Reference No: 126/2015
Request Date: 24/11/2015
Under the terms of the Freedom of Information Act 2000, please provide me with full answers to each of the following questions:
Freedom of Information Act 2000
The Freedom of Information Act 2000 creates a statutory right of access to information held by public authorities. A public authority in receipt of a request must, if permitted, state under Section 1(a) of the Act, whether it holds the requested information and, if held, then communicate that information to the applicant under Section 1(b) of the Act.
The right of access to information is not without exception and is subject to a number of exemptions which are designed to enable public authorities to withhold information that is unsuitable for release.
Importantly the Act is designed to place information into the public domain, that is, once access to information is granted to one person under the Act, it is then considered public information and must be communicated to any individual should a request be received.
This letter serves as a Refusal Notice under Section 17 of the Freedom of Information Act 2000.
Section 17 of the Act provides:
In relation to your request for details regarding the capability to respond to Marauding Terrorist Firearms Attacks, Staffordshire Fire & Rescue Service can Neither Confirm Nor Deny (NCND) whether the information requested is held as the duty in Section 1(1)(a) of the Freedom of Information Act 2000 does not apply by virtue of the following exemptions:
Additional Statement from the Chief Fire Officers Association
Although, as described above, the decision has been taken to Neither Confirm Nor Deny that the specific information is held by Staffordshire Fire & Rescue Service, the Chief Fire Officers Association (CFOA) Lead Officer for this type of incident is able to confirm the following:
“A number of UK Fire & Rescue Services (FRS) have been asked to provide and train resources to enable the FRS to support the multi-agency response should such an attack occur on our shores. We have worked closely with other responder agencies to develop a way of working, and continue to evolve our capability and increase its effectiveness. The FRS has received central government funding to support the provision of appropriate equipment and suitable training and exercising.”
The Neither Confirm Nor Deny Exemptions
Returning to the requirements of FOIA, S24, S31 and S38 are both qualified and prejudice based so I am required to articulate the harm and public interest in relation to confirmation or denial.
Harm in confirming or denying that further information is held
Disclosures under the Freedom of Information Act are disclosures to the world not just the individual making the request. In some situations, simply confirming or denying whether the Authority holds a particular category of information could itself disclose sensitive and damaging information. The principle of NCND is long established and is needed to protect harm which may arise if the Authority has to confirm or deny whether they hold particular information. In such circumstances the confirming or denying of the existence of information can itself communicate sensitive and potentially damaging information. On this occasion, confirmation of whether any further information is held or not, would have the effect of undermining this particular activity and could impact on National Security, as it could lead to individuals becoming aware of capabilities in this respect both locally and nationally, and could ultimately compromise response tactics, operations and future decision making. This should not be taken as an indication that such information is or is not held.
To aid understanding of the Duty to Confirm or Deny I believe that it may be helpful to explain some of the issues arising from the duty under the Freedom of Information Act to confirm or deny.
The Information Commissioner’s Office (ICO) guidance titled ‘When to refuse to confirm or deny information is held’ states:
‘In certain circumstances, even confirming or denying that requested information is held can reveal information that falls under an exemption. A public authority may be able to use an exemption to refuse to confirm whether or not it holds information, if either confirming or denying would reveal exempt information in itself. A neither confirm nor deny response is more likely to be needed for very specific requests than for more general or wide ranging requests. It can be important to use a neither confirm nor deny response consistently, every time a certain type of information is requested, regardless of whether the information is actually held or not. For this reason public authorities need to be alert to the possibility of receiving future requests for the same type of information when handling very specific or detailed requests.’
As has been explained the consistent application of neither confirm nor deny to requests under FOI is sometimes needed to protect the response capabilities of the Fire and Rescue Service and its partner agencies. An inconsistent response to identical or similar queries over a period of time may indicate that information is held or allows such inferences to be made which in this scenario would be harmful.
Evidence of Harm - Sections 24, 31 and 38
To confirm or deny each individual Fire and Rescue Service’s capability to respond to Marauding Terrorist Firearms Attacks would enable those engaged in criminal activity or any form of terrorism or domestic extremism to formulate a national picture and identify any vulnerability that could be exploited and would prejudice national security.
The national security exemption is based on the effect that disclosure would have, not on the content or source of the information.
As you may be aware, disclosure under FOIA is a release to the public at large. Whilst not questioning the motives of the applicant, releasing any information held regarding the planning for firearms or weapons attacks, would show criminals what the capacity, tactical abilities and capabilities of the fire and rescue service are, allowing them to target specific areas of the UK to conduct their criminal/terrorist activities. Releasing planning information for specific circumstances, would lead to an increase in harm of attacks and compromise law enforcement. This would be to the detriment of providing an efficient emergency response service and a failure in providing a duty of care to all members of the public.
The threat from terrorism cannot be ignored. It is generally recognised that the international security landscape is increasingly complex and unpredictable. Since 2006, the UK Government have published the threat level, based upon current intelligence and that threat has remained at the second highest level, ‘severe’, except for two short periods during August 2006 and June and July 2007, when it was raised to the highest threat, ‘critical’, and in July 2009, when it was reduced to ‘substantial’. Nevertheless, the UK continues to face a sustained threat from violent extremists and terrorists and the current UK threat level is set at ‘severe’. The recent attacks in Paris, together with the related security activity in Belgium only serve to emphasise the reality of such threats.
The disclosure of local and national information would limit operational capabilities as criminals/terrorists would gain a greater understanding of the emergency service’s capacity, methods and techniques, enabling them to take steps to counter them. It may also suggest the limitations of capabilities in this area, which may further encourage terrorist activity by exposing potential vulnerabilities. This detrimental effect is increased if the request is made to several different emergency services and law enforcement agencies. 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 or where levels of capability exist. This can be useful information to those intent on committing crimes. It would have the likelihood of identifying location-specific operations which would ultimately compromise response tactics and operations as individuals with malicious intent could counteract the measures used against them.
Any information identifying the focus of emergency response activity could be used to the advantage of terrorists and/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.
Section 24(2) of the FoIA states '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.'
The exemption is based on the effect that disclosure would have, not on the content or source of the information.
ICO guidance emphasises there is no definition of national security and refers to an Information Tribunal Decision (EA/2006/0045) that noted the following:
The refusal to confirm or deny is required for the purposes of safeguarding national security. As mentioned above, whilst national security is not defined under the Freedom of Information Act, it does include the security of the United Kingdom and its people.
Public Interest Considerations – Section 24
Factors Against Neither Confirming Nor Denying – Section 24
The public are entitled to know how public funds are spent. Any confirmation or denial that Staffordshire Fire & Rescue Service holds such information would allow the public to gauge the appropriate use of public funds in carrying out their national security obligations. In addition, it would provide appropriate transparency and reassurance regarding the level of capability in Staffordshire.
This may also enhance public confidence in the fire and rescue service. This in turn would add to the accuracy of public awareness and debate whilst providing an insight into the service and enable the public to have a better understanding of effectiveness of the fire and rescue service and the use of public resources. It would inform other issues that are currently the subject of public debate in relation to response capabilities and improve the quality and accuracy of public debate, which may otherwise be steeped in rumour and speculation.
Factors Favouring Neither Confirming Nor Denying – Section 24
The strongest reason favouring confirming or denying whether information is held is the consideration of public funds. The strongest reason favouring neither confirming nor denying whether information is held is the need to ensure that national security is not placed at risk by enabling those with criminal intent the opportunity to gain an operational advantage over the Fire and Rescue Service in respect of disclosing details regarding capability to respond to specific incidents. On balance, I find there is a much stronger public interest in neither confirming nor denying whether the requested information is held.
Section 31(3) states ‘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)’
The term ‘law enforcement’ should be interpreted broadly. In the case of William Thomas Stevenson v the Information Commissioner and North Lancashire Teaching Primary Care Trust the Upper Tribunal commented that “it is plain from reading the activities listed in s.31(1) and the purposes specified in s.31(2), that they include activities and purposes which go beyond actual law enforcement in the sense of taking civil or criminal or regulatory proceedings. They include a wide variety of activities which can be regarded as in aid of or related to the enforcement of (i) the criminal law, (ii) any regulatory regime established by statute, (iii) professional and other disciplinary codes, (iv) standards of fitness and competence for acting as a company director or other manager of a corporate body (v) aspects of law relating to charities and their property and (vi) standards of health and safety at work” (paragraph 75).
Factors Against Neither Confirming Nor Denying - Section 31
Confirming or denying if information is held relating to the planning of terrorist attacks would provide an insight into the Fire and Rescue Service’s actions and enable the public to have a better understanding of the effectiveness of the emergency services.
It would show how public funds are being spent in relation to protection against terrorism and other criminal activity.
Some information is already in the public domain regarding the planning of major incidents/attacks and providing further information would ensure transparency and accountability and enable the public to see what capability the Fire and Rescue Service has to tackle/assist in terrorism attacks.
Factors Favouring Neither Confirming Nor Denying - Section 31
It has been recorded that FOIA releases are monitored by criminals and terrorists and so releasing information held regarding the planning and operations of terrorist attacks and tactics would undermined and compromise law enforcement and it would also hinder any local, regional or national operations.
It can be argued that there are significant risks associated with providing information in relation to any aspects of terrorism planning and that any nation's security arrangements, by releasing the information, may reveal the relative vulnerability of what we may be trying to protect.
Staffordshire Fire & Rescue Service would not wish to reveal information that would undermine any law enforcement operations and would impact on emergency response resources, as more crime would be committed because terrorists would know which areas had less capability, capacity or interest and individuals would therefore be placed at a greater risk. A fear of crime would be realised because if the terrorists identified more vulnerable areas, they would target and exploit these areas and the public would be in fear of more terrorist or criminal activity occurring. This may lead to the emergency services needing to increase their resources to reassure and protect the community.
Section 38(1) Health and Safety
Section 38(1) states information is exempt information if its disclosure under this act would, or would be likely to -
(a) endanger the physical or mental health of any individual, or
(b) endanger the safety of any individual
Evidence of Harm - Section 38
To confirm or deny whether the requested information is held could lead to attacks being carried out locally or nationally, is likely to involve criminal acts and threaten the safety of FRS staff, partner agencies and members of the public.
Public Interest Considerations - Section 38
Factors Against Neither Confirming Nor Denying – Section 38
Confirming or denying whether this information is held would lead to better informed public awareness and debate.
Factors Favouring Neither Confirming Nor Denying – Section 38
To confirm or deny the existence of this information would endanger the health and safety of any residents or visitors to the county and would undermine Staffordshire Fire & Rescue Services ability to protect the safety and well-being of the community.
Balance Test - Sections 24, 31 and 38
Whilst there is a public interest in the transparency of the use of public funds and the accountability of the Service, there is also a strong public interest in maintaining confidence in Staffordshire Fire & Rescue Service with regard to national security, law enforcement and protecting the safety and well-being of citizens both locally and nationally.
Irrespective of whether information is or is not held, public safety and the ability to deliver effective emergency response provision and assisting with law enforcement is also of paramount importance to the Fire and Rescue Service. Confirmation or denial of whether information is held would undoubtedly compromise both national security and undermine law enforcement and public safety processes. Therefore, it is our opinion that for these reasons the balancing test for not confirming whether or not any information is held by Staffordshire Fire & Rescue Service is upheld. However, this should not be taken as conclusive evidence that the information you requested exists or does not exist.