11313 - Seizure of Phones
I write in connection with your request for information dated 20th September 2019 and received by this office on 23rd September 2019. Below are the questions raised in your request, and our response.
I write to request information and records under the FOIA, regarding your force’s policy and practices in relation to requesting and taking or seizing phones and digital devices from people during stop and searches, before an arrest has taken place, and subsequent access to those devices, before an arrest has taken place.
Specifically, I am asking the following:
1. Does your force ever take or seize and then access a mobile phone(s) or digital device(s) from individuals specifically during a stop and search, before an arrest has taken place? If yes, please provide:
a) Please note we have taken your request to mean phones that have been seized.
Yes, however it is not an approach we use in Cleveland, although in theory, a phone could be seized during a Stop Search, it is not common practice. Having made some tentative enquiries we have not been able to locate any such circumstances where this has happened.
i. The purpose(s) for which an officer would seize the mobile phone(s) or device(s) from an individual during a stop and search, and then access the mobile phone or digital device prior to an arrest taking place
ii. The legal basis under which you are doing this
iii. Copies of any policy or guidance in relation to this practice
a) In relation to i) ii) and iii) above Cleveland Police would rely upon;
Section 17 of the Freedom of Information Act 2000 requires Cleveland Police when refusing such information (because the information is exempt) to provide you the applicant with a notice which (a) states that fact, (b) specifies the exemption and (c) states (if it would not otherwise be apparent) why the exemption(s) applies.
Notice of Non-Disclosure:
We are not disclosing the above requested information pursuant to the exemption provisions of Section 21(1) Information Reasonably Accessible by Other Means.
Section 21, of the Act, states that information, is exempt information if it is reasonably accessible to the applicant, otherwise than under Section 1 of the Freedom of Information Act 2000.
Section 21 is an absolute exemption and where information falls within the scope of an absolute exemption, a public authority is not obliged to communicate it to an applicant and is also not obliged to comply with the duty to confirm or deny the existence of the information requested.
Therefore in accordance with the Freedom of Information Act 2000, this letter represents a Refusal Notice for this particular request.
The information requested can be accessed via the below link.
https://www.gov.uk/government/publications/pace-code-a-2015
iv. When mobile phones or digital devices are locked with a password, the manner by which you access them during a stop and search, before an individual has been placed under arrest (for example asking the individual for their password or using technical equipment to bypass the phone security).
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 a request is held. The second duty at Section 1(1) (b) is to disclose information that has been confirmed as being held. Where exemptions are relied upon s17 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
Section 31 (1) Law Enforcement. This should not be taken as an indication that the information you have requested is or is not held by Cleveland Police.
Public Interest Considerations
Section 31 – Law Enforcement
Factors favouring disclosure
The release of this information would provide an insight into the Police Service and enable the public to have a better understanding of the effectiveness of the police and providing transparency in the way the Police Service carry out their day-to-day delivery of effective law enforcement.
Factors favouring non-disclosure
Specific information relating to Stop and Search Techniques and how we access information held on phones, seized, that are locked by means of a password could be interpreted and/or manipulated to hinder law enforcement capabilities by providing a valuable asset to individuals and/or organisations wishing to commit crime. Any vulnerabilities and capabilities would be highlighted and offender’s intent on committing criminal behaviour could create a mosaic of data in relation to areas of vulnerability or non-detection.
Overall Balancing Test
Whilst there is a public interest in the transparency of policing and investigative techniques especially in relation to accessing data on locked there is a very strong public interest in safeguarding both national security and the integrity of police investigations and operations in these highly sensitive areas.
Any information identifying the focus of specific policing activity, within this FOI request, could be used to the advantage of terrorists, criminal organisations or the opportunist criminal. 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.
As much as there is public interest in knowing that policing activity is appropriate and balanced in matters of Local and/or National Security this will only be overridden in exceptional circumstances. It is our opinion that for these issues the balancing test for disclosure is not made out.
v. The technical equipment, if any, that your force is using
a) No Information held.
The Cleveland Police response to your request is unique and it should be noted that Police Forces do not use generic systems or identical procedures to capture and record data therefore responses from Cleveland Police should not be used as a comparison with any other force response you receive.