Tigers Bay Incident

Request Number: FOI/15105

Category: Policy and Procedures - Procedures

Subject: Tigers Bay Incident

Request and Answer:
In relation to request number FOI/14138 Police Service of Northern Ireland is providing an NCND response and will explain this further in the response below.

Request
Can you confirm the status of the officer involved in the incident at Tigers Bay, Belfast which was shown on video on various media outlets? Has this officer been suspended, repositioned or remains in current post/role within the service?

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 30(3) – Investigations and Proceedings
The duty to confirm or deny does not arise in relation to information which is (or if it were held would be) exempt information by virtue of subsection (1) or (2).

Section 40(5B)(a)(i) – Personal Information
The duty to confirm or deny does not arise if to do so would contravene any of the data protection principles.

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/

Exemptions Explained

Section 40(5B)(a)(i) - Personal Information
Section 40 is a Class-based exemption, therefore it is not necessary to evidence the harm caused by disclosure nor is it necessary to carry out a public interest test in this case.

The release of information under Freedom of Information (FOI) is a release into the public domain and not just to the individual requesting the information. Once information is disclosed by FOI there is no control or limits as to who or how the information is shared with other individuals, therefore a release under FOI is considered a disclosure to the world in general.

To confirm or deny that PSNI hold or do not hold information would in fact confirm information about an individual. This would amount to a release into the public domain of personal information about an individual and likely to cause distress. The individual would have no expectation that these details would be released into the public domain; therefore PSNI would breach its data protection obligations and be unfair to individuals.

Harm for NCND
The Freedom of Information Act is applicant and motive blind. Any information disclosed under the
Act is a disclosure to the world at large and would be disclosed to any individual upon request. For this reason a request under the Act cannot be a private transaction. Both the request itself, and any information which may be disclosed, are considered suitable for open publication.

To confirm or deny whether information is held in relation to this request would reveal whether the
PSNI has or is actively investigating an individual or individuals, either criminally or as part of an investigation into improper conduct. Confirmation or denial would therefore be likely to prejudice our investigative functions. Issuing confirmation or denial responses in relation to any investigations that seek to detect crime or misconduct, except for those that have already been publicly confirmed, could prejudice our evidence gathering functions and therefore could hinder any potential investigations.

Public Interest Test
Factors Favouring Confirmation or Denial - Section 30
Confirming or denying whether information exists relevant to this request would lead to a better informed general public by identifying that the PSNI robustly investigate allegations, including those made against their own officers. This fact alone may encourage individuals to provide intelligence in order to assist with investigations and promote public trust in providing transparency and demonstrating openness and accountability into where the police are currently focusing their investigations.

Factors Against Confirmation or Denial - Section 30
Confirmation or denial that information is held would suggest PSNI take their responsibility to appropriately handle and manage information supplied to them flippantly.

Under FOIA, there is a requirement to comply with Section 1(1)(a) and confirm what information is held. In some cases it is that confirmation, or not, which could disclose facts and undermine the investigative process. In such cases, PSNI takes advantage of its ability under FOIA legislation to, where appropriate, neither confirm nor deny that information is or is not held.

Irrespective of what information is or is not held regarding this case, any information which could be used to undermine investigations and potentially hinder the detection of crime or misconduct, is not in the public interest.

Decision
The PSNI is committed to demonstrating openness and accountability, however, the benefits that would result from issuing a confirmation or denial do not outweigh the considerations favouring the neither confirm nor deny response. This is namely because of the impact it could have on the ability of the PSNI to fulfil our ability to conduct any potential investigations, either now or in the future.

Whilst there is a public interest in the transparency of policing procedures and investigations particularly in relation to the PSNI own police officers, there is a very strong public interest in protecting our investigative functions and procedures.

The Public Interest therefore must favour neither confirming nor denying that the requested information is held.

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