Airwave Digital Radio Network
Request:
I request a copy of your force's policy and/or procedure on the use of the Airwave digital radio network. I would like to receive this in a format accessible to a screenreader (e.g. not a scanned PDF).
I am happy for you — and would, in fact, encourage you — to make whatever redactions you require in the interests of operational or commercial sensitivity. I would ask that you consider redactions to whatever extent they are necessary, as opposed to withholding the policy and/or procedure entirely.
Response 1:
I can confirm that Dyfed-Powys Police does hold the information requested, please see the attached policy document; however we are exempting part of that information as we believe that the following exemptions are relevant:
Section 31(1)(a)(b) Law Enforcement
Section 40(2) Personal Information
Section 31(1)(a)(b) Law Enforcement:
- 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 -
- the prevention or detection of crime
- the apprehension or prosecution of offenders
Section 31 is a prejudice based qualified exemption and as such, there is a requirement to provide details of the harm as well as the public interest test.
Evidence of Harm
Under the Act, we cannot, and do not request the motives of any application for information. We have no doubt that the vast majority of requests made under the Act are legitimate and the applicants do not have any ulterior motives. However, in disclosing information to one applicant, we are expressing a willingness to provide it to anyone in the world. This means that a disclosure to a genuinely interested and concerned person automatically opens it up for a similar disclosure, including those who would use the information to gain an advantage over our ability to exercise our core function, which is Law Enforcement.
In considering whether or not this information should be disclosed, consideration has been given to the potential harm that could be caused by disclosure.
The police service is charged with enforcing the law, preventing and detecting crime and protecting the communities we serve. The general public are also aware that modern day policing is intelligence led and that there are changes on a day to day basis. Disclosure of information in respect of Airwave Service could undermine the security and Integrity of the service which would cause operational harm to the Dyfed-Powys Police Force as well as potentially place officer’s safety at great risk as well as that of the general public by affecting our ability to fulfil our core function of law enforcement. The release of such information would be invaluable to those with criminal intent as criminals would be able to identify force tactical capabilities and use this knowledge to their own advantage in furthering criminal activity not only within this force but also throughout the country.
This would or would be likely to prejudice the prevention or detection of crime and the apprehension or prosecution of offenders.
Public Interest Test
Section 31 - Considerations favouring disclosure:
Factors favouring the disclosure of this information would include better awareness regarding the Airwave service.
Section 31 - Considerations favouring non-disclosure:
Factors favouring non-disclosure would be that it would compromise law enforcement tactics. This would have an impact on police resources and procedure and also could undermine the security and integrity of the Airwave Service.
Balance Test
After considering the advantages and disadvantages in disclosure, it falls upon Dyfed-Powys Police to conduct a balance test on the issues. The strongest arguments for release, which is better awareness, needs to be weighed against the strongest argument for non-release, which in this case is Effective Law Enforcement. The Police Service is tasked with the prevention and detection of crime and protecting the public. Whilst there is a public interest in this subject there is a very strong public interest in safeguarding the protection of the public and the effective use of police resources.
Therefore, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
Section 40(2) Personal Information:
Section 40(2) applies to third party personal data and is exempt from disclosure under the Freedom of Information Act 2000 if disclosure, in relation to data subject to law enforcement processing, would breach any of the data protection principles contained within Part 3 - Chapter 2 of the Data Protection Act 2018. Under Section 34 within Chapter 2 “The Controller in relation to personal data is responsible for and must be able to demonstrate, compliance with” Chapter 2. Such information would not be released under the Freedom of Information Act 2000 unless there is a strong public interest. One of the main differences between the Freedom of Information Act 2000 and the Data Protection Act 2018 is that any information released under FOI is released into the public domain, not just the individual requesting the information and disclosure under the Act must be made with that in mind. As such, any release that identifies an individual through releasing their personal data, even third party personal data is exempt.
Personal data is defined under Section 3 of the Data Protection Act 2018 as:
“(2) ‘Personal data’ means any information relating to an identified or identifiable living individual (subject to subsection (14)(c)).
(3) ‘Identifiable living individual’ means a living individual who can be identified, directly or indirectly, in particular by reference to—
(a) An identifier such as a name, an identification number, location data or an online identifier, or
(b) One or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.”
All members of the public including those employed by the force have an intrinsic right to privacy and these rights are protected by virtue of the Human Rights Act, the Data Protection Act 2018 and the General Data Protection Regulation (GDPR) and a public authority must not interfere with that right. Any release of the information subject to the exemption is likely to compromise those rights.
Data Protection Act 2018
Part 3 – Law Enforcement – Chapter 2 Principles Section 35
The first data protection principle:
“(1) The first data protection principle is that the processing of personal data for any of the law enforcement purposes must be lawful and fair.”
General Data Protection Regulation
Article 5 of the GDPR – ‘Principles relating to processing of personal data’ provides:
“1. ‘Personal data’ shall be
- Processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency);
- Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest…
- The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).”
Dyfed-Powys Police would not want to disclose any information that could potentially identify individuals. In this particular case, to release officer and staff names would lead to the identification of that individual. To release such information would be a direct breach of Data Protection legislation i.e. the first data protection principle and as a consequence I am satisfied that Section 40(2) Personal Information exemption is applicable to the release of the information.
The Section 40 exemption is a class-based exemption. This means that the legislators when writing the legislation considered that the release of such information under the Freedom of Information Act 2000 would cause harm to the public authority or individual concerned. There is therefore no requirement to carry out a HARM Test in respect of such information.
The Section 40 exemption is in part qualified and in part absolute, in the present case it would be absolute as to release the information would breach Data Protection legislation and therefore there is no requirement to carry out a public interest test.