Custody records & PACE compliance 749/2024
FOI Reference: 749/2024
Request:
Custody Records and PACE Code C Compliance:
- Has your police force previously allowed (or otherwise permitted), and/or does it currently allow (or otherwise permit) the use of ellipses ("...") within custody records? Please confirm this explicitly with a 'yes' or a 'no' as your response.
Statutory Requirements and Compliance:
- Please provide a copy of your internal guidelines, guidance, policies, and procedures that relate to the accurate and complete recording of your Force's custody records in accordance with PACE Code C.
- Provide a copy of the specific internal directive, policy, guidance, and procedures (created and or updated within the last 5 years) that detail the permissible use of ellipses within your Force's custody records under your Force's internal guidelines and policies?
Audit and Oversight:
- Have there been any internal or external audits, reviews, or assessments of your Force's custody record practices (within the last 10 years or alternatively, and in the public interest, such lesser period or reduced outer limit of what your Force considers to be a reasonable time- frame)? If so, please provide copies of these documents.
- Has there been any correspondence, guidance, or instructions from oversight bodies such as the Independent Police Complaints Commission (IPCC), Independent Office for Police Conduct (IOPC) or Home Office regarding your Force's custody records? If so, please provide copies of these documents.
Additional Information:
- Please include all disclosable correspondence, directives, or communications which you hold that clarify the permissible practices for recording information in custody records under PACE Code C.
Clarification Q:
With regards to Q6, does this refer to all correspondence provided to staff through email? Can you provide a time range for which you require information for.
Clarification A:
In respect of Q6, it is solely in relation to Custody Records.
The period referred to is "within the last 10 years or alternatively, and in the public interest, such lesser period or reduced outer limit of what your Force considers to be a reasonable time- frame".
Response 1:
I can confirm that Dyfed-Powys Police does hold the information requested, as outlined below.
Yes.
Response 2:
I can confirm that Dyfed-Powys Police does hold the information requested, as outlined below.
Please find attached a copy of the Force’s Custody Operating Procedure.
Response 3:
I can confirm that Dyfed-Powys Police does hold the information requested, as outlined below.
There is no direct guidance around the use or non-use of ellipses.
Response 4:
I can confirm that Dyfed-Powys Police does hold the information requested, as outlined below.
On a monthly basis Dyfed-Powys Police audit approximately 20-25% of Custody records for content accuracy, treatment of detainees, detainee journey, children in custody, foreign nationals, use of force and strip searches. These documents are subject to the Section 14 exemption, details of which are explained further below.
On a BI monthly basis, the Custody Independent Scrutiny panel overseen by the OPCC, reviews a dip sample of custody records on thematic areas such as Children in custody, Vulnerable detainees, Use of force.
In 2017 the HMIC inspected Dyfed-Powys Police, this is the link to the report:
Please see attached document:
Email from HMIC re report 2017*
*Please be advised that some content has been redacted as it is exempt in line with Section 40(2) Personal Information. Please see further below for an explanation of this exemption.
Explanation of applied exemptions:
Section 14(1) – Vexatious requests of the Act provides:
Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.
I have taken cognisance of the Information Commissioners guidance on Vexatious requests which can be found at:
Dealing with vexatious requests (section 14) | ICO
First and foremost, when considering whether to make a request for information ‘Vexatious’ consideration has been given to the ICO Guidance in relation to vexatious requests (section 14) which stipulates what the ICO expects from a public authority when considering section 14(1). Gathering evidence in order to identify a developing pattern of behaviour is an important factor as well as the context and history in which a request is made will often be a major factor in determining whether the request is vexatious. The public authority will need to consider the wider circumstances surrounding the request before making a decision as to whether section 14 (1) applies.
ICO guidance on the subject states:
‘Section 14(1) may be used in a variety of circumstances where a request, or its impact on a public authority, cannot be justified. Whilst public authorities should think carefully before refusing a request as vexatious they should not regard section 14(1) as something which is only to be applied in the most extreme of circumstances.
In cases where the issue is not clear-cut, the key question to ask is whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress. This will usually be a matter of objectively judging the evidence of the impact on the authority and weighing this against any evidence about the purpose and value of the request. The public authority may also take into account the context and history of the request, where this is relevant.’
Accordingly, I have classified this request as vexatious under Section 14(1) by gathering evidence under the following indicators in order to identify whether the request is burdensome.
Burden on the Authority:
FOI legislation is designed to provide opportunities whereby the public can shine a torch on the decision making and workings of a public authority. However, this does not mean that information has to automatically be disclosed. To do so without some consideration would be reckless and likely to breach other relevant legislation, such as the Data Protection Act (DPA)/General Data Protection Regulation (GDPR).
In this particular case, it has been identified that for the last 9 months, approximately 150 custody records have been audited each month. Prior to disclosing the requested information, every custody audit document would require reviewing, page by page, in order to establish whether or not there are any concerns with disclosing the contents detailed on each page. This is due to the fact that they contain information that could attract exemptions, such as but not limited to, Section 31 (Law Enforcement) or Section 40 (Personal Information), and where exemptions apply the information would need to be redacted.
To review all 1350 custody audit documents, which vary in length and content of information, and to redact where necessary would be a time consuming task and it would be a burden on the force to undertake this task. This is due to the fact that the Freedom of Information (FOI) Decision Maker would be required to review and understand the content of every page within every custody audit document in order to make the decision on whether exemptions apply, and to which part the exemptions apply to. For example, considerations for Section 40 in relation to any names/medical details/employee names that no longer work for the force.
It has been estimated that to review and to take into account the necessary considerations under the FOI Act would take a minimum of 27 minutes per custody audit, which would equate to 607.5 hours. To undertake this task would require a Decision Maker within the FOI Unit to be abstracted from normal duties for approximately 75 working days in order to provide an FOI compliant response in respect of this matter.
Please note that anything older than 9 months, there was no set structure in storing Custody Audit documents. Between 2014-2024 there have been 41 Inspectors who have worked in Custody roles, 23 of which are still in Force. The Inspectors would need to be contacted to establish if they still had access to any Custody Audit documents and if so, the documents would then be subject to the same review and redacting procedure which would increase the above time estimate.
As at 19/09/2024 there are currently 911 FOI requests logged within the Disclosure Unit and 85 of those requests are currently open requests awaiting completion and this does not include all of the other areas of work in which the Disclosure Unit covers i.e. Court Orders, Subject Access Requests etc. There are currently 3 FTE Decision Makers dealing with FOI requests and one of those decision makers undertakes other work alongside dealing directly with FOI requests. To abstract a Decision Maker from normal duties to undertake this one task would be a considerable burden on the Disclosure Unit, which would significantly undermine the units other obligations in the processing of the 85 open FOI requests and other disclosure work. Although there is no doubting the legal motives or responsibilities for requesting the said information it is the opinion of Dyfed-Powys Police that the effort to meet the request will be oppressive in terms of the strain on time and resources that the authority cannot reasonably be expected to comply.
Please note that there is an HMIC document which has been deemed relevant to this request however it would also need to be reviewed and redacted which therefore forms part of the time estimate detailed above.
Additionally in considering the above I also make reference to a previous Decision Notice from the ICO, as outlined by the below link, whereby in similar circumstances the ICO concluded at that time that he accepts that the burden is such that it can be properly categorised as being grossly oppressive and dealing with the request under such circumstances cannot be justified. Accordingly, whilst he considers this case to be finely balanced, the Commissioner finds that section 14(1) has been appropriately applied in this instance.
https://ico.org.uk/media/action-weve-taken/decision-notices/2014/1025456/fs_50539606.pdf
Conclusion and Decision:
In considering the aforementioned facts I am satisfied that this request meets the criteria (as outlined below) pursuant to the provision of Section 14(1) of the Freedom of Information Act 2000 whereby the request is deemed to be ‘vexatious’ as it would pose a substantial burden on the authority.
Section 14(1) of the Act provides:
Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.
Accordingly, I have classified your request as vexatious under Section 14(1) for the reasons as outlined above.
Section 40(2) Personal Information:
Section 40(2) is a class-based absolute 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. There is also no requirement to carry out a Public Interest Test.
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.”
UK General Data Protection Regulation
Article 5 of the UK GDPR – ‘Principles relating to processing of personal data’ provides:
“1. ‘Personal data’ shall be
(a) Processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency);
(b) 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…
2. 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 an individual. In this particular case, names of persons not relevant to this request have been redacted and to release such information would be a direct breach of Data Protection legislation. Therefore, 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.
Response 5:
I can confirm that Dyfed-Powys Police does hold the information requested, as outlined below.
No.
Response 6:
I can confirm that Dyfed-Powys Police does hold the information requested, as outlined below.
Please see responses 2.
(This is a response under the Freedom of Information Act 2000 and disclosed on 23/09/2024)