MPS communication with the world media organisations relating Martine Vik-Magnussen murder

Freedom of information request reference no: 01.FOI.23.033022

I note you seek access to the following information:

We make this request pursuant to section 1 of the Freedom of Information Act 2000 (“FOIA”). The information that we seek disclosure of pursuant to this request are:

a. All communications between the Metropolitan Police Service (“MPS") and representatives of media organisations anywhere in the world, concerning the investigation of the murder of Martine Vik-Magnussen (Operation Debruce) – including, but not limited to:
i. Production companies including the British Broadcasting Corporation (BBC), Monster AS, FremantleMedia Ltd, Bertelsmann SE & Co. KGaA,‘Discovery+’, Warner Bros. Discovery, Inc., and any related entities; and,
ii. Journalists, including Ms Marianne Vikas and Ms Nawal Al-Maghafi.

b. Copies of all MPS press releases relating to Operation Debruce to date.

c. Confirmation of the following concerning all arrest warrants sought and or issued with respect to Operation Debruce:
i. The number of warrants sought;
ii. Each date on which a warrant was sought;
iii. Each date on which a warrant was issued;
iv. The offences specified for the purposes of each warrant

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 30(3) - Investigations and proceedings conducted by public authorities.
Section 40(2)&(3) – Personal Information
Section 40(5B)(a)(i) - Personal Information

Reason for decision

Section 30(1)(a)(i) - Investigations and proceedings conducted by public authorities - of the Act, Public Authorities are able to withhold information if it has, at any time, been held by the authority for the purposes of an investigation with a view to it being ascertained whether a person should be charged with an offence.

By its very nature, any information held relating to investigations is sensitive in nature.

The exemption under Section 30 is concerned with preserving the safe space that can be critical to the investigation and prosecution process. It is designed to protect the independence of the judicial and prosecution process by preserving the criminal court as the sole forum for the determination of guilt.

The MPS will never disclose information that could identify sensitive investigative activity and therefore undermine their investigations. To do so would hinder the prevention and detection of crime, as well as prejudice the MPS's ability to fairly conduct investigations. To disclose such information would be harmful to any investigations, should they be unsolved at this time.

To disclose information at this time has the potential to cause any ongoing investigation to collapse, as well as undermine the confidence in the police. Should the public be given such information, suspects or potential suspects could be alerted as to the extent of police activity. As such there is the potential for that information to frustrate the operational enquiry team, by alerting any additional suspects for example, or giving them prior notice of police activity, thus helping them to evade justice.

To disclose any information when there is an ongoing investigation would hinder the ability of the MPS to conduct a full and fair investigation which would severely impact on our ability to prevent and detect crime.

Section 30(3) - Investigations and proceedings conducted by public authorities - A public authority can apply Section 30(3) if the requested information - if it were held - would fall within the scope of the Section 30 exemption. If the requested information is held, the relevant subsection would be Section 30(1)(a)(i), which concerns information that is held at any time for the purpose of any investigation which the public authority has a duty to conduct, with a view to it being ascertained whether a person should be charged with an offence.

By its very nature, any information held relating to investigations is sensitive in nature.

Under the Act there is a requirement to comply with Section 1(1)(a) and confirm whether or not information is held, however in some cases, it is that confirmation or not, which could disclose facts harmful to policing and in such cases the MPS takes advantage of its ability under the FOI legislation, to, where appropriate, neither confirm nor deny whether the information requested is or is not held.

The exemption under Section 30 is concerned with preserving the safe space that can be critical to the investigation and prosecution process. It is designed to protect the independence of the judicial and prosecution process by preserving the criminal court as the sole forum for the determination of guilt.

The MPS will never disclose information, including via a confirmation or denial statement, which could identify sensitive investigative activity and therefore undermine their investigations. To do so would hinder the prevention and detection of crime, as well as prejudice the MPS's ability to fairly conduct investigations. Confirming or denying that the requested information is held would be harmful to any investigations, should they be unsolved at this time.

Confirming or not that the requested information is held would identify our lines of enquiry, which has the potential to cause any ongoing investigation to collapse, as well as undermine the confidence in the police. Should the public be given such information, suspects or potential suspects could be alerted as to the extent of police activity. As such there is the potential for that information to frustrate investigations by alerting any suspects to prior notice of police activity, thus helping them to evade justice.

Furthermore, the control of information held for the purpose of an investigation is important to the effective conduct of an investigation. The College of Policing website contains specific information relating to investigations and communications strategies and states:

‘The way in which investigators manage communications will have a significant effect on the investigation they are conducting. The main purpose of this strategy is to communicate or receive information which assists investigators to progress their enquiries. This can be achieved through internal communications by using colleagues and partners within the criminal justice system and through external communications by using partner agencies and community networks.’

Further to this, there is therefore a real risk that confirming or denying the requested information would hinder or disrupt any current or future investigative process, and as such it would not be in the public interest to do so. The control of information held for the purpose of an investigation is also relevant in relation to the analysis of evidence. Withholding information from the public enables the police to effectively filter new information and target resources efficiently. For example, when individuals supply information to the police, greater weight may be given to sources and details that corroborate information that is not in the public domain or multiple independent sources that appear to be consistent.

The MPS also has a duty of confidence to victims, informants and suspects. Consequently, the disclosure of information relating to investigations, including a confirmation or denial statement, is likely to undermine trust in the MPS, discourage individuals from assisting the police and impair investigations and/or law enforcement functions. This would ultimately have a negative effect upon the analysis and flow of information to the police.

Modern-day policing is intelligence led, and the MPS heavily rely upon victims, witnesses and informants coming forward to provide evidence. The MPS also routinely shares information with other law enforcement agencies as part of our investigative processes. To confirm or not the specific detail outlined in your request would undermine the partnership approach to investigations and law enforcement, and therefore hinder the prevention and detection of crime.

Confirming or not that information is held would prejudice how investigations are carried out in the future by revealing investigative activity. The MPS has to be mindful of future or ongoing investigations which may be occurring. Irrespective of whether information is or is not held, if held it would be held solely for the purpose of investigating crimes and there is therefore a risk that disclosing whether or not the requested information is held could hinder any future investigative process. As a confirmation or denial statement is likely to disrupt any investigative process, it would not be in the public interest to do so.

Section 40(2)&(3) - Section 3 of the Data Protection Act 2018 confirms that information which relates to an identified or identifiable living individual is Personal Data.

The Freedom of Information Act provides an exemption for Personal Data and this is known as the section 40 exemption.

Where the request is seeking access to third party personal data the Section 40(2) exemption may be engaged.

In order to apply the Section 40(2) exemption, the disclosure of the requested information must satisfy either the first, second or third conditions as defined by subsections 3(A), 3(B) and 4(A) of the Data Protection Act 2018.

The first condition ensures that the exemption would apply in circumstances where the disclosure of the information would breach any of the Data Protection Act 2018 principles.

There are six Data Protection principles specified within Article 5(1) of the General Data Protection Regulation (GDPR).

In this instance I have decided that the disclosure of the information would be incompatible with the first Data Protection principle which requires that personal data shall be: “processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency)”;

Under the Data Protection Act 2018, 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.

The MPS accept that there is a legitimate interest in the disclosure of the requested information, however to disclose the information we hold would be grossly unfair to those captured within the data as, at this time, the investigation is currently ongoing.

Section 40(5B)(a)(i) – Personal Information - A confirmation or denial statement in relation to question c of your request may in the circumstances imply, infer or disclose personal data relating to living individuals who are captured by the scope of your request.

Section 40 of the Act is designed to address information that is covered by the Data Protection Act 2018 (DPA). Under Section 40(5B), the MPS is not required to confirm whether information is held if that confirmation or denial could contravene any of the Data Protection Principles.

Where an individual is requesting third party personal data the MPS must ensure that any action taken adheres to the principles of the DPA and the General Data Protection Regulation 2018 (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 and under Article 5 of the GDPR.

A confirmation or denial statement in relation to whether the MPS hold information in relation to an investigation could in the circumstances:
• Constitute the disclosure of sensitive personal data.
• Breach the First Data Protection Principle which relates to the lawful and fair processing of personal data.
• Breach the right to privacy afforded to individuals under the DPA and the GDPR.

The ICO guidance titled ‘Personal information’ indicates that the following factors are relevant when assessing whether a disclosure under FOIA would be fair:
• Whether the information is sensitive personal data.
• The possible consequences of disclosure on the individual.
• The reasonable expectations of the individual, taking into account:
▪ Their expectations both at the time the information was collected and at the time of the request.
▪ The nature of the information itself.
▪ The circumstances in which the information was obtained.
▪ Whether the information has been or remains in the public domain.
▪ The FOIA principles of transparency and accountability.
• Any legitimate interests in the public having access to the information and the balance between these and the rights and freedoms of the individuals who are the data subjects.

In this instance, for the reasons outlined above, I have concluded that confirming or denying whether information is held would contravene the First Data Protection Principle, relating to the lawful and fair processing of personal data. Furthermore, in the circumstances of your request, none of the lawful bases for processing personal data as set out in Article 6 of the GDPR would be met in relation to confirming or denying whether or not the information that you have requested is held.

Due to the need for consistency when applying exemptions relating to the duty to confirm or deny, a confirmation or denial statement would also impair the ability of the MPS to protect personal data in response to similar requests which may have similar consequences for the privacy of individuals.

It is also legitimate for the MPS to consider the effect of a confirmation or denial statement in the context of requests of a similar nature that may be received by the MPS at a later date. Such a statement may disclose personal data and/or impair the ability of the MPS to protect personal data in relation to similar requests for information in the future by undermining the use of NCND exemptions. This is due to the information that would be disclosed by such a statement and/or a pattern of such statements.

Section 40 is a class based absolute exemption and there is no requirement to evidence harm or consider the public interest.

With regard to Section 40, please bear in mind that the changes brought about by the GDPR apply when considering whether the use of NCND is appropriate inasmuch as determining that confirmation or denial would be lawful and fair.

Disclosure

With regards to Qa - All communications between the Metropolitan Police Service (“MPS") and representatives of media organisations anywhere in the world, concerning the investigation of the murder of Martine Vik-Magnussen (Operation Debruce) - you have asked for all communications between the MPS and Media Organisations concerning Operation Debruce.

I can confirm that we have located 6 emails between the MPS and Media Organisations regarding Operation Debruce. These have been disclosed to you in a redacted form utilising Section 40(2) - Personal information of the Freedom of Information Act (FOIA). Please see below documents labelled ‘emails 1 to 6’.

In addition to this I can inform you that there were 3 other emails located with regards to Production Orders. These are fully exempt by virtue of the following exemptions:

Section 30(1)(a)(i) – Investigations and Proceedings conducted by public authorities.
Section 40(2)(a)(b) – Personal Information

Qb - Copies of all MPS press releases relating to Operation Debruce to date.

This information has been released in full. Please find below document named ‘Question B – copies of press lines.’

Qc - Confirmation of the following concerning all arrest warrants sought and or issued with respect to Operation Debruce:

With regards to your questions relating to warrants this notice neither confirms nor denies that it holds the information you have requested as the duty in Section 1(1)(a) of the Act (the duty to confirm or deny that information is held) does not apply by virtue of the following exemptions:

Section 30(3) - Investigations and proceedings conducted by public authorities.
Section 40(2)&(3) – Personal Information
Section 40(5B)(a)(i) - Personal Information