In accordance with section 1(1) (a) of the Act our response is
provided below;
There is no information held in relation to your request
regarding The Data Retention (EC Directive) regulations 2007 (no.
2199).
Please note: I would like to point out that your understanding
of the law is incorrect
The Data Retention (EC Directive) regulations 2007 (no. 2199)
requires communications providers (CSP's) to retain certain data to
enable authorities to undertake investigations, and these
regulations relate exclusively to traditional fixed line and mobile
telephony. This is the first phase of the implementation of the EC
Directive 2006/24/EC. The second phase was due to be implemented in
March 2009 and will replace these regulations.
The regulation (2199) does not provide public authorities with a
statutory entitlement to request and obtain records from public and
private communications companies etc...it merely requires
communication providers to retain certain data.
Therefore under the terms of the Freedom of Information Act are
response is technically in line with your questions. However, in
the spirit of the legislation and in order to assist we have
provided information based on the police services ability to then
obtain that data, using powers under Part 1, Chapter 2 of the
Regulation of Investigatory Powers Act 2000. (RIPA)
Although the questions were not numbered by you we have done so
in order to make the response easier to read as follows.
Q1: How many requests have been made by your organisation to
access individuals' telephone records in the last 24 months?
Q2: How many individuals have been the subject of such
disclosures in that period?
Q3: Which departments/sections of your organisation have made
those applications?
Q4: On what dates were those applications made?
Q5: How many disclosure applications concerned:
Staff
Contractors and suppliers
Recipients of statutory benefits
Elected members
Journalists
'Other'
Q1. The number of requests to CSP's
The force level totals of information that has been requested
under Section 21(4) of RIPA is:
Number of requirements made for subscriber information = 3066
Number of requirements for service use data = 237
Number of requirements for traffic data = 1458
Q2: How many individuals have been the subject of such disclosures
in that period?
The records are a mixture of computer and paper based. To
determine this figure would entail a manual search of the paper
records which number 3066 in total for the period requested. This
it is estimated would exceed the appropriate limit. The appropriate
limit is defined in the Data Protection and Freedom of Information
(Fees and Appropriate Limit) Regulations 2004, which is covered by
statutory Instrument Number 3244 of 2004. Furthermore, Section 12
of the Freedom of Information Act 2000 allows a public authority to
refuse to respond to a request for information where the cost of
compliance would exceed the appropriate limit as defined by the
above mentioned regulations.
In respect of the remainder of your questions;
Section 17 of the Freedom of Information Act 2000 requires the
Cheshire Constabulary, when refusing to provide such information
(because the information is exempt) to provide you with a notice
which a) states that fact, b) specifies the exemption in question
and c) states (if that would not otherwise be apparent) why the
exemption applies.
Q3: This information is exempt information by virtue of S31 (1).
Law Enforcement.
Section 31 is a prejudice based qualified exemption which means
that the legislators have identified that there is a requirement to
evidence the prejudice (harm) in disclosure and also consider the
public interest factors. Both should be articulated to the
applicant.
Evidence of Harm
Although the public would expect to see a list of known
department names such as CID, uniform etc. the disclosure of this
information to the level requested would start to reveal tactically
exactly where the powers are being exercised. This leaves us
vulnerable to analysis of where ongoing operations may be based on
that information. For example in force X 75% of requests in the
last 12 months may have been made by the drugs squad, which would
indicate the presence of a large ongoing operation whereas in force
Y, the drug squad do not feature at all, for that time period. This
would be valuable information, useful to criminals, who do not
recognise force boundaries, but operate where the risk of detection
is lowest. Disclosure of any information which would be useful
intelligence to criminals makes detection more difficult and places
the public at risk of more crime and the effects of such crime.
However, in order to assist you and supplementary to the refusal
of this information please see the following statement.
The use of powers granted under S21 (4) can be authorised by a
designated person if it is necessary in either: the interests of
national security, 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; for the purpose, in an
emergency, of preventing death or injury or any damage to a
person's physical or mental health, or of mitigating any injury or
damage to a person's physical or mental health; or for any purpose
which is specified by an order made by the Secretary of State.
It therefore follows with such a wide remit that all of the
departments within the force, when appropriate and necessary will
exercise these powers. It is however regrettable for the reasons
given above that we cannot be more specific at this time.
Public Interest Considerations for Section 31
Favouring Disclosure
Disclosure of the information will identify to a degree the
extent of police use of communications data providing a better
awareness to the general public.
Favouring Non-disclosure
The Police Service has a duty to deliver effective law
enforcement ensuring the prevention and detection of crime,
apprehension or prosecution of offenders and administration of
justice is carried out appropriately. Disclosure under FOIA is a
release to the world in general and revealing tactical capabilities
has a detrimental effect on the ongoing operations of the force.
This makes us less effective in fulfilling our remit to tackle
crime.
There is statutory oversight of the use of powers under RIPA by
the Office of the Interception of Communications Commissioner. The
nature of the information involved dictates that the public
examination of the information is likely to have a detrimental
impact on policing and undermine the partnership approach to law
enforcement.
The use of communications data is a key investigative tool used
by the police and other agencies involved in the investigation of
serious crime and terrorism. The extent of the use of
communications data and in relation to which investigations are not
in the public domain, thus giving an operational and tactical
advantage to the police and agencies. Any eroding of this advantage
can only benefit the criminals and will have an inevitable impact
on public safety, particularly in terms of terrorism and organised
crime including drugs trafficking. Any disclosure would seriously
undermine the partnership approach to investigations.
Q4 and 5 These question relate directly to material/information
obtained by the Constabulary whilst conducting investigations and
would not exist if there were no investigations being undertaken
therefore this information is exempt information in accordance with
S30 (1) Investigations.
This is classed based, but qualified and therefore a PIT for
this exemption is also required.
Public Interest Considerations for Section 30
Favouring Disclosure
To release the information requested would identify that the
Police Service are focusing public funds appropriately in order to
deliver effective law enforcement.
Favouring Non-disclosure
As detailed within the Section 31 considerations, the Police
Service is charged with enforcing the law, preventing and detecting
crime and protecting the communities we serve and there is a public
interest in the transparency of investigations. That being said, it
is rare that details of an investigation will be disclosed as to do
so will invariably release personal information, law enforcement
techniques and in the case of uncompleted cases potentially damage
the criminal justice process. The information linked to
investigations in this request is recent, may involve ongoing
investigations and will reveal the extent to which communications
data has been used. The danger of compromise to the specific
investigations and similar current and future investigations is not
in the public interest.
Overall Balancing Test
It is acknowledged that there is a clear public interest in the
use of public funds and that police forces are held to account for
their actions and this is the strongest strand of the argument in
favour of disclosure of the information requested. On the other
hand, the ability to ensure effective law enforcement is delivered
as well as protecting the partnership approach between the forces
and other agencies is not compromised are the principal arguments
in withholding the information. A key consideration is the types of
criminality for which communications data is requested. Whilst it
is possible for a wide range of criminal investigations to accrue
advantage from the acquisition and analysis of communications data,
the reality is that generally it is the most serious of crime -
terrorism, drug trafficking and organised serious crime groups -
that form the bulk of requests for communications data. These types
of crime, and the criminals who carry them out, impact directly on
public safety and this is the key factors in this overall balancing
test. The argument for disclosure is further weakened when the
current independent Commissioners have been appointed who are
responsible for ensuring that the powers available to law
enforcement bodies are used appropriately. They have the power of
inspection and produce information into the public domain via
reports which are publicly available. There is no evidence to
suggest that they are ineffective, which means that the police are
already held to account for the use of RIPA legislation, this would
not be further enhanced by disclosure under the Freedom of
Information Act.
Accordingly, it is assessed that , in all the circumstances of
the case, the public interest in maintaining the exemption
outweighs the public interest in disclosing the information
requested in questions 3, 4 and 5 of this request.