Met HQ Performance & Assurance Information Law & Security Group

Met HQ Performance & Assurance Information Law & Security Group Information Rights Unit PO Box 57192 London SW6 1TR

Telephone: 0207 161 3500 Facsimile: 0207 161 3503 Email: [email protected]

www.met.police.uk

Your ref: Our ref: 2015110000456

22 February 2016

Dear P John

Freedom of Information Request Reference No: 2015110000456

I write in connection with your request for information which was received by the Metropolitan Police Service (MPS) on 09/11/2015. Your request was as follows:

I would be most grateful if you would elaborate the following items;

1) Disclose what action you have taken (if any) in consequence of the statements made by Greg Miskiw, reported in the article entitled "Miskiw Confirms: News of the World subverted Murder Inquiry on behalf of Murder Suspects" (since that would appear to suggest a criminal offence has occurred) 2) Confirm or deny that in late summer of 2002, the Morgan murder inquiry team requested that the anti-corruption command led DAC Andy Hayman undertake a financial inquiry into in Alex Marunchak's dealings with Southern Investigations, and if so disclose that request, and indicate what action was subsequently taken. 3) Confirm or deny that DCS David Cook remains suspended and under investigation, and if so for what reason, and if not when that case was discontinued and for what reason 4) Confirm or deny the existence of an ongoing investigation into the Daniel Morgan case.

Absent a positive answer to item 4 above, the axe murdering psychopath who killed Daniel Morgan is still at large, and it remains difficult to conceive the level of offending that would shame your officers into upholding the rights of the victim and the letter of the law.

DECISION

Questions 1, 2 & 3

In relation to question 3, I can confirm that former Detective Chief Superintendent David Cook has retired from the MPS and is therefore not currently suspended by the MPS.

In relation to the remainder of questions 1-3, the MPS is not required to confirm or deny whether the information requested is held subject to the following provisions of the Freedom of Information Act 2000:

 Section 17(1) - Refusal of Request  Section 22(2) - Information intended for future publication  Section 23(5) - Information supplied by or relating to security bodies  Section 30(3) - Investigations and proceedings  Section 40(5)(b)(i) - Personal Data

To the extent that information within the scope of your request would, if held, be held with a view to publication via the Daniel Morgan Independent Panel, section 22(2) would be applicable.

Section 23(5) is a class-based and absolute exemption. Therefore, there is no obligation to provide evidence of harm or conduct a public interest test.

Any information relating to your request, if held, would be held for the purpose of investigations and proceedings that the MPS have a duty to conduct.

A statement confirming or denying whether information is held in relation to your request and similar requests for information would potentially undermine investigations and proceedings and/or unfairly disclose or infer personal data.

Question 4

The MPS does not permanently close unsolved murder cases and they remain under review. In 2013, the MPS indicated that there was no likelihood of any successful prosecutions for the murder of Daniel Morgan being brought in the foreseeable future. On 10/05/2013, the Home Secretary announced the creation of the Daniel Morgan Independent Panel. The MPS is fully supporting the Daniel Morgan Independent Panel whose purpose and remit is to shine a light on the circumstances of Daniel Morgan’s murder, its background and the handling of the case over the whole period since March 1987. The independent panel may identify and recommend further lines of inquiry.

REASON FOR DECISION

Please see the legal annex for the sections of the Freedom of Information Act 2000 that are referred to in this letter and Appendix A for further information regarding the duty to confirm or deny.

Section 22(2) (Information intended for future publication)

Section 22(1) of the Freedom of Information Act states:

‘(1) Information is exempt information if—

(a) the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not),

(b) the information was already held with a view to such publication at the time when the request for information was made, and

(c) it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to in paragraph (a).’

Under section 22(2), the MPS is not required to confirm or deny whether information is held if this would involve the disclosure of any information (whether or not already recorded) which falls within section 22(1).

Section 22 is a qualified exemption. Therefore, I am required to consider the public interest.

Public Interest Test – Section 22(1)

Section 22 - Public interest considerations favouring confirmation or denial

Transparency  The date for publication is yet to be determined

Section 22 - Public interest considerations against confirmation or denial

The efficient and effective conduct of the service  Consideration of the information/circumstances is required prior to its public release.  The spending of additional time and public funds may be wasteful  Publication is dependent upon the progress of an ongoing criminal investigation and public inquiry

Balance Test

The terms of reference for the Daniel Morgan Independent Panel1 state:

‘5. The principles of the Independent Panel’s work will be:

1 https://www.danielmorganpanel.independent.gov.uk/panels-remit/panels-term-reference/

(a) full, genuine and effective participation of the family at all stages of the Panel’s work including genuine and full consultation and briefing throughout the process and payment of legal costs incurred on behalf of the family to this end; (b) “the family first” in terms of the release of the Panel’s findings and its report; (c) exceptional and full disclosure to the Panel of all relevant documentation including that held by all relevant Government departments and agencies and by the police and other investigative and prosecuting authorities; (d) maximum possible disclosure of documentation and information by the Panel to the family.

6. The Independent Panel will present its final Report to the Home Secretary who will make arrangements for its publication to Parliament.

7. It is envisaged that the Panel will aim to complete its work within 12 months of the documentation being made available. In the meanwhile, it is also envisaged that the Panel will brief the family incrementally, both on the progress of its work and on its emerging findings. The Panel will finalise these and other aspects of its work after three months when it has been able to assess the scope of its work and the desirability and practicalities of incremental disclosure.’

The Daniel Morgan Independent Panel Review’s protocol on disclosure of information2 sets out the arrangements for disclosure to the Daniel Morgan Independent Panel and states:

‘Provision of documents

4. In this Protocol, 'document' means anything in which information of any description is recorded. The Independent Panel's request for documents is broad-ranging. It may (depending on context) include copies of statements, pocket notebooks, policy statements, audio recordings, video footage, information stored electronically on computer systems, meeting notes and minutes, manuscript notes, memoranda, correspondence (post and/or fax) and internal and external email communications. The Independent Panel may also request physical evidence and where it does, references in this Protocol to 'documents' should be taken to include physical evidence…

12. (a) Requests for disclosure of material falling within the Terms of Reference by the Independent Panel create a continuing obligation.

(b) The providing organisations will need to establish procedures to ensure that the existence of any new documents (i.e. those documents newly created and/or newly discovered and those newly acquired) which might fall within the Terms of Reference is identified and drawn to the attention of the Independent Panel so it may decide whether to request these. The disclosure obligation ceases once the Independent Panel has produced its Report and satisfied its terms of reference…

2 https://www.danielmorganpanel.independent.gov.uk/procedures/information-disclosure-protocol/ Onward disclosure of documents by the Independent Panel

15.It is expected that the Independent Panel will wish to draw on information contained in documents provided pursuant to this Protocol when producing its Final (and any provisional) Report. It may also wish to evidence that Report by referencing and publishing the source documentation on which it is based.

16.Before publishing any Report which has annexed to it any document or part of a document supplied by the providing organisations, the Independent Panel will:

(a) supply the providing organisation concerned with a list of the documents or parts of documents in question; (b) permit the providing organisation to make representations concerning any redactions which may be necessary prior to publication (for example for reasons of data protection, to protect covert policing methodology, to remove information which is sensitive but irrelevant etc); (c) give careful consideration to any such representations; (d) seek to agree all redactions by consent; and (e) only publish documents and/or parts of documents disclosed to it with the express written consent of the providing organisation which supplied the particular document in question. The providing organisations will not unreasonably withhold consent. If the Panel considers that consent has been withheld unreasonably then it will not publish the material in issue, but it may publish the fact that it considers that consent has been withheld unreasonably.

Public disclosure process

17.The Independent Panel's Terms of Reference include the 'family first' principle in terms of release of its findings and Report. Accordingly, the Independent Panel will ensure that the Morgan family are provided with access on a confidential basis to its completed Report and any associated documentation prior to its publication in accordance with arrangements made by the Home Secretary in Parliament.

18.The Independent Panel will ensure that its final report is in compliance with all its legal obligations and does not breach any security requirements including, in particular, the provision of information that might give rise to a risk to life or a risk to prejudice of future criminal proceedings. It will agree a mechanism with providing organisations for doing this which respects the `familyfirst' principle set out in the Independent Panel's Terms of Reference.’

The independent panel’s freedom of information policy3 states:

‘4. Because of the nature of the Panel’s work, as set out in its terms of reference, much of the information supplied to it as evidence, by other organisations, will be supplied in confidence and the Panel will have no discretion to overturn such duties of confidence. However, to the extent that such evidence is relevant to the Panel’s findings, that evidence will be published alongside the Panel’s report. If redactions to documents have to be made for publication, those redactions will

3 https://www.danielmorganpanel.independent.gov.uk/procedures/freedom-information/ be justified by reference to the appropriate section of the Freedom of Information Act 2000.’

The independent Panel’s website has published answers to Frequently Asked Questions relating to its work. This includes the following questions and answers:

‘Q: How long will the Panel take to complete its work? The Panel’s terms of reference anticipate it will take about 12 months from the start of substantive work on the papers to it being in a position to submit its report to the Home Secretary. The position will be kept under review and this may change, given the large amount of material gathered over the past 27 years that has to be carefully scrutinised.’

‘Q: How will the Panel carry out its work? There are three principal stages to the work of the Panel: o Firstly it will be necessary identify relevant documentation and other sources of information; o Secondly the Panel will conduct a rigorous, evidence-based analysis of the information; and o The third and final stage will be writing its report which will be presented to the members of Daniel Morgan’s family and the Home Secretary.’

‘Q: Does the Panel have any idea how much material they will be considering? It is estimated there may be up to 1.5 million pages of documentation and other material.’

The above demonstrates that:  The MPS have a continuing obligation to ensure that the existence of any new documents (i.e. those documents newly created and/or newly discovered and those newly acquired) which might fall within the Terms of Reference is identified and drawn to the attention of the Independent Panel so it may decide whether to request these.  The Panel will conduct a rigorous, evidence-based analysis of the information it obtains  An estimated 1.5 million pages of documentation are being considered by the Independent Panel  The Independent Panel may wish to evidence their final report by referencing and publishing the source documentation on which it is based  Any redactions will be justified by reference to the appropriate section(s) of the Freedom of Information Act 2000  The Independent Panel will adopt a ‘family first’ approach in relation to the the release of its findings and report  The Independent Panel will ensure that its final report is in compliance with all its legal obligations.  Although the date for publication has yet to be determined, the Independent Panel have outlined the timescales within which it is anticipated that it will complete its reports and indicated that this will be kept under review.

The control of information held for the purpose of an investigation is also important to the effective conduct of an investigation. The College of Policing website contains specific information relating to investigations and communications strategies and states:

‘The way in which investigators manage communications will have a significant effect on the investigation they are conducting. The main purpose of this strategy is to communicate or receive information which assists investigators to progress their enquiries. This can be achieved through internal communications by using colleagues and partners within the criminal justice system and through external communications by using partner agencies and community networks.’4

Furthermore, there are inherent sensitivities regarding information relating to a murder investigation and related offences or conduct. This places restrictions, legal or otherwise, upon the movement, handling and disclosure of relevant material that may be interrelated and/or provide important context.

It is also pertinent to note that police evidence may be circumstantial. The value of circumstantial evidence is cumulative. In relation to circumstantial evidence, Wikipedia states5:

‘On its own, it is the nature of circumstantial evidence for more than one explanation to still be possible. Inference from one piece of circumstantial evidence may not guarantee accuracy. Circumstantial evidence usually accumulates into a collection, so that the pieces then become corroborating evidence. Together, they may more strongly support one particular inference over another. An explanation involving circumstantial evidence becomes more valid as proof of a fact when the alternative explanations have been ruled out.’

A 2012 review by the CPS and MPS in reference to investigations and proceedings relating to the murder of Daniel Morgan stated that:

‘This was a truly exceptional case in terms of a combination of factors namely its age; the size and the number of linked operations; the enormous volume of material generated…’

An estimated 1.5 million pages of documentation are current being assessed by the Independent Panel. Many of these documents have previously been considered by the MPS and/or are likely to be considered by the MPS in the future. The relationship between information that may constitute evidence in relation to a criminal investigation would need to be established in order to fully consider the harm in confirming or denying whether the requested information is held. As noted earlier, the Independent Panel will conduct a rigorous, evidence-based analysis of the information it obtains.

It is also pertinent to note that information of this nature could have significant consequences such as potentially undermining police investigations, future legal proceedings or the work of the Independent Panel. It is also pertinent to note that the panel has adopted a ‘family first’ approach in which the legitimate public interest is served by updating the family of Daniel Morgan of significant information before the wider public.

4 http://www.app.college.police.uk/app-content/investigations/investigative-strategies/communications-strategy 5 http://en.wikipedia.org/wiki/Circumstantial_evidence Disclosure (e.g. a confirmation or denial statement) prior to establishing the related circumstances may also have the effect of distorting public debate and/or increasing speculation which may be unfair to any individuals concerned and/or impair investigations and proceedings.

To disclose information held with a view to publication on an ad-hoc basis, one document at a time, multiple times, whilst related circumstances may be subject to change due to enquiries by different organisations would require duplication of time, energy and effort. This would be time consuming and may divert resources away from core policing tasks. Each disclosure may generate further queries and/or have an exponential impact.

There is a strong public interest in enabling the MPS to investigate fully, and without any hindrance to the process, when considering its position in relation to potentially criminal conduct. The Independent Panel has a broad remit outlined in the Terms of Reference published on their website and their work is supported by the MPS. The Independent Panel has indicated that they ‘would like to hear from anyone who believes they may have information that is relevant to their functions’. The independent panel will make any recommendations which the Panel concludes should be made as a result of its work, including recommendations for any further investigation or inquiry.

After weighing up the competing interests I have determined that the disclosure of the above information would not be in the public interest. The decisive factor in this instance is the timing of the disclosure in the context of the scope, duration, complexity and sensitivity of a high profile, unsolved murder case. In the context of various investigations, proceedings and previous disclosures relating to the murder of Daniel Morgan, the spending of additional time and public funds may be inefficient. The legitimate public interest in disclosure is currently being served via other means.

Therefore, it would be reasonable in all the circumstances that further information (e.g. a confirmation or denial statement) should be withheld until such time that disclosure would not prejudice the conduct of investigations and proceedings.

Section 30(3) - Investigations and proceedings

Purpose of section 30 & the public interest test

Section 30 (Investigations and proceedings conducted by public authorities) of the Freedom of Information Act 20006 in part states:

‘(1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of— (a) any investigation which the public authority has a duty to conduct with a view to it being ascertained— (i) whether a person should be charged with an offence…

(3)The duty to confirm or deny 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)...’

6 http://www.legislation.gov.uk/ukpga/2000/36/section/30 The Information Commissioner’s Office (ICO) guidance titled ‘Investigations and proceedings (section 30)’7 states:

‘In broad terms, the section 30 exemptions exist to ensure the effective investigation and prosecution of offences and the protection of confidential sources. They recognise the need to prevent disclosures that would prejudice either a particular investigation or set of proceedings, or the investigatory and prosecution processes generally, including any prejudice to future investigations and proceedings…’

‘As long as the other requirements of the exemption are satisfied, the exemption will apply to information even if it was not originally obtained or generated for one of those purposes and it will continue to protect information even if it is no longer being used for the specified investigation or proceeding. It is only necessary for the information to have been held at some point for those purposes.

The exemption applies to information rather than documents so it is possible that information contained in a document created after the conclusion of an investigation or set of proceedings could still attract the exemption.’

The ICO’s guidance further states:

‘When considering the public interest inherent in section 30, tribunals have been guided by the White Paper, “Your Right to Know”, which preceded the introduction of FOIA.’

The government White Paper8 outlining the Government’s proposals for a Freedom of Information Act’ under the heading ‘What is FOI not intended to do?’ states that:

‘…FOI should not undermine the investigation, prosecution or prevention of crime, or the bringing of civil or criminal proceedings by public bodies. The investigation and prosecution of crime involve a number of essential requirements. These include the need to avoid prejudicing effective law enforcement, the need to protect witnesses and informers, the need to maintain the independence of the judicial and prosecution processes, and the need to preserve the criminal court as the sole forum for determining guilt’ (paragraph 2.21)

In the Information Tribunal case of Guardian Newspapers Ltd v Information Commissioner and the Chief Constable of Avon and Somerset Police (EA/2006/0017; 5 March 2007), the decisive factor was:

‘the interest in principle, recognised by the exemption applying to s30(1), in protecting information acquired, often in confidence, in police investigations’

The ICO guidance and Information Tribunal decisions cited above clearly indicate that the public interest inherent in section 30 includes safeguarding the investigatory

7 http://ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/i nvestigations-and-proceedings-foi-section-30.ashx

8 http://webarchive.nationalarchives.gov.uk/20140131031506/http://www.archive.official- documents.co.uk/document/caboff/foi/chap2a.htm process, maintaining the independence of the judicial and prosecution processes and protecting information acquired in police investigations.

The ICO guidance in relation to the public interest test9 states:

‘The public interest can cover a wide range of values and principles relating to the public good, or what is in the best interests of society. Thus, for example, there is a public interest in transparency and accountability, to promote public understanding and to safeguard democratic processes. There is a public interest in good decision-making by public bodies, in upholding standards of integrity, in ensuring justice and fair treatment for all, in securing the best use of public resources and in ensuring fair commercial competition in a mixed economy. This is not a complete list; the public interest can take many forms.’

‘However, these examples of the public interest do not in themselves automatically mean that information should be disclosed or withheld. For example, an informed and involved public helps to promote good decision making by public bodies, but those bodies may also need space and time in which to fully consider their policy options, to enable them to reach an impartial and appropriate decision, away from public interference. Revealing information about wrongdoing may help the course of justice, but investigations into wrongdoing may need confidentiality to be effective. This suggests that in each case, the public interest test involves identifying the appropriate public interests and assessing the extent to which they are served by disclosure or by maintaining an exemption.’ [Emphasis added]

‘The public interest is not necessarily the same as what interests the public. The fact that a topic is discussed in the media does not automatically mean that there is a public interest in disclosing the information that has been requested about it.’

Many of these considerations are applicable to your request.

The ICO’s guidance on the duty to confirm or deny10 states:

‘The wording of the request for information will affect whether or not a public authority will confirm or deny it holds that information. In many cases the more specific the request, the lower the likelihood of the duty arising.’

You have specifically asked for a confirmation or denial statement in relation to information that, if held, could relate to one or more investigations linked to a high profile unsolved murder case. Consequently your request potentially relates to specific investigation(s) rather than the MPS or investigations in general.

This may increase the harm that would be caused by confirming or denying whether information is held in relation to your request.

9 http://www.ico.gov.uk/for_organisations/guidance_index/~/media/documents/library/Freedom_of_Information/Detailed_specialist_gui des/the_public_interest_test.ashx 10 http://www.ico.gov.uk/for_organisations/guidance_index/~/media/documents/library/Freedom_of_Information/Detailed_specialist_gui des/DUTYTOCONFIRMORDENY.ashx

Section 30(3) is a class-based and qualified exemption. Therefore, I am not required to provide evidence of harm. However, I am required to consider the public interest in relation to the duty to confirm or deny.

Public Interest Test – Section 30(3)

Public interest factors favouring confirmation or denial - section 30(3):

 Transparency and accountability - Confirmation or denial would enhance the transparency and accountability of the MPS and its operations. Particularly in relation to: o the spending of public funds o investigations o decision making  Public awareness and debate - Confirmation or denial would: o Provide an insight into the police service and enable the public to have a better understanding of effectiveness of the police and the use of public resources; o Enhance the understanding and participation in the public debate of issues of the day o Enhancing public confidence in investigative processes and the police service

Public interest factors against confirmation or denial - section 30(3):

 Prejudice to law enforcement functions i.e. the prevention and detection of crime and/or the apprehension and prosecution of offenders - Disclosure may: o Prejudice ongoing and/or future investigations into possible criminal offences; o Undermine the independence of judicial and prosecution processes e.g. Prejudice future legal proceedings and the right to a fair trial; o Restrict the space for investigators to determine the course of investigations; o Deter victims, witnesses and informants from assisting the police. o Impair the work of the Daniel Morgan Independent Panel which may identify or recommend further lines of enquiry at a later date

 Other means of scrutiny - MPS actions, decisions and investigations are subject to independent external scrutiny e.g. o Daniel Morgan Independent Panel o Judicial System o Leveson Public Inquiry o Independent Police Complaints Commission (IPCC)

 Public understanding and debate - Disclosing the information requested may o distort public understanding and debate as it may be taken out of context and/or unfairly stigmatise individuals o limit the nature of information that can be disclosed at a later date without prejudicing investigations and proceedings

Balancing Test - Section 30(3)

Upon weighing up the competing interests, I find that the strongest reason favouring confirming or denying whether information is held is to enhance transparency and accountability in relation to investigations. The strongest reason against confirming or denying whether information is held is the consideration of ensuring the MPS do not impair investigations and proceedings conducted with a view to ascertaining whether a person should be charged with an offence i.e. relating to the prevention and detection of crime and/or the apprehension and prosecution of offenders.

Information released under the Freedom of Information Act is considered to be a disclosure to the world at large. Confirming or denying whether information is held in relation to an investigation may enable offenders to evade detection by indicating:  whether a police investigation had taken place  the extent of enquiries made and/or;  the extent of information held in relation to an investigation.

Please see appendix A for examples of the harm associated with the duty to confirm or deny.

The ICO guidance titled ‘Investigations and proceedings (section 30)’ indicates that circumstances influencing the public interest in maintaining the exemption include;

 the stage of the investigation or prosecution,  the extent to which the same or other information is in the public domain,  the value of information obtained from confidential sources,  the significance of the information, particularly in terms of whether it would reveal any flaws in an investigation or set of proceedings.  Independent evidence that supports or counters allegations that an investigation prosecution was flawed

Stage of the investigation

The table below displays the time periods within which exemptions relating to investigations and law enforcement can be applied to information requested under the Freedom of Information Act 2000. Exemption Applicable time period11 Section 30(1) Was 30 years. Now 20 years (subject to transitional provisions) Section 30(2) No time limit Section 31 100 years

11 Section 62 and 63(1) of the Freedom of Information Act states: 62(1) For the purposes of this Part, a record becomes a “historical record” at the end of the period of thirty years beginning with the year following that in which it was created. 62(2) Where records created at different dates are for administrative purposes kept together in one file or other assembly, all the records in that file or other assembly are to be treated for the purposes of this Part as having been created when the latest of those records was created. 62(3) In this Part “year” means a calendar year. 63(1) Information contained in a historical record cannot be exempt information by virtue of section 28, 30(1), 32, 33, 35, or 42’ Section 63(4) of the Freedom of Information Act 2000 prohibits section 31, relating to law enforcement, from being applied to records created more than 100 years ago. http://www.legislation.gov.uk/ukpga/2000/36/part/VI Schedule 7(4) of the Constitutional Reform and Governance Act 2010 amends section 62 of the Freedom of Information Act 2000 so that the definition of an historical record has been reduced to 20 years subject to transitional provisions. http://www.legislation.gov.uk/ukpga/2010/25/schedule/7 http://www.legislation.gov.uk/uksi/2012/3029/schedule/made

These time periods could be seen as indicative of the time periods in which information can realistically prejudice investigations and law enforcement. ICO decision notice FS50078588 similarly observes:

‘The fact that Parliament has explicitly provided, in section 63 (1) of the Act that information which is exempt under section 30(1) should lose that exemption thirty years after it was created suggests that there is a public interest in maintaining the exemption for the thirty year period unless there are strong public interest arguments in favour of disclosure.’

The ICO guidance in relation to section 30 also states:

‘60. Those investigating an offence need private thinking space if they are going to fully explore all aspects of a case without fear that their half formed opinions will be reported in the press or enter the public domain. Such concerns would hinder the efficient running of an investigation if disclosed. This does not mean that officers conducting an investigation would not expect that they may ultimately be required to give evidence in court. However, the evidence they present in such proceedings represents their fully considered conclusions.

61. As a general rule there will always be a strong public interest in maintaining the section 30 exemption whilst an investigation is ongoing.’

62. Where a criminal offence is unsolved there is always the possibility that the investigation could be reopened. This may be as a result of new witnesses coming forward or advances in forensic techniques. Where there is a real possibility that a case could be reopened there will still be a public interest in not prejudicing any future investigations into the matter. Therefore, the age of the information is relevant, though not critical, to the application of the public interest test.’

Furthermore, there is often a realistic possibility of the scope of an investigation being broadened or narrowed and/or new investigations being carried out that relate to, or overlap with, earlier enquiries.

The Home Secretary’s written statement published on 10/05/201312, in which the creation of the Daniel Morgan Independent Panel was announced, outlined the background to the murder case as follows:

‘Daniel Morgan, a private investigator, was found murdered in a pub car park in south east London on 10 March 1987. It is one of the country’s most notorious unsolved murder cases. After numerous separate police investigations into the case between 1987 and 2002, the Crown Prosecution Service discontinued the final attempted prosecution against five suspects in 2011. [emphasis added]

Your initial Freedom of Information Act request was received on 09/11/2015.

As advised in response to question 4, the MPS do not close unsolved murder cases and they remain under review. As least 5 years prior to your request an attempt was made

12 https://www.gov.uk/government/speeches/daniel-morgan to prosecute 5 individuals in relation to the murder and the creation of an independent panel was announced less than 3 years prior to your request and is still ongoing at the time of writing. The independent panel may identify and recommend further lines of inquiry.

Question 1 refers to an article published on the same day your request was received by the MPS (i.e. 09/11/2015) which you state ‘would appear to suggest a criminal offence has occurred’. Question 2 queries actions taken/not taken in 2002 and question 3 queries the current status of an alleged investigation. This further demonstrates that any information relevant to questions 1 and 3, if held, would be recent information.

Information in the public domain

Where information is already in the public domain, it may not be appropriate to refuse to confirm or deny whether information is held.

I am not aware of any official information in the public domain that confirms or denies whether information is held in relation to your queries numbered 1-3.

Your request refers to a news article purporting to contain information relating to questions 1-3. The First-Tier (Information Rights) Tribunal Appeal No: EA/2015/0028 related to a case in which the MPS issued a neither confirm nor deny response in relation to a request that referred to unofficial information reported in the media. The Tribunal decision states:

‘20...In this case, therefore, confirming or denying whether the information sought is held would come close to confirming or denying the accuracy of the reports (the Commissioner’s emphasis). At the very least, such confirmation or denial would be very relevant to the accuracy of the reports and would, given the significant previous media interest leading to the Reports, potentially lead to further such media interest. Such an outcome would, in the Commissioner's submissions, not be fair for the Data Subject.’

The ‘Commissioner’ referred to in the Tribunal decision quoted above is the Information Commissioner.

Significance of the information

The ICO’s guidance in relation to investigations and proceedings states:

‘The significance of the information relates to both the subject of the investigation or set of proceedings and what the information reveals about the probity or integrity of the criminal justice system.’ - paragraph 71

The College of Policing Authorised Professional Practice (APP)13 in relation to Information Management and the retention, review and disposal of policing information outlines 4 groups of policing information.

‘Group 1’ relates to ‘Certain public protection matters’ and includes information relating to serious offences specified in the Criminal Justice Act 200314 which includes murder.

13 http://www.app.college.police.uk/app-content/information-management/management-of-police-information/retention-review-and- disposal-of-police-information/#group-4-miscellaneous

‘Group 4’ relates to ‘miscellaneous information’ which includes undetected group 1 offences. The APP states:

‘Undetected group 1 offences – records should be retained for a minimum of 100 years from the date reported to the police. Other records of undetected offences should be retained for a minimum of six years from the date reported to the police. Forces should be mindful that these are minimum periods and that they may keep undetected crime records for longer if they feel it necessary. There are no additional requirements to review these records above and beyond the requirements imposed by relevant investigative guidelines.’

The requested information is significant to the extent that it relates to:  The murder of Daniel Morgan  Police investigations  Police misconduct

The circumstances relevant to questions 1-3 are similar to the circumstances considered in ICO Decision Notice FS5054773315 which concerned queries relating to speculation about actions taken by the MPS in relation to investigations and proceedings. The decision notice quoted the MPS rationale for the use of section 30(3) as follows:

’37…Under the Act we would not wish to confirm or deny to the public at large specific elements of a police investigation or what information may or may not be held in relation to an individual or a third party, as alluded to in a preceding paragraph. Because of this, a public authority is not obliged to confirm or deny whether it holds the information, subject to the outcome of a public interest test.

However, were the MPS to confirm or deny whether the information relating to the many parts highlighted above, is or is not held, would publicly confirm whether or not certain actions took place as part of the investigation and provide information about suspects, leading to inferences being drawn as to whether or not someone was charged and or prosecuted. It should be recognised that to divulge answers to the parts above, even by confirming or denying its existence that, in itself, supplies information to the world at large. In this instance whilst it would be of interest to the public to have it confirmed, or otherwise, about specific issues relating to the investigation, I believe that public interest in confirming or denying whether the information is held does not outweigh the benefits of neither confirming nor denying that the requested information is held”.’

In the circumstances of the case, the Information Commissioner accepted that ‘confirming or denying whether the investigative strands suggested by the complainant are being pursued would be detrimental to the ongoing investigations and that this would not be in the public interest.’

ICO decision notice FS50079972 related to a request received by The National Archives for information from case papers that had been transferred by the MPS relating to an unsolved murder case dating back to 1954. The decision notice states that The National Archives explained that:

14 http://www.legislation.gov.uk/ukpga/2003/44/schedule/15A 15 https://ico.org.uk/media/action-weve-taken/decision-notices/2014/1042893/fs_50547733.pdf

’21…MPS considered the following factors in favour of non-disclosure: there is no formal statute of limitation for the offence of murder and this crime therefore remains capable of investigation from which, potentially, a prosecution could result. Premature disclosure of information relative to inquiries already conducted by police could prejudice a future investigation and prosecution...

In weighing up the competing public interest test factors, the MPS concluded that the factors in favour of non-disclosure outweighed those in favour of disclosure. This is because the MPS has a duty to the community it serves to investigate crime and prosecute those responsible. Disclosure of information that might prejudice the investigation crime[sic] and the apprehension and prosecution of those responsible interferes with this duty. This is clearly not in the public interest.’

There is a significant public interest in matters relating to the murder of Daniel Morgan due to the serious nature of the crime and the suggestion of police misconduct in relation to the case. The case itself has received substantial coverage in the national news media and the requested information would also be significant to the extent that a confirmation or denial statement would enhance the transparency and accountability of the MPS in relation to its investigations and decisions.

It is not possible to be certain as to the relevance or significance of specific information to investigations and legal proceedings as police investigations are subject to several variables. For example, the potential exists for further evidence to come to light and/or additional lines of enquiry to become available and it is not uncommon for police investigations and related proceedings to span a number of years. The MPS would have a duty to pursue additional lines of inquiry which may in the circumstances change the context in which existing evidence is viewed. There would be an expectation that information collated during previous investigations would have been kept confidential.

Furthermore, the outcome of an investigation may be dependent upon the quantity and quality of evidence. This may affect decisions relating to whether further detailed investigations can be realistically carried out to an evidential standard required for a criminal conviction.

The full significance and context of any item of evidence can only be understood when in possession of all of the available evidence.

In the circumstances of Decision Notice FS5010438416, the Information Commissioner suggested that he is particularly aware of the need to protect the integrity of the investigatory process. The Decision Notice goes on to state:

‘The Commissioner draws support for this view from the dicta from Lord Chief Justice Kerr in the Committee on the Administration of Justice & Anor, RE An Application for Judicial Review [2005] NIQB 25. In the application, Lord Chief Justice Kerr referred to the judgement of Taylor and others v. Serious Fraud Office (1999) and held that:

16 http://www.ico.org.uk/upload/documents/decisionnotices/2007/fs_50104384.pdf “These passages identify the public interest in maintaining confidentiality for police investigations unless the interests of justice require otherwise. Unless it can be demonstrated that there are compelling reasons for disclosing the contents of a police investigation file, it is vital confidentiality be preserved.”’

The public interest in enabling the police to withhold case evidence has previously been acknowledged by the Information Commissioner in Decision Notice FS5014099417 which states:

‘The Commissioner notes that the success of an investigation often depends on the quality of any evidence obtained. Prematurely revealing the evidence or lines of enquiry could allow an offender to plan their continued evasion from justice. The Commissioner recognises that, as a general principle, there is a strong public interest in allowing the police to withhold case evidence until such time as it is appropriate to release it.’

Decision Notice FS5014099418 acknowledged the public interest in enabling a police force to determine what evidence is released to the public stating:

‘…in reaching this conclusion the Commissioner considers that the argument that there is a public interest in allowing the public authority to pursue ‘live’ investigations and to determine what, if any, evidence related to them is released, has particular weight.’

A similar rationale is expressed in Decision Notice FER034210319 which relates to a request under the Environmental Information Regulations and states:

‘The Commissioner acknowledges that, as a general principle, it is important to allow a public authority that is investigating potential criminal offences to withhold relevant evidence until such time as it is appropriate to release it. He notes that there are well defined rules governing the disclosure of information in relation to criminal investigations. These will determine the process to be followed and determine when it is appropriate for relevant information to be disclosed. To disclose important evidence in a criminal investigation prematurely under the EIR would clearly undermine the existing procedures and could adversely impact on the investigative process.’

Cumulative prejudice may also result from disclosure. For example, the information that would be disclosed by a statement confirming or denying whether information is held may be of increased significance when combined with other information obtained through other means and/or at a later date. This is also referred to as the ‘mosaic’ effect which has been described as follows:

‘The “mosaic theory” describes a basic precept of intelligence gathering: Disparate items of information, though individually of limited or no utility to their possessor, can take on added significance when combined with other items of information. Combining the items illuminates their interrelationships and breeds

17 http://www.ico.org.uk/~/media/documents/decisionnotices/2008/FS_50140994.ashx 18 http://www.ico.org.uk/~/media/documents/decisionnotices/2008/FS_50140994.PDF 19 http://www.ico.org.uk/~/media/documents/decisionnotices/2011/fer_0342103.pdf analytic synergies, so that the resulting mosaic of information is worth more than the sum of its parts.’20

The ICO’s guidance in relation to Law Enforcement21 acknowledges the harm that may be caused by the mosaic effect where it states:

‘Mosaic and precedent effects 21. The prejudice test is not limited to the harm that could be caused by the requested information on its own. Account can be taken of any harm likely to arise if the requested information were put together with other information. This is commonly known as the ‘mosaic effect’. As explained in the Information Commissioner’s guidance information in the public domain, the mosaic effect usually considers the prejudice that would be caused if the requested information was combined with information already in the public domain.

This is similar to the nature of ‘circumstantial evidence’ described earlier in relation to Section 22(2). Consequently the significance of a single piece of information may change over time.

A neither confirm nor deny (NCND) response needs to be used consistently in order to be effective22. In a hypothetical scenario in which the MPS confirmed that no information was held, this could undermine the use of an NCND response in relation to similar requests relating to different aspects of investigations, related items of evidence and different time periods. In such a scenario, a series of responses may indirectly disclose or enable inferences to be made as to the focus, progress and capabilities of an investigation. Even where information has entered the public domain via proactive disclosures to the public, it may not be appropriate to provide up to the minute updates regarding specific aspects of the investigation.

The disclosure of information relating to investigations, such as a confirmation or denial in relation to your request, may also have a negative effect upon the analysis and flow of information to an investigation.

Such a statement, could potentially enable individuals who might otherwise have been the focus of an investigation or charged with an offence, to ascertain or infer the likely extent of information held in relation to an investigation. This may also enable such individuals to adapt their behaviour and/or avoid detection.

The control of information held for the purpose of an investigation is also relevant in relation to the analysis of evidence. Withholding information from the public enables police to effectively filter new information and target resources efficiently. For example, when individuals supply information to the police, greater weight may be given to sources and details that corroborate information that is not in the public domain or multiple independent sources that appear to be consistent.

By releasing more information than is necessary in order to progress an investigation, the chances of false reports or recollections that are distorted by information in the public domain are increased. Similarly, releasing information without a clear idea of

20 Source: David Pozen, The Mosaic Theory, National Security, and the Freedom of Information Act, 115 Yale L. J. 628, 630 (2005). 21 http://www.ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Freedom_of_Information/Detailed_specialist_gui des/law-enforcement-foi-section-31.ashx 22 Please see Appendix A attached for further information relating to the duty to confirm or deny what the effect of the release would be, what information would be received and whether on balance it would aid the investigation, could lead to a large volume of irrelevant leads that the police service would have an obligation to record and follow up. As noted earlier in relation to section 22(2), the College of Policing website23 provides specific advice in relation to investigations and the importance of communication strategies.

Disclosing information without appropriate context may distort media reporting and/or public understanding, encourage further speculation and queries and consequently divert the focus of investigators tasked with establishing the facts pertaining to serious allegations.

To illustrate the potential for new information to be received, it is pertinent to note that the Daniel Morgan Independent Panel has appealed for further information24 and may recommend further lines of enquiry.

The police and in particular the MPS, in conjunction with the CPS are the only organisations with the means and statutory authority to collate, access and analyse all of the information relevant to the murder of Daniel Morgan.

In this context, the 20 working day timescales in relation to FoIA responses (or 40 working days allowing for a public interest test) is unlikely to allow sufficient time to consider all of the relevant issues.

With the above in mind, the timing of the request is relevant to the public interest. This is analogous to the public interest in applying section 22 (information intended for future publication). Police resources are limited, especially at a time of significant reductions to policing budgets. Furthermore, the sensitivity of the information relating to the murder of Daniel Morgan is such that any disclosures would have to be approved at a senior level and/or require consultation with relevant stakeholders.

A statement confirming or denying whether information is held would be significant in relation to the legitimate public interest in ensuring that the MPS are transparent and accountable and in relation to the legitimate public interest served by the prevention and detection of crime and/or the apprehension and prosecution of offenders. However, such a statement would also be significant to the extent that it could impair the ability of the MPS to protect information acquired or created during the course of investigations.

Independent evidence

The ICO guidance in relation to section 30 states:

‘Where it has been alleged that an investigation or prosecution was flawed account should be taken of any independent evidence which either supports or counters that allegation.’

A number of flaws in relation to the investigations and prosecutions relating to the murder of Daniel Morgan have previously been acknowledged by the MPS and CPS.

23 College of Policing (2013) : Communications strategy [Internet]. http://www.app.college.police.uk/app- content/investigations/investigative-strategies/communications-strategy/ 24 https://www.danielmorganpanel.independent.gov.uk/procedures/call-evidence/ This may strengthen the public interest in disclosure. However, the Daniel Morgan Independent Panel has been set up to address the public interest.

To the extent that there is a public interest in disclosing information relating to questions 1-3, including a statement confirming whether or not information is held, the same information is likely to be pertinent to Daniel Morgan Independent Panel and related investigations.

Conclusion - Section 30(3)

The Metropolitan Police Service is charged with enforcing the law, preventing and detecting crime and protecting the communities we serve. There is a public interest in the transparency of policing operations and providing assurance that the MPS is appropriately and effectively dealing with crime. This is particularly apparent in relation to your request to the extent that it relates to high profile issues of national significance regarding issues relating to public confidence in the police service, the spending of public funds and the conduct of police officers. However, these factors also support the strong public interest in safeguarding the integrity of police investigations and operations that the MPS have a statutory duty to conduct.

To the extent that there is any public interest in relation to potentially criminal behaviour, I am mindful of the Information Tribunal judgement in the case of Armstrong v Information Commissioner and HRMC25 which stated:

‘93. Criminal investigations are the responsibility and statutory duty of regulated bodies, such as the police or HMRC. We are not persuaded that there is public interest in disclosing material that may lead to the discovery of further offences or other matters requiring criminal investigation. We also consider that there is strong public interest in ensuring that the operations of authorities which are responsible for conducting criminal investigations are not jeopardised or thwarted through disclosures of information under FOIA.’

There is a significant public interest in identifying wrongdoing and/or criminal conduct. However, as there is no formal statute of limitation for the offence of murder, the crime remains open to investigation from which, potentially, prosecution could result. This is reflected in the standard retention periods for related information (i.e. minimum 100 years). Premature disclosure of information relative to inquiries already conducted by police could prejudice a future investigation and prosecution.

To the extent that the public interest in confirming or denying whether the requested information is held is unrelated to identifying criminal offences, this would carry less weight.

The timing of the request is the decisive factor in determining where the balance of the public interest lies. This is significant in relation to the age of any information that could be held and the fact that the investigation into the murder of Daniel Morgan remains under review. The timing of the request has the potential to undermine investigations and proceedings which would not be in the public interest.

25 http://www.informationtribunal.gov.uk/DBFiles/Decision/i260/David%20Armstrong%20v%20ICO%20%28EA-2008- 0026%29%20Decision%2014-10-08.pdf While the murder of Daniel Morgan remains unsolved, it is not possible to fully assess the importance of related evidence due to the potential for new evidence be received and new lines of enquiry to be pursued that may change the significance of previously captured evidence.

Although your request relates to specific investigations and individuals, the same rationale may apply to similar requests for information that may be within the scope of an investigation if it were held. This is because a series of statements either confirming or denying whether information is held may indicate the scope of an investigation or reveal other information that would impair the investigatory process. This rationale also applies to investigations beyond those relating to the murder of Daniel Morgan.

Once information is in the public domain, it may be difficult to reverse a disclosure decision as the MPS would no longer have control of the information disclosed. Harm of this nature would have an incremental effect and may need to be factored into any future disclosures. Taking into account the number and duration of related investigations that have taken place since 1987 and the volume of information held by the MPS and other public authorities, the statutory FoIA timescales may be insufficient to fully ascertain and consider the harm in disclosure.

The public interest at this moment in time favours protecting information acquired in the course of police investigations to enable space for the MPS to determine the course of investigations that it has a duty to conduct. Ultimately, the work of the police in conjunction with the CPS:  is the primary means by which the legitimate public interest may be served,  has the potential to follow multiple paths and;  is a prerequisite for further proceedings relevant to the public interest.

Section 40(5)(b)(i) - Personal Data

Under section 40(5)(b)(i) of the Freedom of Information Act, the MPS is not required to comply with the requirements of section 1(1)(a) i.e. the duty to inform the applicant whether or not the information is held.

Section 40(5)(b)(i) of the Freedom of Information Act 2000 is applicable in circumstances where a confirmation or denial in relation to whether information is held would breach one or more of the data protection principles specified within the Data Protection Act 1998. This is explained in the ICO’s guidance titled ‘Neither confirm nor deny in relation to personal data’26 which states:

‘There may be circumstances, for example requests for information about criminal investigations or disciplinary records, in which simply to confirm whether or not a public authority holds that personal data about an individual can itself reveal something about that individual. To either confirm or deny that the information is held could indicate that a person is or is not the subject of a criminal investigation or a disciplinary process. If to do so would contravene data protection principles, for example because it would be unfair, then the public authority is not obliged to confirm or deny that it holds the information.

In some cases, if a public authority confirms that it does not hold certain data about an individual, this may itself amount to a disclosure of personal data, because it may tell the world something about that individual. Therefore, a public authority should not restrict the use of this exemption to cases where it holds the requested information. It is also appropriate for the public authority to use it where it does not hold the information, if to disclose that fact would contravene the data protection principles.

This subsection refers to giving the confirmation or denial “to a member of the public”. This reflects the fact that, in general terms, FOIA is concerned with disclosure to the world, and not to the particular individual who submitted the request. There may be situations in which it could be argued that giving the confirmation or denial to the requester would not necessarily contravene data protection principles because the requester already knows that the public authority holds the information.

An example of this could be if someone complained to their local council that their next door neighbour was creating a noise nuisance, and then submitted a FOIA request to the council for information about the investigation of that complaint. If the council confirmed that it held the information, then even if they withheld the information itself under a FOIA exemption, the confirmation alone would disclose personal data about the subject of the complaint, ie it would show that they were under investigation for causing a nuisance.

It may be argued that it would not be unfair to the data subject to tell the requester this, since it would simply confirm what the requester already knows. However, disclosure under FOIA is in effect disclosure to the world; the test in 40(5)(b)(i) is whether giving the conformation or denial to “a member of the public” would contravene data protection principles. It is likely that in this

26 https://ico.org.uk/media/for- organisations/documents/1206/neither_confirm_nor_deny_in_relation_to_personal_data_and_regulation_foi_eir.pdf hypothetical case it would be unfair to the data subject to tell the world that they are under investigation, and hence it would contravene the First Principle.

The ICO’s ‘When to refuse to confirm or deny information is held’27 guidance states:

‘The exact wording of the request for information is an important consideration when deciding whether a public authority should confirm or deny if it holds the requested information. The more specific the request, the more likely it is that a public authority will need to give a neither confirm nor deny response.’

The ICO guidance cited above broadly explains the following:  Exempt information may be revealed by: o Confirming information is held o Confirming information is not held o Inconsistently applying NCND exemptions in response to the same or similar requests  It is only necessary to demonstrate the harm in one of the above scenarios for an NCND response to be appropriate  Cumulative prejudice may result from multiple disclosures  It would be sufficient for a public authority to demonstrate that a confirmation or denial would be revealing to someone with specialist knowledge  The wording of a request may determine whether an NCND response is appropriate.

Personal data is defined within section 1 of the Data Protection Act 1998 as:

‘data which relate to a living individual who can be identified— (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller’

In considering whether confirming or denying whether or not the information requested is held would be in breach of any of the Data Protection Principles, the 1st data protection principle relating to ‘fair and lawful processing’ is relevant which states:

‘1 Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless— (a) at least one of the conditions in Schedule 2, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.’

Your request would appear to relate to specific individuals and/or incident(s) rather than policing in general. Due to the wording of your request, a confirmation or denial statement would constitute ‘personal data’ in relation to the living individuals named in your request.

Section 2 of the Data Protection Act also defines certain classes of information as ‘sensitive personal data’. This includes information relating to:

27 http://www.ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Freedom_of_Information/Detailed_specialist_gui des/when_to_refuse_to_confirm_or_deny_section_1_foia.pdf  the racial or ethnic origin of the data subject  political opinions  religious beliefs or other beliefs of a similar nature  membership of a trade union  the physical or mental health or condition of an individual  sexual life  the commission or alleged commission of any offence  any proceedings for any offence committed or alleged to have been committed by the data subject, the disposal of such proceedings or the sentence of any court in such proceedings.

The ICO guidance titled ‘Personal information’28 indicates that the following factors are relevant when assessing whether a disclosure under FoIA would be fair:  whether the information is sensitive personal data;  the possible consequences of disclosure on the individual;  the reasonable expectations of the individual, taking into account: o their expectations both at the time the information was collected and at the time of the request o the nature of the information itself o the circumstances in which the information was obtained o whether the information has been or remains in the public domain o the FOIA principles of transparency and accountability  any legitimate interests in the public having access to the information and the balance between these and the rights and freedoms of the individuals who are the data subjects.

28 http://www.ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Freedom_of_Information/Detailed_specialist_gui des/personal-information-section-40-and-regulation-13-foia-and-eir-guidance.pdf Sensitive personal data

The ICO’s guide to data protection29 states the following in relation to sensitive personal data:

‘The presumption is that, because information about these matters could be used in a discriminatory way, and is likely to be of a private nature, it needs to be treated with greater care than other personal data.’

The requested information, if held, would constitute sensitive personal data to the extent that it relates to:  the commission or alleged commission of any offence  any proceedings for any offence committed or alleged to have been committed by the data subject, the disposal of such proceedings or the sentence of any court in such proceedings.

A confirmation or denial statement may also require disclosing sensitive personal in relation to 3 of the 4 individuals named in questions 1-3 as it would potentially disclose: 1) Whether a named individual is under investigation 2) What actions have been taken in relation to named individuals 3) The outcome/status of actions/investigations relating to named individuals

A confirmation or denial statement could also indirectly relate to other third parties.

Consequence of disclosure

The 7th data protection principle, specified within schedule 1 of the Data Protection Act 1998 states:

‘Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.’

Therefore, the MPS have a legal obligation to take appropriate steps to protect personal data. One such organisational measure is the appropriate use of the NCND provisions within the Freedom of Information Act 2000.

Your request refers to a news article purporting to contain information relating to question 1-3. The First-Tier (Information Rights) Tribunal Appeal No: EA/2015/0028 related to a case in which the MPS issued a neither confirm nor deny response in relation to a request that referred to unofficial information reported in the media. The Tribunal decision states:

29 https://ico.org.uk/media/for-organisations/guide-to-data-protection-2-2.pdf

The Tribunal decision further states:

‘28. Particularly pertinent to this appeal, the MPS helpfully submits that the following factors indicate that it would not be Fair to confirm or deny holding the Information sought in the request: (a) Confirming or denying the request would inevitably be taken as relevant to the accuracy of the existing press reports (even if it could not provide a formal response either way); (b) Even where information has already been placed in the public domain unofficially, a response which carries an ‘official’ status when will inevitably carry greater credence or currency; (c) Such information in the public domain would create a fresh news story, generating a risk of the reprise of the original story which generated the request and the MPS’s response; (d) Any distress harm suffered by the Data Subject or members of his immediate family from the original report would only be exacerbated by its repetition and garnering of fresh impetus; (e) Just as significantly, if not more so, fresh press coverage would be highly likely to cause particular distress to third parties… (g) Sensitive personal data should only be the subject of consented release into the public domain in the most exceptional circumstances, which do not apply here…’

Similar considerations are applicable to your request.

A statement confirming or denying whether information is held may disclose personal data and/or impair the ability of the MPS to protect personal data, including sensitive personal data, in relation to similar requests for information, either in relation to the Daniel Morgan case or in relation to any other personal data that may be held for policing purposes. This is due to the information that would be disclosed or inferred by such a statement and/or a pattern of such statements.

The disclosure of personal data may cause unnecessary and unjustified distress to the data subject(s), especially to the extent that the requested information contains ‘sensitive personal data’ and/or would not reasonably be expected.

Reasonable expectations

Police officers and individuals subject to police action may have a reasonable expectation of confidentiality in relation to information constituting their personal data that is held by the MPS.

The purposes for which the MPS uses personal data are stated within the MPS Fair Processing Notice30.

Section 1 of this document outlines 2 broad purposes for which the MPS obtains, holds, uses and discloses personal data:

30 http://www.met.police.uk/foi/pdfs/other_information/corporate/mps_fair_processing_notice.pdf  The Policing Purpose - which includes the prevention and detection of crime; apprehension and prosecution of offenders; protecting life and property; Preserving order; maintenance of law and order; rendering assistance to the public in accordance with force policies and procedures; National security; defending civil proceedings and any duty or responsibility of the police arising from common or statute law.  The provision of services to support the Policing Purpose

The MPS Data Protection Compliance Standard Operating Procedures (SOP), published on the MPS Publication Scheme also outlines the way in which personal data held by the MPS should be handled. Section 8.6 of the SOP, titled ‘How to ensure that the processing is lawful’ also refers to the Code of Practice on the Management of Police Information (MoPI) which defines police information as:  Protecting life and property;  Preserving order;  Preventing the commission of offences;  Bringing offenders to justice; and  Any duty or responsibility arising from common or statute law.

Individuals have the right to respect for their private and family life under Article 8 of the Human Rights Act 1998, which states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well- being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

The MPS may also have a common law duty of confidentiality in relation to information held in relation to 3rd parties. The Ministry of Justice publication titled ‘Public Sector Data Sharing: Guidance on the Law’31 states:

‘4. A duty of confidence arises whenever the party subject to the duty is in a situation where he either knew or ought to have known that the other person could reasonably expect his privacy to be protected. The disclosure of data may amount to a breach of confidence if all the following conditions are met:

 The information in question has the necessary ‘quality of confidence’. This means that the information should not be in the public domain or readily available from another source and that it should have a degree of sensitivity and value;  The information in question was communicated in circumstances giving rise to an obligation of confidence. The obligation of confidence may be express or implied from the circumstances, such as where there is a special relationship between professionals (for example, relationships between doctors and bankers and their clients). But there is no requirement for a prior

31 http://www.justice.gov.uk/downloads/information-access-rights/data-sharing/annex-h-data-sharing.pdf relationship to exist between parties, and third parties can also be bound by the duty; and  There was an unauthorised disclosure of that material.’

Therefore, it would be reasonable for an individual to expect that any information that the MPS holds in relation to them would only be used to support a policing purpose and not be unlawfully disclosed to 3rd parties.

Legitimate interests

A legitimate interest is inherent in the disclosure of information upon request under the Freedom of Information Act given the associated benefit of enhancing the transparency and accountability of public authorities.

There may also be a legitimate public interest to the extent that the accountability and transparency of the MPS and police officers would be enhanced in relation to:  actions  investigations  decisions  tactics and  the spending of public funds.

Disclosure may also improve the quality of public debate regarding related issues. This may also enhance public confidence.

There is also a legitimate public interest in informing public debate in relation to issues surrounding the conduct of police officers.

However, it is possible to meet the legitimate public interest identified above without disclosing the information requested under the Freedom of Information Act.

For example, MPS finances, actions and decisions are also subject to external scrutiny by a number of organisations such as:  Her Majesty’s Inspectorate of Constabularies (HMIC).  The Houses of Parliament  The Independent Police Complaints Commission (IPCC)  The Information Commissioner’s Office (ICO).  The Mayor’s Office for Policing and Crime (MOPAC),  The National Audit Office

The actions of MPS police officers may also be subject to internal scrutiny by the MPS Directorate of Professional Standards (DPS).

Individuals who believe that their personal data is held by the MPS can request a copy of the information under section 7 (the subject access provisions) of the Data Protection Act 1998.

To the extent that information held by the MPS is relevant to legal proceedings, it may be subject to disclosure at a later date (e.g. via a court order or civil procedure rules).

The ICO’s guidance in relation to personal information further states:

‘Although assessing fairness involves balancing the rights of data subjects against the legitimate interests in disclosure, this is not the same as carrying out the public interest test for qualified exemptions in FOIA…In particular, there is no assumption of disclosure as there is with qualified exemptions. Personal data can only be disclosed if to do so would satisfy the DPA principles. If the public authority discloses personal data in contravention of DPA principles, it is in breach of its duty as a data controller.’ [emphasis added]

Conclusion - Section 40(5)

Section 40 of the Freedom of Information Act 2000 is designed to address information that is covered by the Data Protection Act 1998. Under section 40(5)(b)(i), the MPS is not required to confirm whether information is held if the confirmation or denial could contravene any of the data protection principles.

Disclosure under FoIA is a disclosure to the world, carries more risk than a private disclosure and it would be unfeasible to remove or recall the data once disclosed. The data subjects concerned would have a reasonable expectation that the requested information would only be disclosed for policing purposes and the legitimate public interest in disclosure can be served via other means. In addition, there is no presumption of disclosure in relation to personal data.

In this instance, I have concluded that confirming or denying whether or not the information requested is held could contravene the 1st data protection principle, relating to the fair and lawful processing of personal data.

Furthermore, in the circumstances of your request, none of the conditions specified within Schedule 2 of the Data Protection Act would be met in relation to confirming or denying whether or not the information requested is held.

Please note that the rationale presented above is in relation to the duty to confirm whether the information requested is held by the MPS. Therefore, this correspondence neither confirms nor denies that the MPS holds the information that you have requested. Advice and Assistance

For further information and context relevant to your request, please see websites and documents linked below:

Daniel Morgan Independent Panel Review Website https://www.danielmorganpanel.independent.gov.uk

Review into Operation Abelard II by the Crown Prosecution Service and the Metropolitan Police Service (May 2012) http://www.cps.gov.uk/publications/agencies/operation_abelard_ii_report_may_2012.pdf

Daniel Morgan Independent Panel Review - ‘Protocol on disclosure of information’ https://www.danielmorganpanel.independent.gov.uk/procedures/information-disclosure- protocol/

Daniel Morgan Independent Panel Review - Call for information https://www.danielmorganpanel.independent.gov.uk/procedures/call-evidence/

ACPO (2006) Murder Investigation Manual http://library.college.police.uk/docs/APPREF/murder-investigation-manual-redacted.pdf

College of Policing: Authorised Professional Practice - Investigation, Managing investigations https://www.app.college.police.uk/app-content/investigations/managing-investigations/

College of Policing: Authorised Professional Practice - Investigative strategies, Communications Strategy https://www.app.college.police.uk/app-content/investigations/investigative- strategies/communications-strategy/#identifying-the-offender

College of Policing: Authorised Professional Practice - Major investigation and public protection, Homicide https://www.app.college.police.uk/app-content/major-investigation-and-public- protection/homicide/

For further information regarding the duty to confirm or deny please see Appendix A attached.

If you are dissatisfied with this response please read the attached paper entitled Complaint Rights which explains how to contact the Information Commissioner with your complaint.

Yours sincerely

Brian Wilson Information Law Advisor

LEGAL ANNEX

Freedom of Information Act 2000

Section 1 (General right of access to information held by public authorities) states:

(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. http://www.legislation.gov.uk/ukpga/2000/36/section/1

Section 17(1) (Refusal of a request) states:

(1) A public authority which, in relation to any request for information, is to any extent relying on a claim that any provision of Part II relating to the duty to confirm or deny is relevant to the request or on a claim that information is exempt information must, within the time for complying with section 1(1), give the applicant a notice which- (a) states that fact, (b) specifies the exemption in question, and (c) states (if that would not otherwise be apparent) why the exemption applies. http://www.legislation.gov.uk/ukpga/2000/36/section/17

Section 22(1) (Information intended for future publication) states:

(1) Information is exempt information if— (a) the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not), (b) the information was already held with a view to such publication at the time when the request for information was made, and (c) it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to in paragraph (a).

(2) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) which falls within subsection (1). http://www.legislation.gov.uk/ukpga/2000/36/section/22

Section 23(1), (3) and (5) (Information supplied by, or relating to, bodies dealing with security matters) states:

(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)

(3) The bodies referred to in subsections (1) and (2) are— (a) the Security Service, (b) the Secret Intelligence Service, (c) the Government Communications Headquarters, (d) the special forces, (e) the Tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000, (f) the Tribunal established under section 7 of the Interception of Communications Act 1985, (g) the Tribunal established under section 5 of the Security Service Act 1989, (h) the Tribunal established under section 9 of the Intelligence Services Act 1994, (i) the Security Vetting Appeals Panel, (j) the Security Commission, (k) the National Criminal Intelligence Service, (l) the Service Authority for the National Criminal Intelligence Service. (m) the Serious Organised Crime Agency.

(5) The duty to confirm or deny does not arise if, 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). http://www.legislation.gov.uk/ukpga/2000/36/section/23

Section 30(1)(a) and (3) (Investigations and proceedings conducted by public authorities) states:

(1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of—

(a) any investigation which the public authority has a duty to conduct with a view to it being ascertained— (i) whether a person should be charged with an offence, or (ii) whether a person charged with an offence is guilty of it,

(3) The duty to confirm or deny 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) or (2). http://www.legislation.gov.uk/ukpga/2000/36/section/30

Section 40(5)(b)(i) (Personal Information) of the Freedom of Information Act 2000 states:

(5)The duty to confirm or deny— (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… http://www.legislation.gov.uk/ukpga/2000/36/section/40 COMPLAINT RIGHTS

Are you unhappy with how your request has been handled or do you think the decision is incorrect?

You have the right to require the Metropolitan Police Service (MPS) to review their decision.

Prior to lodging a formal complaint you are welcome and encouraged to discuss the decision with the case officer that dealt with your request.

Ask to have the decision looked at again –

The quickest and easiest way to have the decision looked at again is to telephone the case officer that is nominated at the end of your decision letter.

That person will be able to discuss the decision, explain any issues and assist with any problems.

Complaint

If you are dissatisfied with the handling procedures or the decision of the MPS made under the Freedom of Information Act 2000 (the Act) regarding access to information you can lodge a complaint with the MPS to have the decision reviewed.

Complaints should be made in writing, within forty (40) working days from the date of the refusal notice, and addressed to:

FOI Complaint Information Rights Unit PO Box 57192 London SW6 1SF [email protected]

In all possible circumstances the MPS will aim to respond to your complaint within 20 working days.

The Information Commissioner

After lodging a complaint with the MPS if you are still dissatisfied with the decision you may make application to the Information Commissioner for a decision on whether the request for information has been dealt with in accordance with the requirements of the Act.

For information on how to make application to the Information Commissioner please visit their website at www.ico.org.uk. Alternatively, phone or write to:

Information Commissioner's Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF Phone: 01625 545 700