Under the provisions of the Freedom of Information Act I would
like to request the following:
The number of times that your force has granted authority under
the Regulation of Investigatory Powers (RIPA) Act 2000 to view
“private” pages on Facebook in each of the last three years. (I
would prefer figures in financial years, if possible)
If I need to clarify this request please contact me as soon as
possible via email or on either of the two numbers below. I would
prefer any responses to be sent to me via email, if possible.
In accordance with section 1(1) (a) of the Act our response is
provided below;
Section 1 of the Freedom of Information Act 2000 (FOIA) places
two duties on public authorities. Unless exemptions apply, the
first duty at Sec1(1)(a) is to confirm or deny whether the
information specified in a request is held. The second duty at
Sec1(1)(b) is to disclose information that has been confirmed as
being held. Where exemptions are relied upon S17 of FOIA requires
that we provide the applicant with a notice which: a) states that
fact b) specifies the exemption(s) in question and c) states (if
that would not otherwise be apparent) why the exemption
applies.
The Cheshire Police Service 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 44(2) Prohibitions on Disclosure
Section 23(5) Information relating to the Security bodies;
Section 24(2) National Security;
Section 30(3) Investigations;
Section 31(3) Law enforcement;
This should not be taken as conclusive evidence that any
information that would meet your request exists or does not
exist.
Sections 44 and 23 are absolute exemptions which means that the
legislators have identified that harm would be caused by release
and there is no requirement to consider the public interest
test.
Sections 24(2), 30(3)), and 31(3)are qualified and require us to
carry out a public interest balancing test before they can be
relied upon.
In respect of all three qualified exemptions we have determined
that in all the circumstances of the case, the public interest in
maintaining the exclusion of the duty to confirm or deny outweighs
the public interest in confirming whether we hold the
information.
The Police Service is committed to demonstrating proportionality
and accountability regarding surveillance techniques to the
appropriate authorities. However, if the Police Service were to
either confirm or deny that information is held,, other covert
surveillance tactics will either be compromised or significantly
weakened. If the Police Service denies a tactic is used in one
request but then exempts for another, requesters can determine the
‘exempt’ answer is in fact a technique used in policing. The impact
could undermine national security, any on-going investigations and
any future investigations, as it would enable targeted
individuals/groups to become surveillance aware. This would help
subjects avoid detection, and inhibit the prevention and detection
of crime.
Factors Favouring Compliance with Section 1(1) a (To confirm or
deny)
Confirming or denying that these powers have been used to view
private Facebook pages would increase public scrutiny of police
actions and in turn hold the police service to account.
Confirmation or denial of the use of this operational tactic
will enable better informed public debate.
Factors favouring the need to NCND
To confirm or deny if this information does or does not exist
will render policing tactics ineffective as previously outlined. A
legislative scrutiny framework already exists for RIPA activity:
Police surveillance activity is subject to annual inspection by the
Interception of Communications Commissioners Office (IOCCO) and
Office of Surveillance Commissioners (OSC). These inspections
assess each constabulary’s compliance with the legislation and a
full report is submitted to the Prime Minister and Scottish
Ministers containing statistical information.
Balancing Test
The points above highlight the merits of confirming or denying
the requested data exists. It is appreciated that members of the
public will naturally be interested in techniques employed for
surveillance. Likewise, we also understand some people believe
surveillance (in any form) is used too widely, and therefore an
unnecessary intrusion into their privacy. However, taking into
account the fact that the Police Service are already scrutinised as
detailed above and effective operational law enforcement would be
compromised by any disclosure, at this moment in time, it is our
opinion that for these issues the balance test for confirmation or
denial is not made out.
No inference can be taken from this refusal that the information
you have requested does or does not exist.