Provision of information held by Northumbria Police made under the Freedom of Information Act 2000 (the 'Act')
As you may be aware the purpose of the Act is to allow a general right of access to information held at the time of a request, by a Public Authority (including the Police), subject to certain limitations and exemptions.
You asked:
- The amount paid each year by your force to informers or covert human intelligence sources (CHIS) for each year from 2015 to the present. (To be clear, by CHIS I exclude paid law enforcement officers who are working undercover and refer only to private individuals who have received sums of money in return for information). I am happy to receive this information either by calendar year or financial year - whichever is simplest.
I would like to establish if possible the scale of these payments in terms of the sums received by individuals. On this basis, I would also like to request:
2, The average sum paid per informant/CHIS for each year from 2015 - ie the annual total paid divided by the number of informants.
3. The highest sum paid each year to a single informant/CHIS - ie the largest sum of money received by an individual in return for information.
In Response:
We have now had the opportunity to fully consider your request and I provide a response for your attention.
With regards to point 1
As the information you have requested is accessible by other means I have not provided you with a copy of the information and will rely on Section 21 of the Freedom of Information Act 2000. You should therefore consider this a refusal for your request.
I have provided an explanation to this exemption below.
Section 21 (1) - Information accessible by other means
Information which is reasonably accessible to the applicant is exempt information.
Data from 2014/15 – 2018/19 is published on the Northumbria Police Disclosure Log and is therefore in the public domain and freely available to all.
FOI 913/19 Refers. Such information is provided by full financial year only. 2019/20 data could be provided once the financial year has ended, and all such costs have been collated, should a further submission for that data be received.
In addition, Northumbria Police can neither confirm nor deny that they hold any other information relevant to this request 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) (by virtue of Section 30(2)) Investigations
Section 23 is a class based absolute exemption and there is no requirement to consider the public interest.
Section 24 is a qualified exemption and as such there is a requirement to evidence any harm confirmation or denial that any other information is held as well as consider the public interest.
Section 30 is a class based qualified exemption and there is a requirement to consider the public interest to ensure neither confirming nor denying any other information is held, is appropriate.
Harm in confirming that Information is held
Disclosure of informants data could impact on the recruitment and retention of CHIS in general, due to the perception of (rather than the actual) risk of identification. In an Information Tribunal case relating to the payments made to CHIS in Croydon (EA/2010/0006), it was accepted that this argument applied as much to CHIS providing intelligence in relation to national security concerns as to CHIS engaged in countering more traditional criminal threats. In this way, the disclosure of payment information would damage national security through discouraging current national security CHIS from co-operating with the Police Service in other geographical areas, or preventing the recruitment of national security CHIS in the future - regardless of whether the area in question actually currently runs CHIS reporting on serious crime, terrorist or other threats.
Public Interest Test - Section 24
Factors favouring confirming or denying that any other information is held
Confirming or denial that any other information exists relevant to the request would lead to a better informed public and the public are entitled to know how public funds are spent. The information simply relates to national security and disclosure would not actually harm it.
Factors against confirming or denying that any other information is held
Other organisations outside the Police Service are also widely engaged in rewarding informants in a number of ways, and therefore by confirming or denying that any other information exists relevant to the request would harm the close relationship that exists with such organisations, where trust and confidence in this specific area has been built up in the exchange of information and financial assistance during the Criminal Justice process.
To confirm or deny whether Northumbria Police hold any additional information would allow inferences to be made about the nature and extent of national security related activities which may or may not take place in a given area. This could enable terrorist groups to take steps to avoid detection, and as such, confirmation or denial would be damaging to national security.
By confirming or denying any policing arrangements of this nature would render national security measures less effective. This would 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.
Public Interest - Section 30
The Police Service is charged with enforcing the law, preventing and detecting crime and protecting the communities we serve. Confirming that information exists could promote public trust in providing transparency and demonstrating openness and accountability into how the investigation took place. It could also provide reassurance to the public that the Police Service takes all reports of a crime seriously and conducts investigations appropriately. To confirm could allow the public to have a better understanding of the effectiveness of the Police Service.
However, by its very nature information held relating to informants is sensitive in nature. Under FOI 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 harmful to informants. In some cases their mere existence can place individuals in grave danger. The only methodology which will provide the required degree of protection to those individuals is if the force takes advantage of its ability under FOI legislation to, when appropriate, not confirm or deny that the information requested is or is not held. The Police Service will never disclose information which could identify investigative activity and therefore undermine their investigations. To do so would hinder the prevention or detection of crime.
These points were agreed by the Information Tribunal in the case of ICON v Metropolitan Police, EA/2010/2006, where the request was for informant spend at borough level. Although the information in this case was subject to substantive exemptions, the key public interest balancing point, was highly persuasive.
'CHIS are given strong guarantees that their identities will be protected. In some instances, a prosecution may be stopped rather than risk the identity, or in some cases even the existence, of a CHIS being revealed. We accept the evidence of DI D as to the "paranoia" of those acting, or contemplating acting, as a CHIS and accept that they would view the disclosure of the disputed information as a breach of confidence that would significantly undermine their confidence in having their identities protected'.
Balance Test
The security of the country is of paramount importance and the police service will not divulge whether any information is or is not held pertaining to the way in which informants are managed that would lead to identification. This would lead to the safety of the individual being placed at risk, undermining national security or compromising law enforcement.
Whilst there is public interest in transparency of policing operations and providing assurance that the police service is appropriately and effectively engaging with the threat posed by various groups or individuals, there is a very strong public interest in safeguarding the integrity of police investigations and operations in the highly sensitive areas such as extremism, crime prevention, public disorder and terrorism prevention.
As much as there is a public interest in knowing that policing activity is appropriate and balanced this will only be overridden in exceptional circumstances. The areas of police interest discussed above are sensitive issues that reveal local intelligence and therefore it is our opinion that for these issues the balancing test for confirming or denying information that could lead to the identification of informants, is not made out.
While Northumbria Police will provide as much information as possible in answer to a Freedom of Information Act requests, we will not do so if investigations/law enforcement would be compromised.
2. No information held. We do not hold ‘average’ payments and are not obliged to calculate in order to offer a response to your request.
Additionally the number of CHIS informants is not considered suitable for disclosure
With regards to the remainder of your request, point 3 and the number of CHIS, this will not be disclosed and by doing so we rely on the following exemptions
Section 30(3) Investigations by virtue of Section 30(2)
Section 38(1) Health and Safety
Section 40(2) Personal Information
Section 40 is a class based absolute exemption and there is no requirement to evidence the harm or consider the public interest.
Section 30 is a class based qualified exemption and consideration of the public interest must be given as to whether withholding the information is the appropriate response.Section 38 is a prejudice based and qualified there is a requirement to articulate the harm that would be caused in release of the information to the level requested, as held as well as carrying out a public interest test.
Evidence of Harm
The public expect police forces and other law enforcement agencies to use all powers and tactics available to prevent and detect crime or disorder and maintain public safety. There are a number of covert tactics available and the use of informants (covert human intelligence sources (CHIS)) is one of them. Used correctly, in line with the Regulation of Investigatory Powers Act legislation, it is a proportionate, lawful and ethical tactic which provides an effective means of obtaining evidence and intelligence.
There is considerable harm attributed to the release of any information in relation to police receiving information from confidential sources. Such information would not exist had CHIS not been required to participate in the effective investigation of criminal matters. The information would only be held if it were obtained and recorded by the force for the purpose of its functions in relation to criminal investigations.
In this case, and irrespective of whether any information relating to this has been released, the release the number of CHIS and details of individual payment is likely to reduce the flow of information to the Police Service and intelligence agencies and would have a substantial prejudicial impact on the ability of such authorities to collect reliable and accurate intelligence. Furthermore, law enforcement bodies would become dependent on more costly and time consuming methods of collecting intelligence.
CHIS (regardless of their motivation) provide information at particular personal risk to themselves and their families. As previous cases have shown, where a CHIS is identified it can result in substantial physical harm, or mental trauma resulting from the threat of physical harm. This problem is particularly acute in cases relating to serious crime and terrorism where the threat against individuals is substantial.
The use of CHIS is regulated by the Regulation of Investigatory Powers Act 2000, Part 2, and this current version of the code reflects changes to the oversight of investigatory powers made under the Investigatory Powers Act 2016, which includes oversight by the Investigatory Powers Commissioner, which requires authorities to take into account the provisions of the Human Rights Act when using CHIS (and other covert techniques). Police forces are reminded of their obligation under Article 2 of the Human Rights Act which requires them to protect human life. This is further supported by a High Court hearing Van Colle v Chief Constable Hertfordshire Police. In this case the force concerned failed to provide adequate protection to an individual whose life was at risk because of the criminal acts of a third party. The witness was murdered by a person whom he was about to give evidence against in a criminal trial.
It may be viewed by those not involved in the management of informants that a statistical number in itself is unlikely to cause any such adverse effects. However, the subject has to be viewed more holistically.
Those determined to identify informants have the ability to use small pieces of information in order to build a more complete picture and it is the cumulative effect of information disclosures that the Police Service feel will lead to this prejudice being realised.
Public Interest Considerations
Section 30(3) Investigations
Factors favouring disclosure
Confirming individual payments would lead to a better informed public, improving their knowledge and understanding of how the Police Service utilise the use of CHIS as part of their investigative policing.
The Police Service is charged with enforcing the law, preventing and detecting crime and protecting the communities we serve. Release of this information, to this level, could promote public trust in providing transparency and demonstrating openness and accountability into how the investigation took place. It could also provide reassurance to the public that the Police Service tasks all reports of a crime seriously and conducts investigations appropriately. Release of the information could allow the public to have a better understanding of the effectiveness of the Police Service.
Factors against disclosure
However, by its very nature information held relating to informants is sensitive in nature. Release of the information to this level would disclose facts harmful to informants. In some cases their mere existence can place individuals in grave danger. The only methodology which will provide the required degree of protection to those individuals is if the force takes advantage of its ability under FOI legislation to, when appropriate, to withhold the information requested. The Police Service will never release information if in doing so could identify investigative activity and therefore undermine their investigations. To do so would hinder the prevention or detection of crime.
Section 38 Health and Safety
Factors favouring disclosure
Release of the information would provide reassurance to the general public that Northumbria Police uses tactical options with regard to the use of Covert Human Intelligence Sources as a means of acquiring intelligence. This awareness could be used to improve any public consultations; debates in relation to this subject
Factors against disclosure
Release of the information could lead to the loss of public confidence in our ability to protect the wellbeing of individuals recruited as CHIS as well as members of the community at large.
We as a force has a duty of care towards any individual who has been recruited as a CHIS. To reveal information via an FOI request which would place the safety of individuals in grave danger, is not in the public interest.
Balancing Test
The points above highlight the merits of both the release and withholding of the information pertinent to this request exists. 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 tactical options, including the use of juvenile CHIS, may or may not be utilised. The Police Service will never divulge information pertinent to this, if to do so would place the safety of an individual(s) at risk, compromise an ongoing investigation or undermine the policing purpose in the effective delivery of operational law enforcement.
Whilst there is a public interest in the transparency of policing operations and investigations, providing reassurance that the Police Service is appropriately and effectively engaging with the threat from criminals, there is a very strong public interest in safeguarding the health and safety of individuals. As much as there is a public interest in knowing that policing activity is appropriate and balanced it will only be overridden in exceptional circumstances.
Therefore, at this moment in time, it is our opinion that for these issues the balance test for withholding the information is appropriate.
