I have considered your request for information within the
provisions set out by the Freedom of Information Act 2000.
In relation to my first duty under the Act, which is to confirm
if the requested information is held by the Cheshire Constabulary,
I can confirm that I have located some information relating to
question 2 of your request
In relation to my second duty under the Act, which is to provide
the requested information to you, I have carefully considered your
request and I am not obliged to release the information to you.
This letter serves as a Refusal Notice under Section 17 of the
Freedom of Information Act 2000 (the Act).
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. For question
1, the Cheshire Constabulary can neither confirm nor deny
that it holds the information you 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 30(2) Criminal Investigations
Section 30 (Investigations and proceedings conducted by
public authorities) of the Act states
(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).
This is a qualified exemption for which I am required to conduct
a public interest test.
The use of informants by the police service is well known and is
governed by the Regulation of Investigatory Powers Act, 2000.
Factors favouring confirming or denying that information is held
for Section 30
Confirmation or denial that any information exists in relation
to the number of informants that were first recorded whist they
were in prison or on remand would enlighten members of the public
as to how many persons had received payments for information by the
Police and the circumstances in which they were recruited. This may
go some way to promoting awareness and accountability where
expenditure of public funds is concerned, and could lead them to
challenging whether the expenditure is value for money in the
circumstances.
Release of this information would assist in any public debate on
the Police Service use of informants. Such debate at the moment
will be based on a lack of information provision and could be
subject to inaccurate rumour and speculation.
Factors against confirming or denying that information is held
for Section 30
Many investigations rely on the use of information from CHIS.
Those charged with managing the processes and the welfare of the
individuals concerned make a solemn promise that they will do all
they can to protect the well being of the persons involved.
Confirmation or denial that any information were held in this case
would suggest to informants that the solemn promise given to them
to not place them at risk is not a cast iron guarantee as we can be
forced to make disclosures under FOI. This would result in the
withdrawal of co-operation from current investigations and a
reluctance to assist in the future.
This can be evidenced by the very recent court ruling with
regard to protecting the anonymity of witnesses which immediately
resulted in the collapse of a £6m trial and urgent government
action to restore the previous rules.
Any reduction in the amount of information received by the
police will have an adverse effect on the way that we conduct
investigations. This is primarily based on the national
intelligence model and any disruption to that process will make it
less effective.
An informant provides the information solely on grounds that it
is completely confidential. Disclosure, of any kind, could have an
adverse affect on the health and well being of an informant.
This view is based on the professional knowledge and
understanding of those involved in the informant handling process.
Informants are briefed with regard to the risks they may face, and
receive assurances that these risks will not be increased by any
deliberate action the police may take. This disclosure compromises
those assurances that these individuals have been given.
Release of this information may adversely affect public safety
if the criminal fraternity are provided with a tactical advantage
over the Police. As outlined previously, this information, linked
with related subject matter, begins to assist those with illegal
intent.
Release of information would act as a deterrent to the public to
provide information to the force. If a relationship between the
force and members of the public/CHIS were impeded, the gathering of
information to enable the force to perform its public service
functions would become more difficult than it already is. The use
of informants takes place in an environment of absolute trust and
confidence. Anything which undermines this ethos would have a
detrimental effect, reducing the quality of information the service
receives.
Balance test for neither confirming nor denying that the
information exists
Police forces would never disclose information that would put
people at risk or compromise law enforcement. By confirming or
denying whether the requested information is held in this case
would mean that criminal investigations would be less effective and
the small benefit in increased public awareness would not be
adequate compensation for such an impact on society.
We would draw your attention to Case FS50078588 – Guardian
Newspaper v ICO and Avon and Somerset police (Jeremy Thorpe). It
was established in this case that the disclosure of information
particularly where Sec 30 is engaged, need only be for a tangible
community benefit and the public interest is not defined by matters
that the public would simply just find interesting.
We would also suggest that any small community benefit is
already catered for in other ways which reduces the need for FOIA
to do so. Firstly, there is the Audit Commission Act where all
police expenditure is monitored by an independent audit process.
This ensures that funds are not used inappropriately and guarantees
that fact to the public. In addition to this legal regulation, the
police authority also maintains an interest in ensuring the correct
expenditure of public money and produce annual reports which are
released to the community. This negates the need for any further
requirements to disclose how public funds are spent.
Secondly, the use of informants is an extremely sensitive area
of police business and in our opinion is already substantially
monitored and regulated through strict guidelines and procedures
outlined within the Regulation of Investigatory Powers Act, whilst
also taking into account the provisions of the Human Rights Act
when deploying such resources. In addition, the Office of the
Surveillance Commissioner scrutinises police activity in this area
and reports to the prime minister on an annual basis. He chooses
not to produce the requested information as part of his annual
report, indicating the sensitivity he also considers in making such
information widely available within the public domain. Such robust
processes ensure that any individual employed by the police service
aren’t exploited or subject to inappropriate action.
It is therefore our opinion that the balance lies in favour of
neither confirming nor denying that the information exists.
In accordance with the Act, this letter represents a Refusal
Notice for this particular request. For question
2, the Cheshire Constabulary can confirm that it holds the
information you requested, but the force is unable to release the
information in the format that you have asked for, by virtue of the
following exemption:
Section 30(2) Criminal Investigations
However, in order to be helpful and provide you with the
majority of the information that you have requested, the Cheshire
Constabulary can disclose that the total payments to informants for
the financial year 2009/2010 was recorded as
£66,179 by this force for the obtaining of
information to combat crime.
Public Interest Test for Section 30
Factors favouring disclosure of the information for Section
30
By disclosing the total payments to informants by calendar year
would enable the public to see how their funds are being allocated,
especially as the issue of informants is of a sensitive national
nature.
Factors favouring the non-disclosure for Section 30
By disclosing the total payments to informants by calendar year
would allow those intent on criminal activity against informants to
calculate the amount paid to them over a three month period. This
then might encourage existing speculation as to who the informants
are, putting their lives at risk and jeopardising ongoing
investigations. This would hinder the prevention and detection of
crime, and also prejudice our ability to maintain confidential
sources. Consequently, the forces future law enforcement
capabilities would be affected.
Balance test
The Police service is tasked with protecting the community and
solving crime and they would not disclose information if it would
jeopardise those important roles. Although the amount paid to
informants is a sensitive issue and the public are entitled to know
how their funds are spent, this does not outweigh the forces
obligations to the public, in the prevention and detection of
crime. As has already been mentioned, informants play a vital role
in helping the police with this task. It is therefore our opinion
that the balance lies in favour of non-disclosure of the
information in the requested format, particularly given the
disclosures already made by financial year.
Additionally, the Cheshire Constabulary can neither confirm nor
deny that they hold any other information relevant to the whole of
your request by virtue of the following exemptions:
Section 23(5) Information relating to security bodies listed at
Section 23 (3)
Section 24(2) National Security
Section 23 of the Act states
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
(1) Information which does not fall within section 23(1) is
exempt information if exemption from section 1(1)(b) is required
for the purpose of safeguarding 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.
The police service works in partnership with other agencies in
order to combat issues such as terrorism and organised crime. As
such, information may sometimes be provided by bodies listed at
section 23(3). In this case, I am unable to confirm or deny whether
the Cheshire Constabulary holds any other information relevant to
your request and sections 23 (5) and 24(2) are cited in conjunction
to protect the involvement or non-involvement of bodies listed at
section 23(3).
Section 23(5) is an absolute exemption and as such no public
interest test is required. Section 24(2) is a qualified exemption
and as such there is a requirement to complete a test of the public
interest in confirmation or denial.
The above quoted total payments to informants does not include
any payments made to informants where funding may have been
supplied by exempt bodies.
Harm for neither confirming nor denying that any other
information is held for Section 24
Disclosure of informants data could impact on the recruitment
and retention of CHIS in general, due to the perception of (rather
than the actual) risk of identification. In a recent Information
Tribunal case relating to the payments made to CHIS in Croydon
(EA/2010/0006), it was accepted that this argument applied as much
to CHIS providing intelligence in relation to national security
concerns as to CHIS engaged in countering more traditional criminal
threats. In this way, the disclosure of payment information would
damage national security through discouraging current national
security CHIS from cooperating with the police service in other
geographical areas, or preventing the recruitment of national
security CHIS in the future – regardless of whether the area in
question actually currently runs CHIS reporting on serious crime,
terrorist or other threats.
Public Interest test for S24
Factors favouring confirming or denying that any other
information is held for Section 24
Confirmation or denial that any other information exists
relevant to the request would lead to a better informed public and
the public are entitled to know how public funds are spent. The
information simply relates to national security and disclosure
would not actually harm it.
Factors against confirming or denying that any other information
is held for Section 24
Other organisations outside the police service are also widely
engaged in rewarding informants in a number of ways, and therefore
by confirming or denying that any other information exists relevant
to the request would harm the close relationship that exists with
such organisations, where trust and confidence in this specific
area has been built up in the exchange of information and financial
assistance during the Criminal Justice process.
To confirm or deny whether the Cheshire Constabulary holds any
additional information would allow inferences to be made about the
nature and extent of national security related activities which may
or may not take place in a given area. This could enable terrorist
groups to take steps to avoid detection, and as such, confirmation
or denial would be damaging to national security
By confirming or denying any policing arrangements of this
nature would render national security measures less effective. This
would lead to the compromise of ongoing or future operations to
protect the security or infra-structure of the UK and increase the
risk of harm to the public.
Balance test for Section 24
The Police Service is charged with enforcing the law, preventing
and detecting crime and protecting the communities we serve. 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 place the safety of an individual at risk or
undermine National Security. 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 threat from criminals, there is a very strong public
interest in safeguarding both national security and the integrity
of police investigations and operations in this highly sensitive
area. As much as there is public interest in knowing that policing
activity is appropriate and balanced in matters of national
security, this will only be overridden in exceptional
circumstances.
It is therefore our opinion that for these issues the balancing
test for confirming or not that information is held, is not made
out.