In accordance with section 1(1) (b) of the Act our
response is provided below;
Question 1: In relation to the number
of registered sexual offenders whose whereabouts are unknown,
Cheshire Constabulary have as the date of your request, 3 RSO’s
currently recorded as wanted because their whereabouts are unknown.
This total is only valid for the date in question because the
information is dynamic and will change as arrests are made or new
cases come to light through pro-active intelligence led policing or
routine visits to registered offenders.
Question 2: Having considered your
request in relation to this question I am not obliged to supply the
information requested.
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.
The information is exempt by virtue of section 40 (2)
& 40 (3) of the Act
The Constabulary obtained this data whilst under a
duty to do so in accordance with current legislation. It contains
data that would be considered sensitive personal data within the
meaning of the Data Protection Act 1998 in that it relates to the
criminal convictions of data subjects.
It is my belief that disclosure would breach
principles 1 and 2 of the Data Protection Act 1998. The processing
by disclosure would not be fair, it would be beyond the purpose for
which it was obtained and it would breach the rights of the data
subjects.
The first Data Protection principle requires personal
information to be processed fairly and lawfully and only
when (a) at least one of the conditions for processing in
Schedule 2 of the Data Protection Act 1998 and (b) in the case of
sensitive personal data, at least one of the conditions in Schedule
3 is met.
For this type of request the two Schedule 2 conditions
which could apply are Condition 1 – the data subject has given
his consent to the processing.
In this instance, no consent has been given.
Condition 6 (1) The processing is necessary for
the purposes of legitimate interests pursued by the data controller
or by the third party or parties to whom the data are disclosed,
except where the processing is unwarranted in any particular case
by reason of prejudice to the rights and freedoms or legitimate
interests of the data subject.
This requires the legitimate interests of the Chief
Constable or the requestor to be weighed against any prejudice to
the rights, freedoms or legitimate interests of the data subject
whose data the police have recorded or processed.
In this instance, the Cheshire Constabulary considers
that the legitimate interests of the Chief Constable and the data
subjects outweigh those of the requestor and condition 6 does not
apply.
As the information requested relates to a commission
of an offence by the data subject, this falls within the category
of sensitive personal data (section 2(g)) and a Schedule 3
condition for processing is required.
For this type of request the Schedule 3 conditions
which could apply are:
Condition 1 - The data subject has given his
explicit consent …..
No explicit consent exists.
Statutory Instrument 2000 No 417 – The Data
Protection (Processing of Sensitive Personal Data ) Order
2000
Condition 1(1) The processing –
(a) is in the substantial public
interest:
(b) is necessary for the purposes of the
prevention and detection of any unlawful act; and
(c) must necessarily be carried out without the
explicit consent of the data subject so as not to prejudice those
purposes.
In relation to this request there is nothing to
justify that disclosure would be in the ‘substantial public
interest’ or that it ‘must necessarily be carried out without the
explicit consent of the data subject’
Condition 10 The processing is necessary for the
exercise of any functions conferred on a constable by any rule of
law.
In relation to this request as the Constabulary does
not hold any information to support the evidence that disclosure to
the requestor is necessary for the rule of law.
For this request any disclosure of information made by
the police would be unfair and unlawful and the s 40(2)(a)
s40(3)(a)(i) exemption is engaged - this is an absolute
exemption.