Information Access Team Shared Services Directorate 2 Marsham Street, London SW1P 4DF Switchboard 020 7035 4848 E-mail: [email protected] Website: www.homeoffice.gov.uk

Mr Jeff Hayward [email protected]

3 May 2011

Dear Mr Hayward

Freedom of Information request (our ref. 17424): internal review

I am writing further to my e-mail of 6 April 2011, about your request for an internal review of our response to your Freedom of Information (FoI) request relating to a Mr Martin McGartland.

I have now completed the review. I have considered whether the correct procedures were followed and assessed the reasons why we neither confirmed nor denied we held the information requested. I confirm that I was not involved in the initial handling of your request.

My findings are set out in the attached report. My conclusion is that the original response was correct to neither confirm nor deny whether any information is held in accordance with sections 23(5), 24(2) and 31(3) and 40(5) of the Freedom of Information Act 2000, although we were at fault in citing section 40(5)(a), when we should have cited section 40(5)(b)(i) to neither confirm nor deny we hold any personal information in relation to McGartland. These exemptions relate to information about, or relating, to certain security bodies, national security, law enforcement and personal information. This should not be taken as conclusive evidence as to whether such information does or does not exist.

This completes the internal review process by the Home Office. If you remain dissatisfied with the response to your FoI request, you have the right of complaint to the Information Commissioner at the following address:

The Information Commissioner Wycliffe House

Page 1 of 12 Water Lane Wilmslow Cheshire SK9 5AF

Yours sincerely,

L Fisher Information Access Team, Home Office

Page 2 of 12 Internal review of response to request under the Freedom of Information (FoI) Act 2000 by Mr Hayward (reference: 17424)

Responding Unit: Information Management Service (IMS)

Chronology

Original FoI request: 17 January 2011

IMS acknowledgement: 31 January 2011

Original deadline: 14 February 2011

First PIT extension sent: 14 February 2011

First PIT extension deadline: 14 March 2011

Second PIT extension sent: 11 March 2011

Second PIT extension deadline: 8 April 2011

IMS response: 31 March 2011

Request for internal review: 1 April 2011

Subject of request

1. Mr Hayward’s request of 17 January 2011 was as follows:

“Would you please send me all the most up to date information you have concerning the attempted murder of a Mr Martin McGartland aka 'Agent Carol' who was shot in Whitley Bay on 17th June 1999 at his home. Could i also be given information on the following.

Which variant of CZ75 combat was used in connection with the shooting. There are approx 26 variants of this pistol from 1975 onwards to date .Which variant was the pistol?

Yours faithfully,

Jeff Hayward”

The response by the Information Management Service (IMS) and Mr Hayward’s request for internal review

2. The full IMS response of 31 March 2011 is enclosed at the Annex of this report. IMS neither confirmed nor denied whether the Home Office

Page 3 of 12 held the information requested under sections 23(5), 24(2), 31(3) and 40(5)(a), which relate to information supplied by, or relating to, the security bodies, national security, law enforcement and personal information.

3. Mr Hayward’s internal review request of 1 April 2011 is set out in full below.

4. Mr Hayward also sent additional correspondence regarding his FoI response, which was also sent on 1 April 2011, which is enclosed at the Annex.

“Dear Home Office, Would you please sent me all the most up to date information you have concerning the attempted murder of a Mr Martin McGartland aka 'Agent Carol' who was shot in Whitley Bay on 17th June 1999 at his home. Could i also be given information on the following.....

1) Which variant of CZ75 combat pistol was used in connection with the shooting.There are approx 26 variants of this pistol from 1975 onwards to date. Which variant was the pistol?

Yours faithfully,

Jeff Hayward”

Procedural issues

5. IMS complied with section 17(1) by citing the exemptions that applied, providing sufficient explanation as to why they were engaged.

6. IMS stated its intention to maintain the exclusion of the duty to comply with section 1(1)(a) of the Act under sections 23(5) (information supplied by, or relating to, the security bodies), 24(2) (national security), 31(3) (law enforcement) and section 40(5)(a) (personal information) to neither confirm nor deny it held any information relevant to the request.

7. Mr Hayward was informed of his right to request an independent internal review of the handling of his request, as required by section 17(7) of the Act. The IMS response also informed Mr Hayward of his right of complaint to the Information Commissioner, as specified in section 17(7) of the Act.

8. The twenty working day deadline is extendable by virtue of section 10(3) of the Act. A full public interest test (PIT) extension letter and notice of the qualified exemption under consideration must be provided within the original deadline.

Page 4 of 12 9. A full PIT extension letter for the request was sent on the twentieth working day following receipt of the request on 17 January 2011. The letter explained that the PIT was being considered in relation to 24(2) (national security) and section 31(3) (law enforcement) which enables us to consider the public interest in confirming or denying whether we hold the information requested. A revised deadline of 10 January 2011 was provided.

10. A second PIT full PIT extension letter was sent to Mr Hayward on the 11 March 2011, which was one working day prior to the first PIT extended deadline. An amended deadline of 8 April 2011 was given.

11. I am satisfied that the contents of the initial letter and subsequent PIT extension letter and their respective deadline extensions were fully in accordance with section 10(3) of the Act.

12. The final response to Mr Hayward was sent on 31 March 2011, which was the fifty-third working day.

Consideration of the response

13. The original response sent to Mr Hayward neither confirmed nor denied whether we held the information requested, citing sections 23(5), 24(2), 31(3) and 40(5) of the Act. These exemptions relate to information about, or relating to, certain security bodies, national security and law enforcement. IMS concluded that the public interest in maintaining the exclusion of the duty to confirm or deny outweighed the public interest in confirming whether or not the information is held.

14. The relevant sections of 23(5), 24(2), 31(3) and 40(5) of the Freedom of Information Act state:

23 Information supplied by, or relating to, the security services

(1) Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

(5) The duty to confirm or deny does not arise of, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) which was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3).

24 National security

1) Information which does not fall within subsection 23(1) is exempt information if exemption from section 1(1)(b) is required for the purpose of safeguarding national security.

Page 5 of 12 (2) The duty to confirm or deny does not arise if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of safeguarding national security

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,

(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).

40 Personal information (5)The duty to confirm or deny— (a)does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1), and (b)does not arise in relation to other information if or to the extent that either— (i)the giving to a member of the public of the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) contravene any of the data protection principles or section 10 of the Data Protection Act 1998 or would do so if the exemptions in section 33A(1) of that Act were disregarded, or (ii)by virtue of any provision of Part IV of the Data Protection Act 1998 the information is exempt from section 7(1)(a) of that Act (data subject’s right to be informed whether personal data being processed).

15. Section 23(5) is an absolute exemption which does not require consideration of the public interest test. Section 40(5) is not an absolute exemption, but in certain circumstances functions as if it is because of the effect of section 44(1) and (2).

16. It was not appropriate to cite section 40(5)(a) in the original response. This is because subsection 40(5)(a) relates to information which is (or would be if it were held) exempt by virtue of subsection 40(1). That is, information which constitutes personal data of which the applicant is the data subject. Mr Hayward has not made a subject access request and neither subsection 40(1) nor 40(5)(a) apply. The correct subsection to cite is subsection 40(5)(b)(i), which relates to third-party information. I am satisfied that this exemption is engaged and that the original response correctly stated that we can neither confirm nor deny

Page 6 of 12 whether we held the information where to do so would contravene any of the data protection principles.

17. Sections 24(2) and 31(3) are qualified exemptions which are subject to the public interest test in order to assess the considerations in favour of confirming or denying whether the authority holds the relevant information against those favouring the exclusion of the duty to comply with section 1(1)(a) of the Act.

Public interest test

18. I have assessed the request again and the public interest test arguments in favour of confirming or denying that we hold the relevant information, against those favouring the exclusion of the duty to comply with section 1(1)(a) of the Act under section 24(2) (national security) and section 31(3) (law enforcement). The public interest test for each exemption will be considered in tandem.

19. First, I will consider the public interest arguments in favour of confirming or denying whether we hold the information requested. The Home Office recognises there is a general public interest in transparency and openness in Government as openness in Government increases public trust, and engagement. As the original response stated, if we confirmed or denied whether we held the information it would assist the public in establishing whether the Home Office held any information on this particular individual and details on the weapon used for their attempted murder. That said, the information is highly specific and likely to be of only limited interest to the public at large. It would be difficult to argue that it is of general public interest.

20. Set against these considerations, if we were to confirm or deny whether such information was or was not held, we might prejudice the Government’s ability to safeguard national security. Confirming whether the information is or is not held could reveal the techniques, if any, which are undertaken by law enforcement agencies, for example the police or those bodies listed in section 23(3) of the Act, which would confirm any public speculation about the nature of an operation and its purpose. It is clearly not in the public interest to confirm or deny whether such law enforcement activities are taking place or to provide information about the nature of any such activities, which could potentially benefit people who are intending to carry out criminal activities. Confirming or denying whether we hold the information could affect the behaviour of those subject to any law enforcement investigations and possibly harm the efficacy any such investigations.

21. As the original response stated, it is clearly not in the public interest to confirm the capabilities of the UK authorities and the techniques that they may, or may not use, to safeguard the country. This is in line with usual practice in not commenting on the activities of the security and

Page 7 of 12 intelligence agencies and should not be taken as conclusive evidence that such information does or does not exist.

22. I consider that in this instance, the balance of the public interest test in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in confirming or denying whether we hold the information. I therefore uphold the original decision taken by IMS neither to confirm nor deny whether we hold the information requested by virtue of sections 23(5), 24(2), 31(3) and 40(5) of the Act.

23. As the original response stated, this should not be taken as evidence that any such information is or is not held by the Home Office.

Conclusions

24. IMS complied with section 17(1) of the Act as they informed Mr Hayward of the exemptions which maintain our exclusion to neither confirm nor deny that we held the information requested.

25. IMS complied with section 10(3) and 17(3) of the Act as they informed Mr Hayward that consideration of the public interest was required for section 24(2) (national security) and 31(3) (law enforcement).

26. I conclude that IMS were correct in applying section 23(5), 24(2), 31(3) and 40(5) neither to confirm nor deny whether the Home Office holds the information requested. However, the original response did not cite the correct subsection for section 40 (personal information), which should have been section 40(5)(b)(i) regarding third party personal information. This should not be taken as conclusive evidence that the information is or is not held by the Home Office.

Information Access Team, Home Office May 2011

Page 8 of 12

ANNEX - Original IMS response and additional correspondence from Mr Hayward

Original IMS response

[BEGINS] “Dear Mr Hayward Freedom of Information request (our ref. 17424) I am writing further to my letter sent by e-mail on 14 February 2011, about your request for information regarding the attempted murder of Martin McGartland and the weapon used. Your request has been handled as a request for information under the Freedom of Information Act 2000. We neither confirm nor deny whether we hold the information you requested by virtue of sections 23(5), 24(2), 31(3) and 40(5) of the Act (information supplied by, or relating to, bodies dealing with security matters and national security, relating to law enforcement, and relating to personal information). These sections exempt us from our duty to say whether or not we hold the information you ask for. Further explanation of this decision, including the relevant public interest test, can be found in the annex to this letter. This response should not be taken as conclusive evidence that the information you have requested exists or does not exist. If you are dissatisfied with this response you may request an independent internal review of our handling of your request by submitting a complaint within two months to the address below, quoting reference 17424. If you ask for an internal review, it would be helpful if you could say why you are dissatisfied with the response. Information Access Team Home Office Ground Floor, Seacole Building 2 Marsham Street London SW1P 4DF e-mail: [email protected] As part of any internal review the Department's handling of your information request will be reassessed by staff who were not involved in providing you with this response. If you remain dissatisfied after this internal review, you would have a right of complaint to the Information Commissioner as established by section 50 of the Freedom of Information Act.

Yours sincerely

C Cummins Information Access Team

Page 9 of 12

Annex to original response Sections 23(5), 24(2), 31(3) and 40(5) of the Freedom of Information Act state: ‘23(1) Information held by a public authority is exempt information if it was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3). (5) The duty to confirm or deny does not arise of, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) which was directly or indirectly supplied to the public authority by, or relates to, any of the bodies specified in subsection (3). 24(1) Information which does not fall within subsection 23(1) is exempt information if exemption from section 1(1)(b) is required for the purpose of safeguarding national security. (2) The duty to confirm or deny does not arise if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of safeguarding national security. 31(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would likely to, prejudice – (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders, (c) the administration of justice, (d) to (i) (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 likely to, prejudice any of the matters mentioned in subsection (1). 40(5) The duty to confirm or deny – (a) does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1).’ Section 23(5) is an absolute provision and consequently there is no further consideration required. Section 24(2) – National Security Public interest considerations in favour of confirming whether the information is held The Home Office recognises that there is a general public interest in transparency and openness in Government. Such openness would lead to a deeper public knowledge in matters relating to national security. There is also a public interest in understanding what information the Home Office may or may not hold about the attempted murder of this particular individual. Public interest considerations in favour of maintaining the exclusion of the duty to either confirm or deny

Page 10 of 12 Set against these considerations, if we were to confirm or deny that such information was or was not held, we might prejudice the Government’s ability to maintain national security. It is not in the public interest to disclose the capabilities of the UK authorities (including bodies listed at section 23(3) of the Act) and the techniques that they may or may not use to safeguard the country. This is in line with usual practice in not commenting on the activities of the security and intelligence agencies and should not be taken as evidence that any such information does or does not exist. We have concluded that safeguarding national security interests is of paramount importance and that in all circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in confirming or denying whether we hold the information requested. Section 31(3) – Law Enforcement Public interest considerations in favour of confirming whether the information is held Please see above as the same general public interest factors apply in respect of this exemption. In addition there is a public interest in understanding the law enforcement process in respect of this particular unsolved crime. Public interest considerations in favour of maintaining the exclusion of the duty to either confirm or deny To reveal what information the Home Office has, or has not, on this subject would be likely to be prejudicial to the law enforcement process. The attempted murder of this man is still an unsolved crime. We have determined that maintaining the exclusion of the duty to confirm or deny outweighs the public interest in confirming or denying whether we hold the information. Section 40(5) – Personal Information We neither confirm nor deny whether we hold the information you have requested by virtue of section 40(5). This section of the Act absolves us from the requirement to say whether or not we hold information, where to do so would contravene any of the data protection principles. [ENDS]

Additional correspondence from Mr Hayward on his internal review request

“Dear Information Access,

Many thanks for your reply. I would like to bring the following to your attention with relation to this shooting\Attempted murder of Martin McGartland/Whitely Bay 17th June 1999.....

You say you can neither confirm nor deny whether you have this information. I would like to take this opportunity to confirm this for you if i may. Two CZ75 9mm combat were seized by Northumbria Police in relation to this incident one of which has

Page 11 of 12 been forensically linked to this shooting of Mr McGartland. This information is within the public domain. Having said that i would like to know which 'variant' of CZ75 was used in relation to this Attempted murder of Martin McGartland and can see no reason whatsoever why having this information released could in anyway shape or form 'compromise' national security or 'hamper' any police investigation ??

Can i bring this to your attention ....and i quote

Lee Harvey Oswald used a 6.5 x 52 mm Italian M91/38 bolt- , serial number C2766. The rifle was equipped with a 4x Hollywood brand scope. The military surplus rifle and scope were sold through Klein's Sporting Goods Company by mail order.

We know the 'exact' rifle variant used to kill President Kennedy.....This to certain American Governmental agencies is still an 'unsolved crime' You really cannot get a 'higher profile' as regards 'national security' than matters as murdering a president or a countries 'political leader' as you would certainly agree...

Godse assassinated Gandhi on January 30, 1948, approaching him during a public appearance, bowing, and shooting him at close range. The gun used by Godse was a M1934 semi-automatic pistol in .380 ACP caliber, serial number 606824.

When we talk about 'ongoing actions' in relation to 'National security' such as Afghanistan lets say i can tell you that weapons and their 'variants' used by British soldiers are very much in the public domain and the Afghanistan conflict is still 'on going' yet i can tell you the following as a matter of coarse ....

[info on several weapons provided]

If knowing 'exact' weapon variants is detrimental to 'ongoing matters' concerning national security then can you explain these things i have listed and why knowing which variant of CZ75 which very nearly ended Martin McGartlands life is such a secret and having said information released could possibly compromise national security ?

Yours sincerely,

Jeff Hayward

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