MEPO 38-85, 87-90 – Reichstag Fire Trial Defence – Prosecution Matters

Freedom of information request reference no: 01.FOI.23.027909

I note you seek access to the following information:

I would like to request access to MEPO 38/85-90.

I am writing a biography of a British officer whose career spanded the years 1912-1948 (and possibly later).

I believe he may have had a hand in securing the safety of some of those targeted by the Nazis post the Reichstag fire.

Gaining access to these files may then add to contibruting materials towards the biography I am writing.

Decision

Following a further review of the files and the previous disclosures, I have today decided to disclose the information provided in response to previous Freedom of Information requests. Some information has again 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 23 - Information supplied by, or concerning, certain security bodies.
Section 30(2)(b) - Investigations and proceedings conducted by public authorities.
Section 31(1)(a)(b) - Law enforcement
Section 40(2)&(3) - Personal information

Reason for decision

The information which has been exempted (either redacted or removed) relates to information on how police conducted enquiries during demonstrations in support of the Reichstag Fire Trial Defence, which is exempt subject Section 31(1)(a)(b) of the Act.

MEPO 38/85 contains information which was provided in confidence during the course of an investigation, which is exempt subject to Section 30(2)(b) of the Act.
In addition, Section 23(1) has been applied as some of the withheld information would reveal the extent of any involvement of the security bodies by the disclosure of these records. Information has also been exempted as it relates to personal information and therefore Section 40(2)(3) is engaged.

Section 23 - Information supplied by, or concerning, certain security bodies.
Section 30 - Investigations and proceedings conducted by public authorities - Disclosing information which has been obtained in confidence could prevent others from coming forward to give valuable evidence. Although these inquiries and trial defence meetings were held in the 1930s, if it were believed that the MPS were unwilling to protect the anonymity of an individual then, the public would be unwilling to provide assistance now and in the future. The MPS would not wish to reveal who, what and when intelligence is recorded as this would clearly undermine the law enforcement process. This would impact on police resources and more crime and terrorist incidents would be committed, placing individuals at risk. To disclose information received in confidence would allow those with a criminal intent who plan to disrupt police activity to recognise sensitive operational techniques and knowledge of how to plan their activity to better try to evade detection.

The strongest reason favouring disclosure is transparency, as this would allow the public to see all the evidence gathered by the MPS during the inquiry into the burning of the Reichstag building and the meetings by the trial defence. The strongest reason favouring non-disclosure is to release any information obtained in confidence could hinder any future police operations as individuals would be hesitant to assist the police for fear of this being made public. By withholding information received in confidence, even if received in the 1930s, the public would be reassured that the MPS is serious about protecting its sources.

I have determined that a disclosure of information pertinent to any operation, that may reveal intelligence held and who this has been received from, would undermine the role and effectiveness of any future operations as the general public would be reluctant to provide information for fear that a confidential source would not be maintained.

Section 31 - Law enforcement - In considering whether or not this information should be disclosed, I have considered the potential harm that could be caused by disclosure.

FOIA is considered to be a release to the world as once the information is published the public authority, in this case the MPS, has no control over what use is made of that information. The information which has been redacted or removed relates to techniques used by the police during the conduct of their enquiries.

To disclose this information could be harmful to current and future investigations, as it would allow members of the public to define the general steps taken in relation to law enforcement, in that they would be able to identify the type of tactics employed by the MPS. There remains the possibility that the current or future law enforcement role of the MPS may be compromised by releasing information relating to operational tactics. There are significant risks associated with providing information in relation to any aspects of a police operation, whether it be historical or current, as to provide such details would reveal how information is garnered, which would provide criminals of today with an insight to how the police operate, and people who wish to harm the citizens of London or the UK with the opportunity of disrupting police activity.

This could be to the detriment of providing an efficient policing service and a failure in providing a duty of care to all members of the public and might require the MPS to actually have to increase the amount of officers available to them thus increasing the cost to the public purse.

Release would have the effect of compromising law enforcement tactics as disclosing the methods being employed to mitigate the risk of criminal activity would hinder the prevention and detection of crime. More crime would be committed, and individuals would be placed at risk.

Disclosure would technically be releasing sensitive operational information into the public domain which would enable those with the time, capacity and inclination to try and map strategies used by the MPS.

The MPS is reliant upon the techniques used during operations and investigations and the public release of the modus operandi employed during these operations would prejudice the ability of the MPS to conduct policing of similar operations.

Additionally, MPS resources and its ability to operate effectively and efficiently would directly be affected as this information, could be manipulated by those with criminal intent to operate in those areas.

I have determined that the disclosure of the above information would not be in the public interest. I consider that the benefit that would result from the information being disclosed does not outweigh not disclosing information relating to investigative tactics employed in relation to those supporting the Reichstag Fire Trial Defence. To disclose how the police conducted their enquiries i.e. gathered information and recorded intelligence would allow criminals an insight into police investigations and ultimately how to evade prosecution.

Section 40(2)&(3) Personal information - Under Section 40(2) and (3) of the Act, Public Authorities are able to withhold information where its release would identify any living individual and breach the principles of the Data Protection Act 2018 (DPA). I have applied this exemption in that the names and addresses of individuals which are contained within some of these records would constitute personal data which, if released, would be in breach of the rights provided by the DPA. This would constitute personal data which, if released, would be in breach of the rights provided by the DPA.

The six principles of the DPA govern the way in which data controllers must manage personal data. Under principle one of the DPA, personal data must be processed fairly and lawfully. I consider that providing information that identifies individuals constitutes personal data. The release of this information would be unfair as the persons concerned would have no reasonable expectation that the MPS would make this information publicly available.

In reaching my decision, I have given due regard to the condition at Article 6(1)(a) and 6(1)(e) of the GDPR. Condition one of the GDPR requires that consideration is given to whether consent for disclosure has been given whilst Condition six requires that consideration is given to performance of a public task in the public interest.

Having considered both conditions, I have established that no consent is present or would likely be received to release this information.

Following advice that it would not be possible to respond to a request for 6 MEPO files in a single Freedom of Information request, due to the time that would be required to undertake a full review of multiple files, you confirmed on 05/01/2023 that you were willing to request material that had been disclosed in response to previous Freedom of Information requests for MEPO 38/85 and MEPO 38/87-90.

Disclosure

Please find below copies of the released documentation contained in MEPO 38/85, MEPO 38/87, MEPO 38/88, MEPO 38/89 and MEPO 38/90.

The total number of pdf documents for each file are as follows:

• MEPO 38/85 – 7 parts
• MEPO 38/87 – 2 parts
• MEPO 38/88 – 1 part
• MEPO 38/89 – 3 parts
• MEPO 38/90 – 4 parts