be circumstances where, for example, due to the nature of the information and/or the consequences of it being disclosed, an individual will have a strong expectation that the information will not be disclosed. 40. The MPS explained to the Commissioner that the officer would not expect the results of an eyesight test or a copy of a certificate he was awarded for successfully completing a course or details about any allegations made about him to be released into the public domain. 41. Taking into account that confirmation has been given that the officer has undergone an eyesight test, and has also had the relevant training to operate the speed camera in question, the Commissioner considers that the officer would have a reasonable expectation that copies of the actual requested information in their entirety would not be disclosed. Such disclosure would be unnecessarily intrusive. 42. The MPS also confirmed that it had received allegations about the officer during the last six years. As it has already been disclosed that the officer has issued 2958 FPNs since January 2009 the Commissioner is not surprised that allegations have been received. However, in respect of disclosure of any further details into the public domain, the Commissioner accepts that an officer would have a reasonable expectation that there would not be any additional disclosure of information. Consequence of disclosure 43. When considering the consequences of disclosure in this case, the Commissioner has taken into account the nature of the withheld information. He has also considered the fact that disclosure under FOIA is to the world at large and not just to the complainant. 44. Given the nature of the information and the reasonable expectations of the police officer, the Commissioner is satisfied that disclosure of the withheld information could cause unnecessary and unjustified distress to him. Any legitimate interests in the public having access to the information 11

12 45. The Commissioner considers that disclosure of information can help promote transparency and accountability. In this case, it could also help show that the officer is fit to carry out his duties. However, it has already been confirmed by the MPS that the officer has had a suitable eye test and also that he is suitably qualified to operate the speed camera. 46. In respect of any allegations, these will be dealt with appropriately by the MPS. If they relate in any way to the officer s fitness to undertake his duties then the Commissioner would expect the MPS to take the appropriate action. Disclosure of any such allegation to the public will serve little purpose as they are only allegations and may paint an unfair picture about the officer. Balancing the rights and freedoms of the data subject with legitimate interests 47. The Commissioner accepts that there is a wider public interest in transparency when it comes to fitness of a police officer to undertake his duties. However, in this case, it has already been confirmed that he is fit to do so as he has undertaken the necessary tests. Revealing the nature of any allegations about him will not assist the public in determining his fitness as this will only depict the view of those who have made allegations. In the Commissioner s view it is the role of the MPS as his employer to determine his fitness which it will do by investigating any allegations as it sees fit and by taking any appropriate action required. 48. The Commissioner is satisfied that disclosure would be unfair to the police officer in the particular circumstances of this case. However, notwithstanding individuals expectations of privacy or any harm that could be caused by disclosure, there may be occasions when it is still fair to disclose personal data if there is a public interest in disclosure. However, in this case the Commissioner has not found any compelling reasons which would justify infringing the privacy rights of the individual concerned. He therefore concludes that the exemption at 40(2) is properly engaged. PNBs part As mentioned above, the Commissioner has viewed a sample of pages from one of the officer s PNBs. 50. The MPS has explained that: the pocket books hold personal information which relate to vehicle numbers, individuals names, date of births and addresses. 12

13 The pocket books also show the date and times the checks/stops are taking place and in some instances the venues. The information contained within the pocket books is data relating to individuals other than [the complainant]. It s disclosure would require compliance with the data protection principles contained in the Data Protection Act 1998 (DPA), the first of which is relevant. Would disclosure breach any of the data protection principles? 51. Details about the first data protection principle can be read above. Would it be fair to disclose the requested information? 52. Factors which are taken into account when considering the fairness element of the first data protection principle can be read above. Reasonable expectations of the data subjects 53. The Commissioner acknowledges that there will be circumstances where, for example, due to the nature of the information and/or the consequences of it being disclosed, an individual will have a strong expectation that the information will not be disclosed. 54. The Commissioner considers that this expectation will be particularly strong here. The PNB contains notes about enquiries that an officer is undertaking, which may or may not lead to any further action. It contains his notes about dealing with victims and other aggrieved parties who would have no expectation that their details will be released to the general public. The personal data concerned includes names, dates of birth, addresses and vehicle registration marks. The Commissioner has no hesitation in finding that disclosure of personal details which are recorded by an officer when making these aide memoire notes would be unnecessarily intrusive. 55. The Commissioner also notes that, if the complainant believes that there may be data recorded about him personally in a PNB he is able to request this under the subject access provisions of the DPA. Consequence of disclosure 56. Given the nature of the information and the reasonable expectations of the third parties concerned, the Commissioner is satisfied that disclosure of the withheld information would cause unnecessary and unjustified distress to those parties. Any legitimate interests in the public having access to the information 13

14 57. The Commissioner can find only limited legitimate interest in disclosure of this information in that it could show the types of enquiries that the officer was involved with. Balancing the rights and freedoms of the data subject with legitimate interests 58. The Commissioner accepts that there is a wider public interest in transparency when it comes to police activities. However, in his view this does not come anywhere near to tipping the balance in favour of disclosure when compared to the privacy owed to the parties concerned. 59. The Commissioner again notes that, if the complainant has reasons for wanting any personal information about dealings with this officer then he can apply for this under the terms of the DPA. 60. The Commissioner is satisfied that disclosure would be unfair to the identifiable parties in the PNBs. However, notwithstanding individuals expectations of privacy or any harm that could be caused by disclosure, there may be occasions when it is still fair to disclose personal data if there is a public interest in disclosure. However, in this case the Commissioner has not found any compelling reasons which would justify infringing the privacy rights of the individual concerned. He therefore concludes that the exemption at 40(2) is properly engaged. Section 40(5) 61. This has been applied to parts of the request. 62. The complainant does not accept that these parts of the request relate to him personally, however, in the Commissioner s view it is clear that they do. This is because the information request opens with the statement: I was issued a FPN and these particular parts of the request all make direct reference to that specific offence unlike the other parts of the request which are more general in nature. 63. Section 40(1) of the FOIA provides that: Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject. 64. Section 40(5) of the FOIA provides that: The duty to confirm or deny (a) 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). 14

15 65. According to the Commissioners guidance 2 : If someone requests their own personal data, there is an exemption from the duty to confirm or deny under FOIA, but the public authority should deal with the request as a subject access request under the Data Protection Act (DPA). 66. The information requested in these parts of the request clearly centre on the issuing of a FPN to the complainant. The wording of these parts of the request is such that it all relates to this FPN and in confirming or denying whether it holds any information the MPS will be disclosing sensitive personal data about the alleged commission of an offence by the complainant to the world at large. 67. The Commissioner is of the opinion that the information requested in parts 35-41, if held, would be the personal data of the complainant as it relates specifically to his FPN. All information would accordingly be exempt from disclosure under section 40(1) and therefore, under section 40(5)(a), the MPS is not required to confirm or deny that it is held under the terms of the FOIA. Section 30 - investigations 68. Sections 30(1)(a) and (b) have been applied to part 33 of the request. They are cited in connection with crime details contained in the PNBs which may not necessarily identify a third party but which are all related to individual circumstances which form part of the police officer s criminal enquiries. 69. Section 30(1) provides that Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of- (a) any investigation which the public authority has a duty to conduct with a view to it being ascertained- (i) whether a person should be charged with an offence, or (ii) whether a person charged with an offence is guilty of it, (b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct. 2 guides/neither_confirm_nor_deny_in_relation_to_personal_data_and_regulation_foi_eir.pdf 15

16 70. The Commissioner does not believe that the Police have the power to conduct such proceedings as referred to in (b), rather such proceedings would be conducted by the Crown Prosecution Service. Therefore the Commissioner does not accept that the information in question is exempt from disclosure on the basis of section 30(1)(b). 71. Section 30(1)(a)(i) applies to information that has at any time been held by the MPS for the purposes of an investigation that it has a duty to carry out with a view to ascertaining whether an individual should be charged with an offence. The information must relate to a specific investigation and not investigations in general. Section 30(1) is also a class based exemption, ie if information falls within its scope there is no need for a public authority to demonstrate prejudice in order for the exemption to be engaged. 72. The MPS has explained to the Commissioner: The information contained within the pocket books is information about individuals being stopped and questioned as to movements under Section 1 of PACE and also those individuals reported for traffic offences, and whilst all this information is primarily Section 40(2)(3) because it places identifiable individuals at a specific location on a specific date driving a motor vehicle that on its own could identify someone. As these individuals are being reported for offences they would also fall within the remit of Section 30(1)(a)(b): As these offences are likely to end in an appearance at court as part of criminal proceedings. Within the pocket book it is clear the information relates to Operation Reclaim which is an operation set up to crack down on uninsured drivers and those believed to be connected to crime but also to disrupt criminal activity. 73. Having viewed a sample from one of the PNBs the Commissioner is satisfied that this is an accurate reflection of the content. He is satisfied that the exemption at 30(1)(a)(i) is properly engaged. The public interest test 74. Section 30(1) is a qualified exemption and is therefore subject to the public interest test under section 2(2)(b) of FOIA. Public interest arguments in favour of disclosure 75. The Commissioner invited the complainant to provide any public interest arguments which he wished to submit in favour of disclosing the PNBs to the world at large. He advised: 16

17 the pocket note book is the initial part of the MPS procedure for any convictions or prosecutions. In my situation I am looking to see that the MPS have followed the correct procedures before embarking on any police action. 76. The MPS advised the Commissioner: And: It would be of interest for the public to know that officers attached to the Royal Parks command were regularly engaged in stopping vehicles to investigate offences of no insurance, speeding and other related traffic offences. That the MPS is seen to be open and transparent about its effectiveness or otherwise in combating driving offences within the Royal Parks. 77. The Commissioner recognises that there will always be a strong public interest in achieving transparency and accountability in police operations. Public interest arguments in favour of maintaining the exemption 78. The MPS advised the Commissioner: And: That disclosure of the information would be likely to identify individuals who are either suspected of committing offences or who have been reported by an officer for offences and are awaiting prosecution or court appearances as a result. The locations provided are regularly used in order to carry out proactive investigations into likely traffic offences and to publicise this fact would be likely to lead to those wishing to avoid prosecution to use other routes. 79. The Commissioner recognises that there is a strong public interest in maintaining the section 30 exemption to ensure that the operations of authorities which are responsible for conducting criminal investigations are not jeopardised through disclosures of information. The 5 year time frame submitted by the complainant means that the PNBs will necessarily capture both closed and on-going enquiries and the disclosure of information in this case may potentially undermine both on-going MPS investigations and may also reveal details about cases which have since concluded. Nevertheless, at the time that the notes 17

18 were being made they will have been in relation to ongoing enquiries to ascertain whether any criminal activities were taking place. 80. The Commissioner recognises the strong interest in principle in protecting information acquired by the police during their investigations. Notwithstanding the passage of time, this is particularly relevant in unresolved cases, where charges and prosecutions have not been brought. He also notes that by studying the officer s patterns of behaviour over this considerable time period it may be possible to evade detection by working out his patterns of deployment and where he is likely to be located. Balance of the public interest 81. The Commissioner has determined that there is a strong public interest in protecting information acquired by the police during their investigations. To disclose important evidence in a criminal investigation under the FOIA (without a sufficiently strong public interest in doing so) would undermine the existing procedures governing the disclosure of information in relation to criminal investigations. Such disclosure could also act as a deterrent to those providing information to the police and as such act as a disincentive and consequent hindrance in other police investigations. 82. The Commissioner also notes that the complainant, although invited to do so, has not provided any convincing grounds to support disclosure of the requested information on this occasion. His only comments regarding disclosure of the PNBs, as cited above, is so that he can see whether or not the police have followed correct procedures before embarking on police action, in this instance focusing on one officer rather than the police in general. The Commissioner notes that this type of information would not be contained in the PNBs which, as explained above, are an aide memoire for the officer concerned. Furthermore, it would appear from his argument that he is trying to gather information to assist him personally which the Commissioner considers to carry little weight when seeking to convince him to override the strong public interest in maintaining a class-based exemption such as this. 83. Accordingly the Commissioner decided that the balance of the public interest weighs in favour of maintaining the exemption at section 30(1). PNBs residual information 84. Having properly withheld any information not captured by section 40(2) or 30(1) the Commissioner notes that there is some residual information. As per the PNB samples which were provided to the Commissioner, this would include snippets such as: process 104 bench 18

19 warrant, cancelled 24/2/12 by client Op Reclaim, process (104) & (900), expired substantive and several entries which the Commissioner has found difficult to decipher as they are all handwritten. 85. Each completed PNB contains 100 pages of an officer s handwritten notes. They are manually recorded and it has been estimated that this officer has completed between 12 and 15 of them for the period concerned. 86. The MPS has advised the Commissioner: the minimal remaining information is, I would suggest, potentially meaningless in respect of any useful disclosure. Information remaining indicates 'start of tour', 'end of tour' and more usually the 'date', none of which I would suggest is of public interest or indeed of any use to the applicant. 87. The MPS went on to explain that if it were necessary to redact the PNBs in order to disclose the residual information each book and page would need to be examined. It advised: The MPS would contend that to carry out such a task would be too burdensome and is mindful of the recent decision notice issued in favour of ACPO: Whilst this specific request relates to large numbers of forms, the application and burden on the MPS in regard to redaction of pocket books is deemed to be exactly the same, therefore Section 14(1) would apply. 88. With his experience as to the format of PNBs, the Commissioner accepts that to photocopy these estimated pages prior to commencing any redaction would take some considerable effort. He also accepts that having copied these it would then take some considerable resources to apply the redactions as required by sections 30(1) and 40(2). Furthermore, he notes that the books are handwritten and at times difficult to decipher which in turn would add to the burden and could possibly require liaison with the officer to ascertain their content. 89. The MPS further demonstrated the effort that would be involved by advising the Commissioner: In this case the MPS provided the Information Commissioner with six consecutive pages from the officer's pocket note book. In order 19

20 to read and redact these pages appropriately so as not to breach anyone's privacy or give away law enforcement methodology took approximately five minutes per page: Each pocket note book consists of 96 pages, therefore 5 minutes per page at 96 pages = 8hrs work. In order to do this for 5 years, as requested, it was estimated that would be likely to involve 12 to 15 note books, therefore by using the lower estimate of 12 books at 96 pages per book that equates to 1,152 pages, 5 minutes per page = 96 hours work. 90. Even were the redaction undertaken, the residual information would have no value and would certainly not go any way towards providing what the complainant mistakenly believes to be in PNBs, ie evidence to show that the police officer has followed correct procedures. As such the Commissioner considers that the disclosable element would be of little worth and would be considerably burdensome and onerous to the MPS. 91. In light of this, the Commissioner readily accepts that, in relation to this residual information, this is a vexatious request and so section 14(1) applies. 92. The Commissioner would again note that if the complainant considers that the PNBs may contain information about him personally then he is entitled to request this under the subject access provisions of the DPA. Other matters 93. The Commissioner notes that the MPS has previously made the complainant aware of his rights to request his own personal data under the subject access terms of the DPA. 20

21 Right of appeal 94. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from: First-tier Tribunal (Information Rights) GRC & GRP Tribunals, PO Box 9300, LEICESTER, LE1 8DJ Tel: Fax: Website: If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website. 96. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent. Signed Jon Manners Group Manager Information Commissioner s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF 21