Dear Mr Franklin
Freedom of Information Request Reference No: 2016040001401
I write in connection with your request for information which was received by the Metropolitan Police Service (MPS) on 25/04/2016. I note you seek access to the following information:
- As I am sure you are aware, eight of us were tried for
obstructing the highway outside the Excel Centre during the set-up of the
Defence Security and Equipment International (DSEI) exhibition last year,
and that we were acquitted on the grounds that we were attempting to
prevent crime. In particular, the judge said: “the court has been
presented with clear, credible and largely unchallenged evidence from
three experts that criminal wrongdoing had occurred at past DSEI
exhibitions involving the sale of arms to countries which then used those
arms against civilian populations and the sale of items that were
inherently unlawful such as cluster munitions and items designed for
torture and inappropriate restraint. There was, as a result, a compelling
inference that such activities would also take place at the 2015 DSEI
exhibition. “The court was also presented with clear, credible and largely
unchallenged evidence that such criminal activities are not being properly
investigated and, where appropriate, prosecuted.” In the past extremely
serious crimes have been found to be being committed at the exhibition
including the sale of torture equipment, cluster bombs and land mines as
well as the facilitation of the sale of weapons that are overwhelmingly
likely to be used to commit human rights abuse. Yet none of these
crimes have been discovered by your officers, and when crimes have been
discovered and reported no action has been taken. This strongly suggests
that you are more concerned with obstruction of the highway than with war
crimes or torture.
To set my mind at rest I would be grateful if you could tell me what actions your officers have taken in the past to discover these crimes.
- Have you inspected exhibitors prior to the fair?
- Do you have police in the fair briefed to look for
illegal activity?
- Are you vetting exhibitors and buyers to ensure that
no human rights abusers are present?
- What level of resource are you devoting to the
prevention and detection of crime at DSEI?
NB. If it would help this can be considered a freedom of information access request. Please note that I am asking about the efforts that you have made I am also writing to the Clarion events, HMRC and the National Crime Agency .
DECISION
The Metropolitan Police Service can neither confirm nor deny whether it holds the information that you have 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 23(5) - Information supplied by, or concerning, certain security bodies
Section 24(2) - National Security
Section 30(3) - Criminal Investigations
Section 31(3) - Law Enforcement
Section 40(5) – Personal Information
Section 17(1) of the Act provides:
(1) A public authority which, in relation to any request for information, is to any extent relying on a claim that any provision in part II relating to the duty to confirm or deny is relevant to the request or on a claim that information is exempt information must, within the time for complying with section 1(1), give the applicant a notice which-
(a) states the fact,
(b) specifies the exemption in question, and
(c) states (if that would not otherwise be apparent) why the exemption applies.
In accordance with the Act, this letter represents a Refusal Notice for this particular request.
REASONS FOR DECISION
Before I explain the decisions I have made in relation to your request, I thought that it would be helpful to outline the parameters set out by the Freedom of Information Act 2000 (the Act) within which a request for information can be answered.
The Freedom of Information Act 2000 creates a statutory right of access to information held by public authorities. A public authority in receipt of a request must, if permitted, state under Section 1(a) of the Act, whether it holds the requested information and, if held, then communicate that information to the applicant under Section 1(b) of the Act.
The right of access to information is not without exception and is subject to a number of exemptions which are designed to enable public authorities to withhold information that is unsuitable for release. Importantly the Act is designed to place information into the public domain, that is, once access to information is granted to one person under the Act, it is then considered public information and must be communicated to any individual should a request be received.
Section 23 - Information supplied by, or relating to, bodies dealing with security matters
(5) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(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).
This is an absolute exemption and I am therefore not required to complete a public interest test.
Section 24 - National security
(2) The duty to confirm or deny does not arise if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of safeguarding national security.
This is a qualified exemption for which I am required to conduct a public interest test and provide evidence of harm.
Evidence of Harm
In considering whether or not we hold any further information, I have considered the potential harm that could be caused by disclosure.
National security is not defined in the Act. However in the case of the Norman Baker MP v. IC (2007) the House of Lords referred to the decision in Secretary of State for the Home Department v. Rehman (2001):
(i) national security means ‘the security of the United Kingdom and its people’
(ii) the interests of national security are not limited to action by an individual which can be said to be ‘targeted at’ the UK, its system of government or its people
(iii) the protection of democracy and the legal and constitutional systems of the state is a part of national security as well as military defence
(iv) ‘action against a foreign state may be capable indirectly of affecting the security of the United Kingdom’
(v) ‘reciprocal co-operation between United Kingdom and other states in combating international terrorism is capable of promoting the United Kingdom’s national security’
Based on this definition national security encompasses a wide spectrum and it is our duty to protect the people within the UK. Public safety is of paramount importance to the policing purpose and must be taken into account in deciding whether to disclose if the information is or is not held.
To confirm or deny whether we hold any information, would allow interested parties to gain an upper hand and awareness of policing decisions used to safeguard national security. As mentioned above, disclosure under FOIA is a release to the general public. Therefore, to confirm or deny whether we hold any information pertinent to your request could potentially be misused proving detrimental to national security.
In this current environment, where there is a possibility of increased threat of criminal activity, providing any details even to confirm or deny that any information exists could assist any group or persons who wish to cause harm to the people of the nation which would undermine the safeguarding of national security.
Public Interest Test
Factors favouring confirmation or denial for S24 - The information simply relates to national security and disclosure would not actually harm it. The public are entitled to know how public funds are spent.
Factors against confirmation or denial for S24 - By disclosing any policing actions including level of resources would lead to the compromise of ongoing or future operations to protect the security or infrastructure of the UK and increase the risk of harm to the public. To counter this, a full review of security measures would be needed and additional costs would be incurred.
Section 30 - Investigations and proceedings conducted by public authorities
(3) 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). http://www.legislation.gov.uk/ukpga/2000/36/section/30
This is a qualified exemption for which I am required to conduct a public interest test.
Public Interest Test
Factors favouring confirmation or denial for S30 – A statement confirming or denying whether or not information is held in relation to your request would enhance the transparency and accountability of the MPS and its operations. This would provide an insight into the police service and enable the public to have better understanding of effectiveness of the police, particularly, in relation to the spending of public funds and the decisions taken by officers. This may also enhance public confidence in the police.
Factors against confirmation or denial for S30 – To confirm or deny the existence of any information in relation to your request would disclose policing practices, thereby exposing operational procedures and investigative protocols. Information relating to investigative tactics and protocol will rarely be disclosed under the Act and only where there is a strong public interest consideration favouring disclosure.
To confirm or deny the existence of such information would reveal policing tactics regarding services that may or may not have been used and particular tactics deployed. This could be to the detriment of providing an efficient policing service and a failure in providing a duty of care to all members of the public.
Balancing Test - Confirming or denying the requested information is held would reassure the public that any investigation is being or has been properly conducted and would allow for a greater understanding of how information is gathered. Confirming or denying that any information relevant to the request is held, would however, enable those who would wish to cause harm to identify the focus of policing activity thereby exposing operational procedures and investigative protocols and help them to evade prosecution. Therefore, by neither confirming or denying that information that is relevant to your request is held protects any ongoing investigation that the MPS may or may not be conducting. Information relating to investigative tactics and protocol will rarely be disclosed under the Act. This could be to the detriment of providing an efficient policing service and a failure in providing a duty of care to all members of the public.
After weighing up the competing interests, I believe that the balance test favours neither confirmation or denial.
Section 31 - Law Enforcement
(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice -
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders,
(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1). http://www.legislation.gov.uk/ukpga/2000/36/section/31
This is a qualified exemption for which I am required to conduct a public interest test and provide evidence of harm.
Evidence of Harm
To confirm or deny whether the information requested is held relevant to this request could be detrimental to law enforcement.
FOIA is considered to be a release to the world as once the information is published the public authority, in this case the MPS, has no control over what use is made of that information. Whilst not questioning the motives of the applicant it could be of use to those who seek to disrupt any police investigation as it would by a process of elimination, enable them to identify what level of policing activity is likely to take place and what tactics may or may not have been used.
The effect of this information being available to the applicant and more importantly those who might wish to disrupt Police tactics, would be a requirement for a full review of police tactics and possible increase in costs to the public purse.
To confirm or deny that the requested information is held may be to the detriment of providing an efficient policing service and a failure in providing a duty of care to all members of the public, and this would also impact upon any current investigations that may or may not be in progress.
Public Interest Test
Factors favouring confirmation or denial for S31 - Confirming or denying whether the information is held would allow the public to see where public funds have been spent and allow the Police service to appear more open and transparent.
Factors against confirmation or denial for S31 - By confirming or denying whether the information is held, would mean that law enforcement tactics would be compromised which would hinder the prevention and detection of crime. These tactics would need to be reviewed which would require more resources and would add to the cost to the public purse.
Disclosure would technically be releasing sensitive operational information, if held, into the public domain, which would enable those with the time, capacity and inclination to try and map strategies used by the MPS.
The MPS is reliant upon these techniques during operations and the public release of the modus operandi employed during the enquiries would prejudice the ability of the MPS to conduct similar investigations.
Balancing Test - After weighing up the competing interests I have determined that the disclosure of the requested information, if held, would not be in the public interest as by confirming or denying that information is held would compromise law enforcement and could be to the detriment of providing an efficient policing service, resulting in costs to the public purse.
Section 40 – Personal Information
Section 40(5) provides 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), and
(b) does not arise in relation to other information if or to the extent that either-
(i) the giving to a member of the public of the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) contravene any of the data protection principles or section 10 of the [1998 c. 29.] Data Protection Act 1998 or would do so if the exemptions in section 33A(1) of that Act were disregarded, or
(ii) by virtue of any provision of Part IV of the [1998 c. 29.] Data Protection Act 1998 the information is exempt from section 7(1)(a) of that Act (data subject's right to be informed whether personal data being processed).
As mentioned above a Freedom of Information Act request is not a private transaction. Both the request itself, and any information disclosed, are considered suitable for open publication. This is because, under Freedom of Information, any information disclosed is released into the wider public domain, effectively to the world and not just to one individual.
To confirm or deny whether personal information exists in response to your request could publicly reveal information about an individual or individuals, thereby breaching the right to privacy afforded to persons under the Data Protection Act.
Overall Balance test
The security of the country is of paramount importance and the Police service will not divulge whether information is or is not held if to do so would undermine National Security or law enforcement. Whilst there is a public interest in the transparency of policing operations and providing assurance that the police service is appropriately and effectively engaging with the threats posed by groups or individuals there is a very strong public interest in safeguarding the integrity of police investigations and operations.
As much as there is public interest in knowing that policing activity is appropriate and balanced this will only be overridden in exceptional circumstances. Areas of interest to the police are sensitive to the extent that they reveal local intelligence. To confirm or deny the existence of the requested information, if held, would allow interested parties to gain an upper hand and awareness of policing decisions used during investigations. As previously stated, disclosure under FOIA is a release to the public at large. Therefore, to confirm or deny the existence of any information that you have requested, into the public domain could potentially be misused proving detrimental to ongoing and future investigations.
To confirm or deny information is held would harm law enforcement functions of the MPS by disclosing operational techniques. This would compromise the future law enforcement capabilities of the police, which would be to the detriment of providing an efficient policing service and a failure in providing a duty of care to all members of the public.
After weighing up the competing interests I have determined that confirmation or denial of any information being held concerning your request would not be in the public interest. To confirm or deny that information is held could be detrimental to any investigations that may be being conducted now or in the future.
However, this should not be taken as necessarily indicating that any information that would meet your request exists or does not exist.
May I apologise for any inconvenience caused due to the delay in responding to your request.
COMPLAINT RIGHTS
If you are dissatisfied with this response please read the attached paper entitled Complaint Rights which explains how to make a complaint.
Should you have any further enquiries concerning this matter, please contact me via email at maureen.mcguire@met.police.uk, quoting the reference number above.
Yours sincerely
Maureen McGuire
Infoprmation Manager
Information Rights Unit
Section 17 of the Act provides:
(1) A public authority which, in relation to any request for information, is to any extent relying on a claim that any provision in part II relating to the duty to confirm or deny is relevant to the request or on a claim that information is exempt information must, within the time for complying with section 1(1), give the applicant a notice which-
(a) states the fact,
(b) specifies the exemption in question, and
(c) states (if that would not otherwise be apparent) why the exemption applies.
Section 23(5) of the Act provides:
Security Bodies
(5) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(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).
Section 24(2) of the Act provides:
National Security
(2) The duty to confirm or deny does not arise if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of safeguarding national security.
Section 30(3) of the Act provides:
Investigations and proceedings conducted by public authorities
(3) 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).
Section 31(3) of the Act provides:
Law Enforcement
(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1).
Section 40(5) of the Act provides:
Personal Information
(5) 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), and
(b) does not arise in relation to other information if or to the extent that either-
(i) the giving to a member of the public of the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) contravene any of the data protection principles or section 10 of the [1998 c. 29.] Data Protection Act 1998 or would do so if the exemptions in section 33A(1) of that Act were disregarded, or
(ii) by virtue of any provision of Part IV of the [1998 c. 29.] Data Protection Act 1998 the information is exempt from section 7(1)(a) of that Act (data subject's right to be informed whether personal data being processed).
In complying with their statutory duty under sections 1 and 11 of the Freedom of Information Act 2000 to release the enclosed information, the Metropolitan Police Service will not breach the Copyright, Designs and Patents Act 1988. However, the rights of the copyright owner of the enclosed information will continue to be protected by law. Applications for the copyright owner's written permission to reproduce any part of the attached information should be addressed to MPS Directorate of Legal Services, 10 Lambs Conduit Street, London, WC1N 3NR.
COMPLAINT RIGHTS
Are you unhappy with how your request has been handled or do you think the decision is incorrect?
You have the right to require the Metropolitan Police Service (MPS) to review their decision.
Prior to lodging a formal complaint you are welcome to discuss the response with the case officer who dealt with your request.
Complaint
If you are dissatisfied with the handling procedures or the decision of the MPS made under the Freedom of Information Act 2000 (the Act) regarding access to information you can lodge a complaint with the MPS to have the decision reviewed.
Complaints should be made in writing, within forty (40) working days from the date of the refusal notice, and addressed to:
FOI Complaint
Information Rights Unit
PO Box 57192
London
SW6 1SF
foi@met.police.uk
In all possible circumstances the MPS will aim to respond to your complaint within 20 working days.
The Information Commissioner
After lodging a complaint with the MPS if you are still dissatisfied with the decision you may make application to the Information Commissioner for a decision on whether the request for information has been dealt with in accordance with the requirements of the Act.
For information on how to make application to the Information Commissioner please visit their website at www.ico.org.uk. Alternatively, write to or phone:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Phone: 0303 123 1113
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