Select Committee on Public Administration Memoranda


MEMORANDUM 13

Submitted by the Association of Chief Police Officers of England, Wales and Northern Ireland (ACPO)

  The Association of Chief Police Officers (ACPO) welcomes this draft Bill, we believe in the principles of transparency, openness and accountability that underpin it. The provision of this legislation will serve to minimise ambiguity and go some way towards removing the unwarranted suspicion that exists in some quarters concerning our policies and practices. However, there will always be areas in policing where confidentiality is required, not because we have anything to hide, but to enable us to fight crime and protect our communities. We welcome legislation that allows us to be open about our business and that recognises our need to protect certain information to maintain our ability to enforce the law. In broad terms we believe that the draft Bill delivers this.

  We do harbour some very serious reservations about the resource implications inherent in the regime as proposed. We will be faced with a difficult challenge to ensure that implementation of Freedom of Information legislation does not detract from our other, core responsibilities, more of this later.

  The consultation period on the draft Bill has been a short one, there has been only limited opportunity for research to be conducted; what follows are the Associations detailed views on the clauses presented in the draft Bill.

PART I.  ACCESS TO INFORMATION HELD BY PUBLIC AUTHORITIES

  We are concerned that there appears to be no provision within clause 4 (or indeed anywhere else within the draft Bill) which enables a public authority to be satisfied that the applicant has supplied his/her true identity. Whilst in many cases the identity of the applicant will be unimportant instances will arise where this is not the case. Given the proposals that public authorities will not be obliged to comply with repeated or vexatious requests for information the need to be satisfied with the identity of the applicant is clear. A similar need is evident in cases where third party consent for release of information is sought since the identity of the applicant may have a bearing on the data subjects decision to provide consent or otherwise. We consider it essential to be able to verfiy identify in the circumstances outlined above.

  We welcome the decision to rename the Data Protection Commissioner as the Information Commissioner as proposed in clause 5. We have established excellent working relationships with the Data Protection Registrar and have found these to be most useful in meeting our responsibilities under the Data Protection Acts. The proposals in the draft Bill in respect of access, accuracy and enforcement to a large degree mirror, with certain important exceptions, existing rights and obligations imposed by the Data Protection Act. Clearly the emphasis on personal rights of access in respect of each piece of legislation is different, however, we consider that by combining the responsibilities in the office of a single Information Commissioner, the potential for tension between the two sets of statutory obligations will be minimised and should ensure that regulatory guidelines will seek to provide an equitable balance.

  The Consultation Document that accompanies the draft Bill states that there will be a requirement to provide information about the conduct of inquiries. However, the draft Bill makes no specific provision in this regard; it is merely one of the uses to which clause 8 can be put. The Home Secretary has indicated that the police should reveal such information as the number of officers engaged on an inquiry. We are concerned at the effect that the creation of this expectation will have, especially with relatives of victims of serious crime. We do, as far as possible, keep the families of victims informed as to the progress of inquiries and we are aware of the importance placed on this police role by Sir William Macpherson in his Report on the Stephen Lawrence Inquiry, but we would be concerned if this became a statutory duty. The majority of murders are committed by relatives and close friends of the victim although this relationship between offender and victim is not always evident at the start of an inquiry. It almost goes without saying that we would not want to fully report the progress of an inquiry to those who might become suspects. We acknowledge the existence of the exemption available to us in these circumstances as outlined in the draft Bill but are alive to the fact that it has not been universally welcomed in its current form. Any amendment in this field would have severe consequences for crime investigations.

  We welcome clause 13 which deals with vexatious or repeated requests but we are anxious that the terms "vexatious" (in sub-section 1) and "reasonable interval" (in sub-section 2) are clarified. This will be particularly important since a failure to comply with a request for information on this basis will undoubtedly be viewed as obstructive by the applicant.

  Moving to clause 14 and the issue of discretionary disclosures we have some concerns regarding sub-section 5 which allows a public authority to impose conditions regarding the use or disclosure of information supplied at the discretion of the authority. It seems that, without some form of sanction being available in the event that the conditions are breached there is little point in imposing conditions at all. We would be reluctant to take the risk of releasing information which we felt warranted some conditions to be applied if no deterrent for non-compliance with those conditions existed.

PART II:  EXEMPTIONS FROM DUTY IMPOSED BY SECTION 8

  We endorse the class exemption afforded to the National Criminal Intelligence Service (NCIS) within the terms of clause 18. The NICS are an intelligence service and their work contributes directly to the maintenance of national security. Their inextricable links with the Security Service, the Secret Intelligence Service, and Government Communications Headquarters means that there is no other viable option other than to afford the NCIS the same safeguards as proposed for these organizations.

  Whilst there is some disappointment at the lack of an institutional exemption for law enforcement we do consider that the safeguards provided by clause 25, which deals with investigations and proceedings conducted by public authorities, and clause 26, which deals with law enforcement, are workable within a Freedom of Information regime.

  Dealing specifically with clause 26 we are content that a prejudice test facilitates an acceptable balance between the requirements for openness and the public interest in terms of investigative efficiency. There must be a recognition that information and intelligence is absolutely critical to policing. Some traditional sources of evidence have, over time, lost their efficacy. We must be able to protect information about our investigative methods and our intelligence, since they provide our most effective response to difficult investigations. The prevention and detection of crime is our core business and our ability to perform effectively in this regard is central to the maintenance of a safe and just society. The provision of information to the detriment of our ability to fight crime can not be in the public interest. We fully acknowledge the corrosive nature of excessive secrecy and recognise that our activities will always be of interest to the public. We believe that the exemption afforded to law enforcement under clause 26 strikes an appropriate balance but would caution that any reduction in the level of protection afforded in this draft Bill will seriously hinder law enforcement efforts in this country.

PART III.  GENERAL FUNCTIONS OF SECRETARY OF STATE, LORD CHANCELLOR AND INFORMATION COMMISSIONER

  We have no comments to make on this part of the draft Bill.

PART IV.  ENFORCEMENT

  We have no comments to make on this part of the draft Bill.

PART V.  APPEALS

  We have no comments to make on this part of the draft Bill.

PART VI.  HISTORICAL RECORDS AND THE PUBLIC RECORD OFFICE

  We have no comments to make on this part of the draft Bill.

PART VII.  AMENDMENTS OF DATA PROTECTION ACT 1998

  We have some concerns regarding the effects of clause 62 on the Data Protection Act 1998. Our particular concerns centre on the apparent exclusions of Sections 55 (unlawful obtaining etc of personal data) of that Act in so far as unstructured data is concerned. We see no reason why personal data of this type should be afforded less protection than personal data maintained in a structured format. One can envisage the situation where a prosecution is contemplated for unlawful obtaining of personal data from a structured file but in identical circumstances is discounted merely because the data is in an unstructured format. We would argue that the principle is more important than the manner in which information is held.

PART VIII.  MISCELLANEOUS AND SUPPLEMENTAL

  We have no comments to make on this part of the draft Bill.

FINANCIAL EFFECTS OF THE DRAFT BILL

  We recognize the value of openness and acknowledge that this can not be achieved without some financial cost. However, we are concerned at the scale of the burden that implementation of the legislation is likely to place on the Police Service. Coupled with the Government's requirement for the Service to produce 2 per cent year on year efficiency savings the impact of the legislation will have a significant effect on police budgets and resourcing.

  Early research in one Force, Kent Constabulary, suggests that set up costs to prepare for implementation could be in the order of £200,000 with increased revenue costs for subsequent years being estimated at around £100,000. These costs do not include the setting up and maintenance of a publication scheme as required by clause 6.

  In terms of revenue police forces are likely to suffer a loss as a result of Freedom of Information legislation. Currently, police forces are free to set local charges for abstracts, these charges reflect the de facto cost of collating and providing the information. Under the proposed regime solicitors and others wishing to obtain access to information, where the Chief Constable is not joined in action, may well utilise through their clients the statutory access process where the fee will be a fraction of that currently payable. The loss of revenue will be a significant one.

  The resource demands of responding to requests for information will be substantial. Police forces will need to establish structures and procedures, the task of processing applications will be complex and time consuming. Considerable expertise will be required to carry out this function, it will not be a role for junior members of staff. We acknowledge that in some cases the provision of information will be a reasonably straightforward affair, but given the nature of our role we can expect many requests where the process will involve a complex multi step process of:

    —  Data identification, location and collation;

    —  The preparation of a costing evaluation and the provision of a fee notice;

    —  Evaluation of the information in terms of exemptions which may apply and, when required, consideration as to whether discretionary disclosure is appropriate;

    —  Correspondence with the applicant notifying the decision and, if non-disclosure or a decision concerning means of communication (clause 11) is disputed, details of the internal review process;

    —  Transcription, blocking out text, or the writing of a summary or digest, or arranging and supervising of personal viewing;

    —  In extreme cases an additional step of responding to the Commissioner under clause 44 will also be necessary.

  As can be seen the process of responding to requests for information will be a resource intensive one.

  There will also be significant training implications for the Police Service, and again this will place demands on funds and resources. At a basic level all staff will need to be aware of the effects of the legislation in terms of the need for accuracy and the offence created under clause 66. Progressively more detailed training will then be required for those responsible for processing and replying to applications for information.

  We do not consider that we are over-stating these financial and resource implications of implementing this legislation. The American experience gives some indication of the level of requests that the police can expect to receive. The Federal Bureau of Investigation (FBI) have 400 staff, including many lawyers, totally committed to dealing with requests of this nature. It is clear that, once criminals realise the value of making requests, they begin to exploit the system. It would seem that, as a matter of course, significant criminals submit access applications as a tactic to cause administrative chaos and to learn from their mistakes. At one stage in 1998 the FBI had 10,000 requests awaiting a response. Given that, in numerical terms the FBI is smaller than the Metropolitan Police Service the scale of the task we potentially face is clear. We will be anxious to continue to deliver a quality policing service but the fact remains that without additional funding to address Freedom of Information legislation we will find it increasingly difficult to do so.

  In conclusion we welcome the draft Bill and, in particular the protection quite properly afforded to information and intelligence so vital to the effective performance of the Police Service. Our major concerns centre on our ability to continue to provide a high quality service and to work within Freedom of Information legislation without the additional funding that is clearly required.

July 1999


 
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