By Email to: / 28 January 2014
Our Reference: FOI/87674
Dear Mr McKenzie,
FREEDOM OF INFORMATION ACT 2000
On 13 October 2012, you wrote to the Ministry of Justice, asking for the following information,
Dear HM Prison Service,
With reference to Prison Service Instruction 22/2012: 'Secret' Surveillance of Prisoners, I would like to request the following under Freedom of Information legislation.
According to the publicly released version of the document, under the section entitled Mandatory Action:
1.12 Overt CCTV cameras must not be used for pre planned target use
against prisoners or visitors unless supported by an appropriate RIPA authorisation.
Can you confirm that targets would include specific people or groups of people who are put under surveillance within prison, as the document seems to indicate?
Can you tell me how many specific people have been authorised to be put under surveillance within HM Prison Service at date of writing?
Can you tell me how many of these were not pre-planned, and how many were pre-planned?
I answered your initial request in a letter dated 22 November 2012. You then submitted a request for an Internal Review, which was answered on 31 January 2013, and you subsequently complained to the Information Commissioner’s Office (ICO). We were then in communication with the ICO, which resulted in a further letter to you dated 30 December 2013. Your email response of the same day stated that the statistics you sought were the numbers of covert surveillance operations active on the date of your original letter – that is 13 October 2012.
I can confirm that the Ministry of Justice holds information that you have asked for but in this case we will not be providing it to you as it is exempt from disclosure under Section 31 (1) (a) and (f).
Targets for covert surveillance
RIPA allows NOMS to undertake covert surveillance for the purposes of the prevention or detection of crime or on the grounds of protecting the public. Applications for the authorisation of covert surveillance may specify persons to be subject of covert surveillance. However, that is not necessarily always the case.
The number of people subject to RIPA covert surveillance authorisations and whether the operations were pre-planned
We have taken your question as to mean the instances when we have sought to use such powers or when we have directly authorised the use of such powers. I can confirm that we hold the information that comes within the scope of this part of this part of your request but we believe that it is exempt from the duty to disclose by virtue of Section 31 (1) (a) of the Freedom of Information Act (FoIA). This provides that information is exempt if its disclosure under the Act would, or would be likely to, prejudice the prevention and detection of crime. We also believe that information is exempt under Section 31 (1) (f) of the Act, which provides that information is exempt if its disclosure would, or would be likely to prejudice the maintenance of security and good order in prisons.
In line with the terms of this exemption in the Freedom of Information Act, we have also considered whether it would be in the public interest for us to provide you with the information, despite the exemption being applicable. In this case, we have concluded that the public interest favours withholding the information.
When assessing whether or not it was in the public interest to disclose the information to you, we took into account the following factors:
Public interest considerations favouring disclosure
We recognise that disclosure would provide greater transparency and enable the public to appreciate the frequency of the use of powers available under RIPA. This would increase general understanding of the need for such tactics and the circumstances in which the powers are necessary and proportionate. Members of the public would be able to see the amount of public money being spent on covert operations to allow discussion on whether value for money was being attained and risk being properly managed.
Public interest considerations favouring withholding the information
We believe however that it is more in the public interest to withhold this information because the statistical information you have requested would be likely to be used to subvert the effective use of RIPA powers by indicating the extent to which powers may be used over a specific period. This information would be likely to prove invaluable to those engaged in criminality within prisons, either as individuals or as part of an organised crime group, and would confirm the extent to which covert surveillance was undertaken. If the statistics provided were low when compared to the numbers of prisoners and/or prison establishments in England and Wales, criminals may consider that the deterrent of covert investigations is diminished; if the numbers were high, criminals may alter their criminal behaviour to avoid detection, with the result that investigations would be likely to be frustrated and our ability to counter criminality in prisons reduced. It should also be remembered that NOMS has finite resources and therefore needs to target its investigative capability to address the threats posed by serious criminality. Any information that presents information to criminals about investigative techniques would be likely to mean that NOMS will not easily be able to recover the initiative.
Withholding information does not imply that an authorisation was sought or granted by the Ministry of Justice, or that it was not. I must make it clear that the withheld statistical information may include the number zero.
The consequences of sharing statistical information are unlikely to be limited to crime in prisons but would also be likely to affect communities as prisoners will not have been rehabilitated upon their release from prison, meaning a greater risk to the public.
We reached the view that, on balance, the public interest is better served by withholding this information under Section 31 (1) (a) and (f) of the Act at this time.
You can find out more about Section 31 by reading the extract from the Act and some guidance points we consider when applying this exemption, attached at the end of this letter. You can also find more information by reading the full text of the Act, available at http://www.legislation.gov.uk/ukpga/2000/36/section/31 and further guidance http://www.justice.gov.uk/guidance/foi-exemptions-guidance.htm.
However, outside of the act and on a discretionary basis you may wish to know that all public authorities listed as having powers under RIPA are subject to a regulatory framework of the Office of Surveillance Commissioners backed up by the Investigatory Powers Tribunal (IPT). NOMS is subject to an annual OSC inspection, which provides appropriate safeguards to meet any public interest in ensuring that policy, training, and systems are appropriate and that any covert investigations we may conduct are in accordance with the law. In addition, I am satisfied that the robust process of ensuring that information of public concern is disclosed through the Chief Surveillance Commissioner’s (CSC) annual report to the Prime Minister on general compliance issues, which is also laid before Parliament, provides appropriate assurance to members of the public. The OSC annual reports, which include an annual breakdown of all authorisations by offence type (but not public authority), can be viewed at,
http://surveillancecommissioners.independent.gov.uk/about_annual.html.
You have the right to appeal our decision if you think it is incorrect. Details can be found in the ‘How to Appeal’ section attached at the end of this letter.
Disclosure Log
You can also view information that the Ministry of Justice has disclosed in response to previous Freedom of Information requests. Responses are anonymised and published on our on-line disclosure log which can be found on the MoJ website:
http://www.justice.gov.uk/information-access-rights/foi-requests/latest-moj-disclosure-log
The published information is categorised by subject area and in alphabetical order.
Yours sincerely
BARNEY CLIFFORD
How to Appeal
Internal Review
If you are not satisfied with this response, you have the right to an internal review. The handling of your request will be looked at by someone who was not responsible for the original case, and they will make a decision as to whether we answered your request correctly.
If you would like to request a review, please write or send an email to the Data Access and Compliance Unit within two months of the date of this letter, at the
following address:
Data Access and Compliance Unit (10.34),
Information & Communications Directorate,
Ministry of Justice,
102 Petty France,
London
SW1H 9AJ
E-mail:
Information Commissioner’s Office
If you remain dissatisfied after an internal review decision, you have the right to apply to the Information Commissioner’s Office. The Commissioner is an independent regulator who has the power to direct us to respond to your request differently, if he considers that we have handled it incorrectly.
You can contact the Information Commissioner’s Office at the following address:
Information Commissioner’s Office,
Wycliffe House,
Water Lane,
Wilmslow,
Cheshire
SK9 5AF
Internet address: https://www.ico.gov.uk/Global/contact_us.aspx
EXPLANATION OF FOIA – SECTION 31 - LAW ENFORCEMENT
We have provided below additional information about Section 31 of the Freedom of Information Act. We have included some extracts from the legislation, as well as some of the guidance we use when applying it. We hope you find this information useful.
The legislation
Section 1: Right of Access to information held by public authorities
(1) Any person making a request for information to a public authority is entitled—
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
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,
(c) the administration of justice,
(d) the assessment or collection of any tax or duty or of any imposition of a similar nature,
(e) the operation of the immigration controls,
(f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained,
(g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2),
(h) any civil proceedings which are brought by or on behalf of a public authority and arise out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under an enactment, or
(i) any inquiry held under the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 to the extent that the inquiry arises out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under an enactment.
(2) The purposes referred to in subsection (1)(g) to (i) are—
(a) the purpose of ascertaining whether any person has failed to comply with the law,
(b) the purpose of ascertaining whether any person is responsible for any conduct which is improper,
(c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise,
(d) the purpose of ascertaining a person’s fitness or competence in relation o the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on,
(e) the purpose of ascertaining the cause of an accident,
(f) the purpose of protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration,
(g) the purpose of protecting the property of charities from loss or misapplication,
(h) the purpose of recovering the property of charities,
(i) the purpose of securing the health, safety and welfare of persons at work, and
(j) the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work.
(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).
Guidance
A 'neither confirm nor deny' response may be required in circumstances where to confirm or deny the existence of information would itself communicate sensitive and potentially damaging information, to the detriment of the public good. Its use is particularly relevant in the areas of law enforcement, intelligence and national security. The work of the security and intelligence agencies being necessarily secret, it is a well-established matter of public policy that they do not normally disclose their operational capabilities or limits, what they are investigating, or what information they hold (or do not hold).
However, a 'neither confirm nor deny' response can be used- in appropriate circumstances- for all but one of the exemptions (section 21 - information accessible to applicant by other means).
A decision to neither confirm nor deny whether information is held needs to be taken in a similar manner to a decision to refuse to disclose information. That is to say, you must be certain that one of the Act's exemptions is engaged and (where relevant) that the public interest favours 'neither confirming nor denying' that the information is held. The decision toneither confirm nor denyis separate from a decision not to disclose the information and needs to be taken entirely in its own terms. If you determine that it is appropriate to 'neither confirm nor deny', you should respond saying so and cite the relevant exemption(s) (unless doing so would itself reveal exempt information).
Section 31 is concerned with protecting a wide range of law enforcement interests and its application turns on whether disclosure would be likely to prejudice those interests.
Some interests that are protected by section 31 are drawn quite widely, for example: the administration of justice, the prevention or detection of crime and the operation of immigration controls. But section 31 also applies where the exercise by any public authority of certain specified functions would be prejudiced by disclosure. Those functions include: ascertaining whether a person is responsible for improper conduct, determining the cause of an accident and ascertaining a person's fitness to carry on a profession.