Surveillance technology

Request Number: FOI/14432

Category: Organisational Information – Technology and Equipment

Subject: Surveillance technology

Request and Answer:
In relation to request number FOI/14432 Police Service of Northern Ireland is providing an NCND response and will explain this further in the response below.

Request 1
Do the Police Service Of Northern Ireland (PSNI) own any StingRay/IMSI catchers or similar surveillance technology?

Request 2
Have the PSNI used StingRay/IMSI catchers to surveil persons NOT connected with terrorism offences within the last year? 

Answer
In accordance with the Act, this letter represents a Refusal Notice for this particular request. The Police Service of Northern Ireland can neither confirm nor deny that it holds the information you have requested.

Section 1 of the Freedom of Information Act 2000 (FOIA) places two duties on public authorities. Unless exemptions apply, the first duty at Section 1(1)(a) is to confirm or deny whether the information specified in the request is held. The second duty at Section 1(1)(b) is to disclose information that has been confirmed as being held.

Where exemption/s are relied upon Section 17(1) of FOIA requires that we provide the applicant with a notice which
a) states that fact,
b) specifies the exemption(s) in question and
c) states (if that would not otherwise be apparent) why the exemption applies.

The Police Service of Northern Ireland (PSNI) can Neither Confirm Nor Deny that it holds the information relevant to your request as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply by virtue of the following exemption(s):

Section 24(2) – National Security – confirmation or denial would likely prejudice safeguarding national security.

Section 30(3) – Investigations (by virtue of Section 30(2)) – confirmation or denial would likely prejudice investigations and proceedings conducted by public authorities.

Section 31(3) – Law Enforcement – confirmation or denial would likely prejudice the prevention or detection of crime and the apprehension or prosecution of offenders.

The full text of exemptions can be found at www.legislation.gov.uk and further guidance on how they operate can be located on the Information Commissioners Office website www.ico.org.uk.

‘Neither Confirm nor Deny’ (NCND)
There may be occasions when complying with the duty to confirm or deny under section 1(1)(a) would in itself disclose sensitive or potentially damaging information that falls under an exemption. In these circumstances, the Act allows a public authority to respond by refusing to confirm or deny whether it holds the requested information.

The decision to issue a ‘neither confirm nor deny’ response is not affected by whether we do or do not hold the information but relates to the consequences of confirming or denying the information is held. The starting point and main focus in most cases will be theoretical considerations about the consequences of confirming or denying that a particular type of information is held. The decision to neither confirm nor deny is separate from a decision not to disclose information and needs to be taken entirely on its own merits.

PSNI follow the Information Commissioner’s Guidance in relation to ‘NCND’ and you may find it helpful to refer to this at the following link:

https://ico.org.uk/for-organisations/guidance-index/freedom-of-information-and-environmental-information-regulations/when-to-refuse-to-confirm-or-deny-holding-information/

Section 30 is a class based qualified exemption and there is a requirement to consider the public interest to ensure neither confirming or denying information is held is appropriate.

Sections 31 and 24 are prejudice based qualified exemptions and there is a requirement to evidence the prejudice (harm) in disclosure and consider the public interest to ensure neither confirming or denying that information is held is appropriate.

Harm in Confirming or Denying that Information is Held
By confirming or denying that the PSNI holds any information regarding these techniques would in itself disclose exempt information. Stating information is held would confirm usage and the opposite if there is no such information.

Any disclosure under FOIA is a disclosure to the world at large, and confirming or denying PSNI use of specialist techniques which the PSNI may or may not deploy in specific circumstances would prejudice law enforcement. If the requested information were held by the force, confirmation of this fact would reveal that the PSNI has access to sophisticated communications analysis techniques. This would be damaging as it would (i) limit operational capabilities as criminals/terrorists would gain a greater understanding of the PSNI methods and techniques, enabling them to take steps to counter them; and (ii) provide an indication to any individual who may be undertaking criminal/terrorist activities that the (police force) may be aware of their presence and taking counter terrorist measures.

Conversely, if information were not held by the force, and a denial were issued, this would reveal to those same individuals that their activities are unlikely to have been detected by the police. It may also suggest (whether correctly or not) the limitations of force’s capabilities, which may further encourage criminal/terrorist activity by exposing a potential vulnerability. Disclosure of the information could confirm to those involved in criminality or terrorism that they are or have been the subject of such activity, allowing them to gauge the frequency of its use and to take measures to circumvent its use. Any compromise of, or reduction in technical capability by forces would substantially prejudice the ability of forces to police their areas which would lead to a greater risk to the public.

This detrimental effect is increased if the request is made to several different law enforcement bodies. In addition to the local criminal fraternity now being better informed, those intent on organised crime throughout the UK will be able to ‘map’ where the use of certain tactics are or are not deployed. This can be useful information to those committing crimes of drugs and terrorist activities.

For example, to state that no information is held in one force and then exempt information held in another, would itself provide acknowledgement that the technique has been used at that second location. This could have the likelihood of identifying location-specific operations, enabling individuals to become aware of whether their activities have been detected. This in turn could lead to them moving their operations, destroying evidence, or avoiding those areas, ultimately compromising police tactics, operations and future prosecutions.

Any information identifying the focus of policing activity could be used to the advantage of terrorists or criminal organisations. Information that undermines the operational integrity of these activities will adversely affect public safety and have a negative impact on both national security and law enforcement.

Public Interest Test
Section 24 - Factors Favouring Confirmation or Denial
The public is entitled to know where its public funds are being spent and a better informed public can take steps to protect themselves.

Section 24 - Factors Against Confirmation or Denial
By confirming or denying the use of specialist techniques by PSNI  could render security measures less effective. This could lead to the compromise of ongoing or future operations to protect the security or infra-structure of the UK and increase the risk of harm to the public

Section 30 - Factors Favouring Confirmation or Denial
The public is entitled to know what its public funds are spent on. Investigations may be closed and any proceedings may have been completed, and the investigations may have been high profile and had national implications.

Section 30 - Factors Against Confirmation or Denial
By confirming or denying the use of specialist techniques, the force’s future law enforcement capabilities would be affected and this would hinder the prevention and detection of crime.

Section 31 - Factors Favouring Confirmation or Denial
Better awareness may reduce crime or lead to more information from the public, and the public would be able to take steps to protect themselves.

Section 31 - Factors Against Confirmation or Denial
By confirming or denying whether such techniques were used by (police force) would compromise law enforcement tactics and undermine the partnership approach which would hinder the prevention or detection of crime. This would impact on police resources, more crime would then be committed and individuals placed at risk.

Decision 
The security of the country is of paramount importance and the police service will not divulge whether information is or is not held if to do so could undermine national security or compromise law enforcement. Whilst 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 the criminal fraternity, there is a very strong public interest in safeguarding both national security and the integrity of police investigations and operations in this area.

As much as there is public interest in knowing that policing activity is appropriate and balanced in matters of national security this will only be overridden in exceptional circumstances.

There is also no requirement to satisfy any public concern over the legality of police operations and the tactics we may or may not use. Forces are already held to account by statute, for example the Police and Criminal Evidence Act and the Regulation of Investigatory Powers Act and independent bodies such as Her Majesty’s Inspectorate of Constabulary, the Independent Police Complaints Commission and the Office of the Surveillance Commissioner. Our accountability is therefore not enhanced by confirming or denying whether any information is held.

Therefore it is our opinion that for these issues the decision for confirming or denying whether any information is held regarding these techniques is not made out. This argument is obviously transferable to all police tactics.

However, this should not be taken as conclusive evidence that the information you requested exists or does not exist.