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 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” 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).