Official Secrets Act/National Security Act - Arrests

Freedom of information request reference no: 01.FOI.23.032689

I note you seek access to the following information:

I would like to request some information about suspects arrested under the Official Secrets Act or the National Security Act in the past three years please, so between 14/09/2020 and today inclusive.

For each one, could you provide:

• Suspect age, sex, where the person is from
• Where and when they were arrested
• What offence they were arrested on suspicion of
• Whether they were bailed/released under investigation/no further action was taken/charged.

For those who were charged could you provide the suspect’s name please, and the name of the court where they appeared?

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(5) - Information supplied by, or relating to, bodies dealing with security matters
Section 24(2) - National Security
Section 30(3) - Criminal Investigations
Section 31(3) - Law Enforcement
Section 40(5) - Personal Information

Reason for decision

The MPS is unable to respond to requests for part-monthly data, as to do so in this instance would enable the possibility of crime patterns for arrests to be exposed through multiple individual requests. This would compromise our ability to prevent and detect crime, as well as apprehend offenders.

In addition, to provide the specifics of the date, location for each arrest and the nature of the offence would allow those with a criminal or extremist intent to gain an operational advantage over the MPS and therefore undermine the safeguarding of National Security.

It is for these reasons that Sections 24(1) and 31(1)(a)(b) of the Act are engaged.

Furthermore, in regards to the additional information sought relating to the following:

• a suspects age, sex, where they are from
• where and when they were arrested
• whether they were bailed/released under investigation/no further action was taken/charged.
• for those who were charged could you provide the suspect’s name please, and the name of the court where they appeared?

Section 24 - National Security - Information which does not fall within section 23(1) is exempt information if exemption from section 1(1)(b) is required for the purpose of safeguarding national security.

To provide policing arrangements of this nature would render security measures less effective. In order to safeguard national security, there is a need for the MPS to protect information held as to release it would likely have a detrimental effect on policing resources, particularly in the sensitive area of national security.
Policing resources would be negatively affected should those with intent to map and obtain an operational advantage over MPS resources (allocated for national security purposes) manipulate the disclosed information.

Section 31 - Law Enforcement - 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, by providing information relating to arrests for Official Secret Act offences, which concern the date and location for each arrest and the nature of the offence, would highlight to those who may have had some involvement whether their crimes are likely to have been detected. This would allow them the opportunity to escape capture and evade prosecution.

Modern day policing is intelligence led and this is particularly pertinent with regards to both law enforcement and national security. 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 the release of such information, as to provide the requested data would allow criminals an insight into how the police operate.

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. With the current threat level to the UK given as ‘substantial, the Government website explains that ‘this means that a terrorist attack is likely.’

In consideration of the ramifications of these threat levels, it would not be wise to provide the requested information as this would undermine the investigative and judicial process. There are significant risks associated with the release of such information as this may provide perpetrators with an advantage over the MPS and other forces. Disclosure could have a negative effect on the MPS’s ability to provide the necessary service required should the release of information be used and manipulated by those who are intent on carrying out acts which involve espionage, sabotage and related crimes or that connected with the unlawful disclosure of official information by Government employees. To disclose the requested information would therefore provide them with an opportunity of disrupting police activity.

In addition, providing part monthly data may appear harmless in itself. However, this pieced together with other disclosures can be used in a ‘mosaic effect’ to give a fuller picture to those wishing to evade detection and therefore would be valuable intelligence to criminals.

This ‘cumulative prejudice’ or the ‘mosaic effect’ whereby the information requested may be of increased significance when combined with other information obtained through other means and/or at a later date. The ‘mosaic’ effect 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 analytic synergies, so that the resulting mosaic of information is worth more than the sum of its parts.’ - Source: David Pozen, The Mosaic Theory, National Security, and the Freedom of Information Act, 115 Yale L. J. 628, 630 (2005).

Therefore, disclosure 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 of this information would make members of the public more aware of these types of threats and allow them to take steps to protect themselves and their families. Improved public awareness may lead to more intelligence being submitted to police as they become more observant to suspicious activity, which in turn may result in a reduction of crime

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 MPS’s ability to accomplish its core functions of law enforcement.

To disclose any of this requested information and part monthly data would compromise our law enforcement functions. This would hinder this force’s ability to undertake similar types of investigations, as those involved in this type of criminal activity would be aware of whether this has gone undetected and therefore the opportunity to evade capture and prosecution.

The most persuasive reasons for disclosing all details concerning an Official Secrets Act investigation would be transparency and demonstrate this police force’s effectiveness in prosecuting those individuals who are arrested and charged with offences under the Act. 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. Any disclosure which has the possibility of being harmful to future operations or undermining the judicial process cannot be in the public interest.

In addition the Metropolitan Police Service can neither confirm or deny whether it holds any further information relevant to this request as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 (the Act) does not apply by virtue of the following exemptions:

Section 23 - Information supplied by, or relating to, bodies dealing with security matters - 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).

Section 24 - National Security - (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.

Section 30 - Investigations and proceedings conducted by public authorities - (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).

Section 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, (b) the apprehension or prosecution of offenders,

(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).

Overall Harm for Sections 24 and 31 - Public safety is of paramount importance to the policing purpose and must be taken into account in deciding whether to disclose further information, if held, or not. To confirm or deny whether the MPS holds any further information, would allow interested parties to gain an upper hand and awareness of policing decisions used to safeguard national security. As previously stated, disclosure under FOIA is a release to the public at large. Therefore, to confirm or deny the existence of any further information pertaining to arrests for Official Secret Act offences being committed, could potentially be misused proving detrimental to national security.

Confirming or denying whether any further information is held would be of use to those who seek to disrupt police activity as it would, by process of elimination, enable individuals with the inclination to identify where specific people have or have not been subject of police tactics or investigations.

To confirm whether any information is held in respect of one piece of information and then neither confirm nor deny whether another piece of information is held, is likely to lead the public to deduce that information is held where a NCND response is applied.

Any information identifying the focus of policing activity could be used to the advantage of terrorists, extremist or criminal organisations. Information that undermines the operational integrity of these operational activities (whether information is or is not held in this instance) will adversely affect public safety and have a negative impact on both national security and law enforcement.

To confirm or deny whether any information is held relating to a police investigation would be extremely useful to those involved in any form of criminal activity, as it would enable them to ascertain what type of person or companies may or may not be monitored in any way, enabling those with criminal intent to ascertain whether they may or may not have evaded detection. It would also enable individuals to make mosaic requests which can then provide an overall picture as to who or what organisations/groups or people may be monitored in any way. This would enable individuals to evade detection and compromise the ability of the police to safeguard national security.

It remains our position that under FOIA the MPS will not confirm or deny whether the MPS holds any further information pertinent to your request. This would be counter effective to the safeguarding of national security, and increase the risk of crime if the MPS does not take a consistent approach to requests regarding information held from investigations whether they be monitoring of organisations or individuals. An increase in crime which arises out of an inconsistent approach to the 'NCND' principle may lead to an escalation of criminal activity that could have a detrimental effect on national security and police intelligence.

Disclosing whether or not further information is held would lead to the compromise of ongoing or future operations to protect the security or infrastructure of the UK and increase the risk of harm to the public. To counter this, a full review of security measures would be needed and additional costs would be incurred.

A statement confirming or denying whether or not additional information is held (e.g. whether the MPS holds further information into these types of investigations) would enhance the transparency and accountability of the force and its operations.

This would provide an insight into the police service and enable the public to have better understanding of effectiveness of the police, particularly, in relation to the spending of public funds and the decisions taken by officers. As transparency is intrinsically linked to public confidence, confirming or denying whether any further information is held, would be likely to improve public confidence in the MPS.

If we confirmed or denied that MPS held further information, this would allow the public to make informed decisions about how police gather intelligence. This would greatly assist in the quality and accuracy of public debate, which would otherwise likely be steeped in rumour and speculation.

Confirmation of further information being held would reveal areas of police interest. The release of this type of information could also reveal details from which inferences could be drawn about police intelligence or lines of enquiry. Its release could also adversely affect the ability of the MPS to conduct any ongoing or future investigation, as targets would be aware of police interest in their activities.

Therefore, to confirm or deny the existence of any other information being held would disclose MPS practices used, thereby exposing operational procedures and investigative protocols. As previously inferred, information relating to investigative tactics and protocol will rarely be disclosed under the Act and only where there is a strong public interest consideration favouring disclosure.

Confirmation or denial whether a level of policing activity has or has not occurred in any specific area would enable those engaged in criminal or terrorist activity to identify the focus of policing activity and any tactics that may or may not be deployed.

To confirm or deny that any further information is held relating to this request would undermine any investigative process and compromise the integrity of current or future operations.

By confirming or denying whether or not any further information is held would mean that law enforcement tactics would be compromised which would hinder the prevention and detection of crime. Disclosure of information, if held, would prejudice the ability of the MPS to conduct similar investigations.

MPS resources and its ability to operate effectively and efficiently would directly be affected as this information, if held, could be manipulated by those with criminal intent to operate in those areas. This would ultimately require more resources and would add to the cost to the public purse.

The security of the country is of paramount importance and the Police service will not divulge further information if to do so would place the safety of the public or an individual at risk or undermine national security and law enforcement and therefore compromise the work of the Police Service. Whilst it is recognised there is a public interest in the transparency of policing operations, and in this case providing assurance that the police service is appropriately and effectively engaging with the threat posed by those seeking to undertake acts which could cause damage to the UK, there is a very strong public interest in safeguarding both national security and the integrity of police investigations and operations in the highly sensitive area.

As much as there is public interest in knowing that policing activity is appropriate and balanced this will only be overridden in exceptional circumstances. Areas of interest to the police are sensitive to the extent that they reveal local intelligence. To confirm or deny the existence of any further information, would allow interested parties to gain an upper hand and awareness of policing decisions used during investigations, leading to an increase of harm to either the investigation itself, the subject of the investigation.

Whilst to confirm or deny that any further information is held, would reassure the public that any investigation had been or was being properly conducted and allow for a greater understanding of how information has been gathered, this could undermine the role and effectiveness of any future investigations. Any disclosure of further information, if held, which has the potential to jeopardise an investigation and the judicial process, is therefore likely to prejudice law enforcement.

Therefore, after weighing up the competing interests I have determined that confirmation or denial of any further information being held relating to this request would not be in the public interest, as it would be detrimental to the MPS’s future role of conducting investigations.

However, this should not be taken as necessarily indicating that any information that would meet your request exists or does not exist.

Section 40 - Personal Information - Section 40 of the Freedom of Information Act 2000 is designed to address information that is covered by the Data Protection Act 2018.

Under section 40(5), 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.

In most cases Personal Data is exempt from disclosure under the Freedom of Information Act as I will explain below.

To confirm or deny whether any further information exists, would be disclosing whether a named individual(s) was arrested in relation to this type of offence. As a result, this would publicly reveal information about an identifiable individual, thereby breaching the right to privacy afforded to persons under the Data Protection Act (DPA) and the General Data Protection Regulation (GDPR) 2018.

Where an individual is requesting his or her own personal data the information is always exempt. Such information can be requested under other legislation.

However, where an individual is requesting third party personal data the MPS must ensure that any action taken adheres to the principles of the Data Protection Act 2018 and the GDPR. To clarify, the Freedom of Information Act only allows disclosure of personal data if that disclosure would be compliant with the principles for processing personal data. These principles are outlined under section 34 of the DPA 2018 and under Article 5 of the GDPR.

Please note that the rationale presented above is in relation to the duty to confirm whether any further information requested is held by the MPS.

Section 40 is a class based absolute exemption and there is no requirement to consider the public interest in this case. To confirm or deny information were held would likely identify individuals and therefore breach the Data Protection Act.

No inference can be drawn from this refusal that any further information is or is not held

Disclosure

In relation to the first part of your request, as the MPS is unable to provide you with part monthly data, the timescale of your request has been restricted to the period 01/09/2020 – 31/08/2023.

As such, the MPS is able to confirm that within this period there have been 6 arrests under the Official Secrets Act.

In addition, the Metropolitan Police Service can neither confirm nor deny that it holds any further information relevant to this request, as the duty in s1(1)(a) of the Freedom of Information Act 2000 does not apply by virtue of the following sections:

• Section 23(5) - Information supplied by, or relating to, bodies dealing with security matters
• Section 24(2) - National Security
• Section 30(3) - Criminal Investigations
• Section 31(3) - Law Enforcement
• Section 40(5) - Personal Information

Please note this part of your response should not be taken as an indication of whether or not any additional information is held.