FOI 0872-2024/25- Investigatory Powers Tribunal

Request:

I am writing to you regarding recent revelations from the Investigatory Powers Tribunal (IPT) concerning the misuse of surveillance powers by the Police Service of Northern Ireland (PSNI).

The Tribunal's findings, which exposed unlawful surveillance of journalists and lawyers, are deeply troubling and raise significant concerns about the abuse of investigatory powers by law enforcement.

On 5 June 2024, the Northern Ireland Policing Board published a report showing the PSNI had admitted that over the past 14 years, it had applied for the phone records of more than 320 Northern Ireland journalists and 500 lawyers.

Given the gravity of these revelations, I would like to request information regarding your force's practices in this area. Specifically, I would ask that you provide:

Q1. A comprehensive list of any journalists and lawyers subjected to surveillance by your police force between 2010 and 2024, but if there are appropriate reasons for withholding the names, then at least the number of targets of such surveillance carried out.

Q2. Details of the circumstances and authorisations under which such surveillance was conducted.

This request is made in the interest of transparency and public accountability, principles that are foundational to maintaining public trust in policing.

If your force has not engaged in such practices, I would appreciate written confirmation to that effect.

Response: 

Decision

North Yorkshire Police can neither confirm nor deny whether it holds the information that you requested 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(5) – Information supplied by, or concerning, certain security bodies

Section 24(2) - National Security
Section 30(3) - Investigations
Section 31(3) - Law Enforcement
Section 40(5) - Personal Information

Sections 23 and 40 are absolute exemptions which means that legislators have identified that harm would be caused by any release, including a confirmation or denial that information is held. In addition there is no requirement to consider the public interest test.

Section 30 is a class based qualified exemption which means the public interest must be considered.

Sections 24 and 31 are prejudiced based qualified exemptions, and there is a requirement to evidence harm in confirming or denying information is held and also consider the public interest.

Evidence of harm: s24(2) and s31(3)

Every effort should be made to release information under Freedom of Information. However, to confirm or deny policing actions in relation to surveillance, would undermine ongoing investigations, reveal policing techniques, risk the identification of individuals and undermine National Security.

Irrespective of whether information is or isn’t held, to confirm or deny whether the police have undertaken surveillance of journalists and lawyers would compromise police intelligence and covert operations and investigations, some of which may be ongoing, and undermine the effective delivery of operational law enforcement by revealing tactical capability of the force.

The Police Service would never divulge information regarding whether or not specific tactical options are or are not used against defined areas of interest, such as journalistic/lawyer sources. To do so would undermine both tactical and investigative processes. These processes should be protected to the utmost degree, in line with relevant legislation.

By merely citing an exemption (confirming information is held relative to this request) or stating ‘no information held’ would reveal whether or not these tactics have or have not been used and would be inappropriate as it would reveal police ‘intelligence’ about the activity of complex covert police investigations, including those which may be ongoing.

The prevention and detection of crime is the foundation upon which policing is built. The Police Service has a clear responsibility to prevent crime and arrest those responsible for crime or those that plan to commit crime. By confirming whether or not any information is held relevant to this request could directly undermine the effective delivery of operational law enforcement.

The threat from terrorism cannot be ignored. It is generally recognised that the international security landscape is increasingly complex and unpredictable. The current UK threat level from international terrorism, based on intelligence, is ‘substantial’, which means that a terrorist attack is likely, see below link:

https://www.mi5.gov.uk/threat-levels

In order to counter criminal and terrorist behaviour it is vital that the police have the ability to work together, where necessary covertly, to obtain intelligence within current legislative frameworks to assist in the investigative process and ensure the successful arrest and prosecution of offenders who commit or plan to commit criminal acts, including terrorism.

Therefore, to confirm or deny whether the force holds information relevant to this case would be useful to those involved in criminal activities and also terrorists as it would enable them to identify which specific police forces have utilised tactical options in respect of obtaining information and intelligence via surveillance of specific sources in pursuit of protecting national security.

Any disclosure, no matter how generic, which may assist a criminal, terrorist or terrorist organisation will adversely affect public safety.

Public Interest Considerations

Section 24(2) National Security

Factors favouring complying with Section 1(1)(a) confirming that information is held

The public are entitled to know how public funds are spent and resources distributed within an area of policing. To confirm whether information exists relating to a specific type of tactical option would enable the general public to hold the police to account where these tactics are utilised.

Factors against complying with Section 1(1)(a) confirming or denying that any information is held

As evidenced within the harm, to confirm detail of surveillance tactics that may or may not have taken place against specified individuals would highlight to campaigners, terrorists and individuals intent on carrying out criminal behaviour, policing tactical activity. This would ultimately increase the risk of harm to the general public and significantly undermine any ongoing or future operations to protect the security or infrastructure of the United Kingdom.

Taking into account the current security climate within the United Kingdom, no information (such as the citing of an exemption which confirms information pertinent to this request is held, or conversely, stating ‘no information is held’) which may aid a terrorist should be disclosed. To what extent this information may aid a terrorist is unknown, but it is clear that it will have an impact on a force’s ability to monitor terrorist activity.

Irrespective of what information is or isn’t held, the public entrust the Police Service to make appropriate decisions with regard to their safety and protection and the only way of reducing risk is to be cautious with what is placed into the public domain.

The cumulative effect of terrorists gathering information from various sources would be even more impactful when linked to other information gathered from various sources. The more information disclosed over time will give a more detailed account of the tactical infrastructure of not only a force but also a country as a whole which would render national security measures less effective and increase the risk of harm to the public.

Any incident that results from such a disclosure would by default affect National Security.

Section 30(3) Investigations

Factors favouring complying with Section 1(1)(a) confirming that information is held

Confirming or denying whether information exists relevant to this request would lead to a better informed general public identifying that the police robustly investigate offences which may encourage individuals to provide intelligence in order to assist with investigations and reduce crime. This would further promote public trust in providing transparency and demonstrating openness and accountability into where the police are currently focusing their investigations. The public are entitled to know how public funds are spent, particularly in the current economic climate.

The issue of privacy is a highly emotive subject area often attracting high profile media. Confirming or denying that information exists could provide reassurance to the general public.

Factors against complying with Section 1(1)(a) neither confirming nor denying that information exists

Modern-day policing is intelligence led and the police share information with other law enforcement agencies as part of their investigative processes. To confirm or not whether specific tactical options or covert intelligence gathering techniques have or have not been used by the police could hinder the prevention and detection of crime as well as undermine the partnership approach to investigations and law enforcement. Should offenders take evasive action to avoid detection police resources may well be diverted from frontline duties and other areas of policing to locate and apprehend these individuals. In addition, the safety of individuals and victims would be compromised.

Section 31(3) Law Enforcement

Factors favouring complying with Section 1(1)(a) to confirm or deny that information is held

There is some information within the public domain relating to surveillance such as communications data and journalistic sources, and that in itself is considered to be a factor favouring disclosure.

Factors against complying with Section 1(1)(a) neither confirming nor denying that information exists

Confirming whether or not information is held in this case would compromise the basic purpose and reasoning of employing tactics in this matter. Public safety is of paramount importance and if offenders from specific occupational sources are provided with information that would confirm or deny that they are actively being investigated, the net result would be to encourage offenders to take further measures intended to undermine law enforcement and thereby compromising public safety.

Balancing Test

The points above highlight the merits of confirming or denying whether information pertinent to this request exists. The security of the country is of paramount importance and the Police Service is charged with enforcing the law, preventing and detecting crime and protecting the communities we serve. As part of that policing purpose, various policing tactics, covert or otherwise, may or may not be used. The Police Service will not divulge whether any information is or is not held if to do so would place the safety of an individual at risk or undermine National Security.

Whilst there is a public interest in the transparency of policing operations and investigations and providing assurance that the Police Service is appropriately and effectively engaging with the threat from criminals, there is a very strong public interest in safeguarding both National Security and the integrity of covert policing tactics and investigations. As much as there is public interest in knowing that policing activity is appropriate and balanced, this will be overridden in exceptional circumstances. In addition any disclosure that places the security of the country or integrity of operational policing at risk, no matter how generic, would undermine any trust or confidence individuals have in the police.

Therefore, at this moment in time, it is our opinion that for these issues the balance test favours neither confirming nor denying that information exists.

No inference can be drawn from this refusal that information is or isn’t held.

Please note that systems used for recording information are not generic, nor are the procedures used locally in capturing the data.  It should be noted therefore that this force’s response to your questions should not be used for comparison purposes with any other responses you may receive.