Facial Recognition Board

Freedom of information request reference no: 01.FOI.23.028716

I note you seek access to the following information:

I am writing to request the following information about the Met's Facial Recognition Board.

1. A copy of all Met's internal facial recognition board meeting minutes dated since May 2022.

Decision

I have today decided to disclose some of the requested information. Some data has been withheld as it is exempt from disclosure and therefore this response serves as a Refusal Notice under Section 17 of the Freedom of Information Act 2000 (the Act) by virtue of the following exemptions:

Section 31(1) – Law Enforcement
Section 40(2) Personnel Information
Section 42(1) - Legal Advice
Section 43(2) – Commercial Interests

Reason for decision

Before I explain the reasons for the decisions I have made in relation to your request, I thought that it would be helpful if I outline the parameters set out by the Freedom of Information Act 2000 (the Act) within which a request for information can be answered.

The Act creates a statutory right of access to information held by public authorities. A public authority in receipt of a request must, if permitted, confirm if the requested information is held by that public authority and, if so, then communicate that information to the applicant.

The right of access to information is not without exception and is subject to a number of exemptions which are designed to enable public authorities to withhold information that is not suitable for release. Importantly, the Act is designed to place information into the public domain, that is, once access to information is granted to one person under the Act, it is then considered public information and must be communicated to any individual should a request be received.

For the details contained in the minutes that highlight police capabilities redactions were made as to disclose the details of the date of completion and how software is merged with the MPS infrastructure etc could cause an individual to use this information to avoid detection, circumvent arrest etc. This cannot be allowed.

Section 31(1)(a)(b) - Law Enforcement - Disclosure of the details of the date of completion and how software is merged with the MPS infrastructure etc risks an individual being able to use this information to avoid detection and/or circumvent arrest. This may cause an investigation to collapse or undermine the confidence in the police.

Disclosure of the details of the date of completion and how software is merged with the MPS infrastructure etc risks an individual being able to use this information to avoid detection and/or circumvent arrest.
This would hinder the prevention and detection of crime and also prejudice the MPS's ability to fairly conduct an investigation.

The harm identified above, is reduced by not disclosing of the details of the date of completion and how software is merged with the MPS infrastructure etc to ensure an individual isn’t able to use this information to avoid detection and/or circumvent arrest.

The MPS has a duty of care to the communities served. In view of the arguments provided above, it is our opinion, that disclosure in full of the details of the date of completion and how software is merged with the MPS infrastructure etc cannot be permitted.

Section 40(2)&(3) - Personnel Information - Section 40(2)(a)(b) of the Act provides that any information to which a request for information relates, is exempt information if the first condition of Section 40(3A)(a) is satisfied. The first condition of Section 40(3A)(a) states that personal information is exempt if its disclosure would contravene any of the data protection principles. If the disclosure of the requested personal data would not contravene the data protection principles, the disclosure must also not contravene Sections 3A(b) and 3B of the Act.

There are six principles that are set out in Article 5(1)(a) of the General Data Protection Regulations (GDPR) that dictate when the processing of personal data is lawful. The first principle requires that any processing of personal data must be lawful, fair and transparent. Under Article 6(1)(f) of the GDPR, the disclosure of personal data is considered to be lawful if:

a. There is a legitimate interest in the disclosure of that personal data.
b. The disclosure of the personal data is necessary to meet that legitimate interest.
c. The disclosure would not cause unwarranted harm to the data subject.

Having considered the release of information relating to MPS staff, such as names and contact details, I have found, having considered the legitimate interest test, that:

a. The disclosure of this information would satisfy an identifiable legitimate interest, being to provide information that will show transparency.

b. This disclosure of the requested personal data is necessary to satisfy the legitimate interest identified at point a.

c. However, publication of MPS staff details would be likely to lead to unwanted and unsolicited intrusion as they all do not have public facing roles that warrants their personal information to be released. In this regard, I believe that disclosure of this personal data would be likely to cause unwarranted harm.

The provision to refuse access to information under Section 40(2)(a)(b) and (3A)(a) of the Act is both absolute and class based. When this exemption is claimed, it is accepted that harm would result from disclosure. There is accordingly no requirement to demonstrate what that harm may be in refusing access to information.

Section 42(1) - Legal Professional Privilege - Under Section 42(1) of the Act, Public Authorities are able to withhold information to which a claim of legal professional privilege applies.

Legal professional privilege is a common law principle that enforces the fact that a communication of a legal nature between a client and professional legal advisor is confidential. Legal professional privilege is intended to ensure that the communication between client and legal advisor remains open, candid and informed. When a public authority seeks to claim legal professional privilege, the dominant purpose of that communication must be to seek and/or provide legal advice. Where such a claim applies, that information cannot be disclosed without the consent of the client.

I have claimed this exemption as the requested emails contain legal advice.

Flow of Legal Advice - The MPS is reliant upon the provision of impartial legal advice to inform and guide its decision-making. The public release of the requested legal advice would be likely to impede the free and frank channels of communication that exist between the MPS and professional legal advisors. This is because, over time, those seeking legal advice on behalf of the MPS and/or providing advice to employees of the MPS, would be less likely to be candid in future communications owing to the risk of future release. This would affect the quality of advice provided by legal advisors to the MPS and the ability of the MPS to obtain open, informed and unbiased legal advice in future.

Having considered your request, I accept that there is a public interest in transparency when any request is made for police information. The public interest favouring release must be balanced against any associated risk and/or prejudice that would be caused by disclosure.

I have considered whether it is appropriate to release the legal advice provided in these minutes. Having considered this, I accept that its release would help the general public to better understand the type of legal advice it receives when implementing the LFR system. However, having considered the wider impact of the release of legal advice, I have found that the content of the advice is largely immaterial, as its non-disclosure is about maintaining a safe and trusted forum for the provision of free and frank advice between the MPS and recognised professional legal advisors. Having considered your request, I have found that any action that would adversely affect the ability of police to obtain open and candid advice is not in the public interest. I have accordingly refused to release the information described above in response to your request for information.

Section 43(2) – Commercial Interests - Section 43(2) provides that any information is exempt if its disclosure would, or would be likely to, prejudice the commercial interests of any person.

The MPS has claimed Section 43(2) of the Act for disclosure of the total cost of the contracts and details of the contracts as it is commercially sensitive. Disclosure of the requested information could be used by competitors to price future product and procurements which would harm the MPS as the public sector does have finite resources.

Harm to the Commercial Interests of the MPS - Disclosure of the requested information could be used by competitors to price future product and procurements which would harm the MPS as the public sector does have finite resources.

Public disclosure would harm the Met’s ability to achieve best value in future procurement processes in this area. The MPS would not want to public disclose information regarding its expenditure that would detrimentally impact on any future procurement process. The release of any information that would negatively influence, or impact upon, a future procurement process is not in the public interest.

Having considered the requested information for release, I acknowledge that a public interest would be satisfied in demonstrating how public money is spent. This public interest must be balanced against any identified risk.

In this case, disclosure would harm future procurement processes. Disclosure would negatively impact upon the Met’s ability to achieve best value in future procurement processes in this area.

Having considered the competing public interest factors, I have found that the public release of information that would negatively influence or impact upon a procurement process is not in the public interest. I have accordingly refused this part of your request for information.

It should not be surmised that we are applying Sections 31, 40, 43 to the same pieces of information.

Disclosure

Please see the attached redacted minutes requested.