MEPO 38/110 - relating to Terence MacSwiney

Freedom of information request reference no: 01.FOI.23.030909

I note you seek access to the following information:

I am requesting the release of MEPO 38/110 . This relates to Terence MacSwinney - Lord Mayor of Cork 1920. This file has already been released under FOIA in the past and I am happy to have the most recent previous disclosure made for this file.

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 23 - Information supplied by, or concerning, certain security bodies
Section 27 - International Relations
Section 30 - Investigations and proceedings conducted by public authorities
Section 31 - Law enforcement
Section 38 - Health and Safety
Section 40 - Personal information

In addition, please note that although these exemptions were engaged at the time of the original request, one or more may no longer be relevant due to the limit on the timeframe for its application.

Reason for decision

The rationale for non-disclosure of some information was as follows:

To provide information which concerns how the police conduct their enquiries during the course of an investigation and the evidence gathered, would allow criminals to have a better understanding of how the MPS prevent and detects crime, as well as hinder the apprehension and prosecution of offenders. As such, the information was exempt by virtue of Section 31(1)(a)(b) of the Act.

In addition, Section 23(1) was applied as some of the withheld information would reveal the extent of any involvement of the security bodies by the disclosure of these records.

The application of Section 27(1)(a)(c) related to the liaisons which took place with another state and Section 30(2)(b) concerned information which was obtained from confidential sources, the disclosure of both was deemed prejudicial to international relations and likely to hinder the public from providing valuable information relating to criminal activity.

The engagement of Section 38(1)(a) was applied on the basis that disclosure of information could cause unnecessary suffering both mentally and physically to any surviving relatives of Terence MacSwiney.

Finally, information was exempted as it related to personal information, the disclosure of which would breach the right to privacy afforded to persons under the Data Protection Act 2018 (DPA) and the General Data Protection Regulation (GDPR) and therefore Section 40(2)(3) was engaged.

Section 23 - Information supplied by, or concerning, certain security bodies - was applied as some of the withheld information would reveal the extent of any involvement of the security bodies by the disclosure of these records.

Section 27 - International Relations The British Government develops and maintains a robust relationship with other nation states which can promote mutual interest in trade, defence, environmental issues, human rights and the fight against terrorism and international crime.

There is the prospect that should we disclose information in relation to any liaisons which took place with the MPS, this would have a detrimental effect on the UK government’s relationship with that country and as a consequence other states or international organisations, would reconsider their affinity with the UK. This would consequently affect the UK's international abilities relating to its overseas citizens, consular and commercial interests and could lead to a lack of trust and undermine law enforcement agreements in the future. It could also influence the sharing of information provided during the course of political and diplomatic exchanges.

The release of the details of any particular investigation may hinder the relationship with the countries that might have assisted in the investigation or where we may have assisted them. This would be to the detriment of any future investigations and could lead to fewer successful investigations. This may also mean that individuals and agencies would be reluctant to report cases or interact with the MPS.

To release information in relation to liaisons and assistance that might have been received may hinder and undermine the partnership approach between Countries in respect of law enforcement and international cooperation.

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. If it were believed that the MPS were unwilling to protect the anonymity of an individual, the public would be unwilling to provide assistance. 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.

Section 31 - Law enforcement - The application of exemptions Section 30 and 31 relate to different pieces of information that is held.

A Freedom of Information Act request is not a private transaction. Both the request itself, and any information disclosed, are considered suitable for open publication. This is because, under the Act, any information disclosed is released into the wider public domain, effectively to the world, not just to an individual. Whilst not questioning the motives of the applicant any information disclosed in relation to this request could be of use to those who seek to cause harm to members of the public by gaining an understanding of the operational techniques employed by officers within the MPS, when conducting an investigation. Disclosure would therefore compromise the MPS’s ability to accomplish its core function of law enforcement.

The threat from terrorism cannot be ignored. It should be recognised that the international security landscape is increasingly complex and unpredictable. The UK faces a sustained threat from violent terrorists and extremists. Since 2006, the UK Government have published the threat level, as set by the security service (MI5) based upon current intelligence and that threat has remained at the second highest level, ‘severe’, except for two short periods during August 2006 and June and July 2007, when it was raised to the highest threat, ‘critical’, and in July 2009, when it was reduced to ‘substantial’. The current threat level to the UK is ‘severe’. The Home Office website explains that ‘this means that a terrorist attack is highly likely’.

In consideration of the ramifications of these threat levels, it would not be wise to disclose how the police conducted their enquiries and gathered intelligence in relation to Terence MacSwiney. Disclosure would be harmful to future investigations and policing in general, if details around police techniques were disclosed. Some of the investigative tactics employed during the 1920s are still applicable to present day policing. By disclosing these details would allow members of the public to define and identify the investigative tactics used by the MPS when undertaking operations of this type.

The MPS is charged with enforcing the law, preventing and detecting crime and protecting the communities we service. There remains the possibility that the current or future law enforcement role of the MPS may be compromised by the releasing of information relating to investigative tactics. Modern-day policing is intelligence led and information of this nature needs to be treated with extreme sensitivity as it could have a detrimental effect on the operational effectiveness of the MPS. There are significant risks associated with providing information in relation to any aspects of an investigation, whether it be historical or current, as to provide such details would reveal how investigations are carried out, which would provide criminals of today with an insight to how the police operate, and people who wish to harm the citizens of London 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.

The public interest is not what interests the public but what will be of greater good if released to the community as a whole. It is not in the public interest to disclose information that may compromise the service's ability to accomplish its core function of law enforcement.

Release would have the effect of compromising law enforcement tactics as by disclosing the methods being employed to mitigate the risk of a terrorist or criminal incident etc. 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 and assist them in evading capture.

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

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.

Section 38 - Health and Safety - Due to the circumstances surrounding the death of Terence MacSwiney, to disclose any information would likely cause unnecessary mental anguish or threaten the physical health of the deceased’s family. The health and safety of individuals in relation to their mental or physical wellbeing is of paramount importance to MPS. Any disclosure which endangers this by showing a lack of sensitivity is likely to lead to a loss of confidence and disengagement by the public and this cannot be in the public interest.

The security of the country is of paramount importance and the Police service will not divulge whether information is held if to do so would place the safety of an individual or people at risk or undermine law enforcement. Whilst there is a public interest in the transparency of policing operations and providing assurance that the police service is appropriately and effectively engaging with the threat posed by various groups or individuals, there is a very strong public interest in safeguarding the integrity of police investigations and operations in the highly sensitive area of crime and terrorism prevention.

The most persuasive reasons for disclosing the information would be transparency surrounding investigations conducted by the MPS and the liaisons which take place during the course of enquiries. This would lead to greater public awareness and increased debate.

However, these need to be weighed against the strongest negative reasons, which, in this case, by releasing information would compromise and undermine the MPS’s law enforcement capabilities in its ability to prevent and detect crime and apprehend and prosecute offenders. Disclosure would be harmful to future investigations if information relating to how the MPS conducts an operation, gathers and records intelligence were disclosed. It is noted that these investigative tactics were employed in the 1920s and 1930s; however, the basis of some of the methods adopted is still applicable to present day policing.

Even though these tactics have evolved over time, they are still based on tactics that were used over 90 years ago and to disclose these details would allow those with a criminal intent to know how to identify what level of policing activity is likely to take place and what tactics may or may not have been employed in an investigation.
The effect of this information being available to the applicant and more importantly those who might wish to disrupt Police tactics, would be a requirement for a full review of police tactics and possible increase in costs to the public purse.

Once such tactic would be obtaining information from a confidential source and to disclose 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. Disclosure of information which could hinder any future police operations due to individuals being hesitant to assist the police for fear of this being made public would not be in the public interest.

In addition, the disclosure of information detailing our relationship with another country could potentially damage the bilateral relationship between the UK and other states. This would reduce the UK government's ability to protect and promote UK interests through its relations with those other states and this would not be in the public interest, as we need to protect the interests of the United Kingdom abroad.

Section 40 - 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 details of individuals who may have consulted with the MPS would constitute personal data which, if released, 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 the release of the details of any individual who the MPS might have consulted constitutes personal data. The release of this information would be unfair as the person(s) concerned would have no reasonable expectation that the MPS would make this information publicly available.

In reaching my decision, I have, in each case, 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.

This exemption is both absolute and class based. When this exemption is applied, it is accepted that harm would result from disclosure. There is accordingly no requirement to consider whether release of information is in the public interest or demonstrate what harm would result from disclosure.

Disclosure

Please find below attached previously disclosed documentation relating to MEPO file 38/110. These totalled 14 pdfs.