Police watchdog claims that disclosing dates of inspections will inhibit its ability to function

Screenshot 2021-10-10 at 13.27.59

On 12th September, 2021, an information access request was made to Her Majesty’s Inspectorate of Police, Fire and Rescue Services. It was headlined ‘Planned HMICFRS inspections at Greater Manchester Police’.

The text of the request was plainly expressed:

Please disclose, by way of the Freedom of Information Act (FOIA), the following:

(i) the dates and the nature of the inspections planned to take place, or have taken place, at Greater Manchester Police (GMP) in the period 1st July, 2021 and 30th June, 2022

(ii) Please disclose any correspondence between HMICFRS and either the Mayor of Greater Manchester, his Deputy or his Deputy Director of Policing, or the Chief Constable of GMP, relating to such inspections.

Although such requests are required to be treated by public authorities, and policing bodies, as applicant and motive blind, with entirely neutral responses, that is not always the case with investigative journalists. Particularly this one, writes Neil Wilby.

Much has been written elsewhere on this website, most notably a very widely shared and read piece that was headlined ‘Catalogue of policing scandals that shame the two faced Mayor of Manchester‘ (read in full here), regarding the misdemeanours of very senior officers in GMP and the campaigning that, ultimately, played a part in that force being placed in ‘Special Measures’ by the Home Office on 19th December, 2020.

All that was not lost on HMICFRS, whose inspection report, which found that over 80,000 crimes had not been recorded by GMP in the previous 12 months, up to June 2020, was given as the official reason for the Home Secretary’s emergency action.

Disgraced chief constable, Ian Hopkins, who had consistently downplayed, or even lied on occasions, about his force’s many serious failings, left soon afterwards in a move described at the time as ‘early retirement’.

He was, very arguably, the worst chief constable ever to serve Greater Manchester or its predecessor force, Manchester City Police. Or, indeed, the entire police service.

It later emerged that Hopkins had been asked to leave by the Mayor of Greater Manchester, Andy Burnham. In effect, to save his own skin. The reality being that they should both have resigned, on the spot, once the scale of the force’s failings began to unravel.

A new chief constable, Stephen Watson, took over the running of GMP in May 2021. The sixth police force with whom he has served. Some argue that the inherent failings have actually worsened since he arrived as GMP staggers from crisis to crisis on a near weekly basis.

That situation may, of course, be down to trajectory and it is early days yet. But the signs are not promising; morale amongst officers, that was already near rock bottom under the Hopkins regime, is now said by serving officers and retired whistleblowers to be at its lowest point ever.

It is trite that public interest in the force’s dire performance – and the remedies proposed by the new chief constable in his improvement plan – remains high. HMICFRS, and its inspections, planned or otherwise, has a significant role to play in that.

Not least, because time and again, year after year, those HMIC (later to become HMICFRS) inspections at GMP found failings – some of them very serious – and nothing, apart from covering them up more deeply, was ever done about it. CC Hopkins was allowed to remain in post, and surround himself with low performing sycophants, who presented no challenge to either his poor leadership or lack of any identifiable policing priorities, beyond relentlessly pushing a diversity agenda ahead of recording, investigating and detecting crime.

The information request made to HMICFRS forms part of a wider journalistic investigation into the cause and effect of a regional police falling into such disarray that, earlier this month, it was downgraded to representing a risk to the public, rather than its core function of keeping that same public safe from harm and protecting its property.

In all those circumstances, the first response to that information access request is troubling. Not least because it was delivered at 4.50pm on the last of the 20 working days allowed by law for response. The delay appears deliberate and calculated to vex and annoy an inquisitive journalist. Behaviour strongly associated with the now departed Ian Hopkins:

The first response of HMICFRS – the ‘cover-up’ begins

The HMICFRS response is reproduced verbatim, including the curious paragraph numbering and its syntax and spelling errors. It does not inspire confidence in a ‘watchdog’, trusted by Her Majesty the Queen no less, with holding police forces to account. Neither does the fact that the access request was made via a post on the iconic What Do They Know website and not, as they state, by email:

“Thank you for your email of 12 September 2021, in which you ask for information held by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS)
relating to planned inspections at Greater Manchester Police (GMP).

“2.
Your request has been handled as a request for information under the Freedom of
Information Act 2000 (FOI Act). Your request was in the fol owing terms:

(i) the dates and the nature of the inspections planned to take place, or have taken place,
at Greater Manchester Police in the period 1st July, 2021 and 30th June, 2022

(i ) Please disclose any correspondence between HMICFRS and either the Mayor of
Greater Manchester, his Deputy or his Deputy Director of Policing, or the Chief Constable of Greater Manchester Police, relating to such inspections.

“3.
I can confirm that HMICFRS holds information in scope of your request. This
information is currently being considered under section 33 of the FOI Act, the exemption for information on public audit functions, and section 36 of the FOI Act, the exemption for information that, if disclosed, may prejudice the effective conduct of public affairs.

“4.
Both sections 33 and 36 are qualified exemptions and require a public interest test
to be conducted. The FOI Act al ows us to extend the timeframe for response by a further 20 working days to consider the public interest test fully. We are stil considering the public interest test and wil aim to provide you with a ful response by 5 November 2021.

“5.
If you are dissatisfied with this response you may request an internal review of the
handling of your request by submitting a complaint within two months to
xxxxxxxxxx@xxxxxxx.xxx.xx, quoting reference FOI 2021-40 and stating why you are
dissatisfied with the response. The internal review wil be reassessed by staff who were
not involved in providing you with this response.

“6. If you remain dissatisfied after this internal review, you then have the right of
complaint to the Information Commissioner.

The right to an internal review is embodied within section 45 of the Act and at paragraphs 77 to 86 of the Information Commissioner’s Guidance on the subject (read here). Many public authorities, including police forces such as GMP, allow three months to complain about the response to the request. HMICFRS allow only two months, as set out as part of their Publication Scheme found on their website at this link.

Curiously, that same HMICFRS scheme is silent on the time allowed for response to an access request, under both the Act and the College of Policing’s Authorised Professional Practice (read here).

The first internal review request – the ‘cover-up’ unwrapped

This is the full text of the internal review request posted by Neil Wilby on the What Do They Know website on 10th October, 2021:

“Please pass this on to the person who conducts Freedom of Information reviews.

“I am writing to request an internal review of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services’s handling of my FOI request ‘Planned HMICFRS inspections at Greater Manchester Police’.

“Firstly, may I respectfully submit that the HMICFRS response dated 8th October, 2021 is so poorly conceived and executed that it undermines public trust and confidence.

“I have articulated those views in an article published contemporaneously with this internal review request. Fellow What Do They Know users and readers can view it this weblink [which is, of course, a link to this article]:

“They may find it useful when either formulating access requests to other police forces or policing bodies or crafting their own internal review requests.

“The specific grounds for complaint are as follows:

“1. It is trite that the instant access request was plainly expressed, placing very little, if any, burden on HMICFRS resources and could be answered by a competent, experienced information rights practitioner, including carrying out any necessary public interest test, in less than two hours (a generous estimate on any independent view).

“2. It is also noteworthy in the context of this internal review request that previous interactions between HMICFRS and this applicant have been fraught with tension. Created almost entirely by the former. The appearance being that HMICFRS fiercely resents any form of public or fourth estate scrutiny from this quarter.

“3. Both the Freedom of Information Act (the Act) and the College of Policing’s Authorised Professional Practice (APP) very clearly state that responses to access requests should be made PROMPTLY. The Information Commissioner’s Guidance states that the 20 working day limit set out at section 10 of the Act is to be regarded as a backstop, not a target date. Accordingly, given that the response was received at 4.50pm on the 20th working day, completely absent of explanation as to why there had been any delay, places HMICFRS in breach of section 10 and section 17 of the Act. Indeed, as set out in the article referred to above, it is respectfully submitted that this was a calculated action designed only to vex and annoy an inquisitive journalist.

“4. HMICFRS has relied on two qualified exemptions, both requiring a public interest test (PIT) to be applied in order, it seems, to stall finalisation of the request. I will deal with each in turn:

“Section 33 – Audit functions

“This section of FOIA is in three parts. HMICFRS have not specified upon which of those three sections they now rely.

“However, this exemption cannot, conceivably, apply to the request for dates of either inspections that have already taken place or are planned. These should have been disclosed, by now.

“It is also misconceived if it is sought to apply this exemption to the correspondence sought for disclosure between the Greater Manchester Mayor and HMICFRS.

“The ICO Guidance is clear on this point:

Click to access public-audit-functions-s33-foi-guidance.pdf

“The Mayor’s office is not a body subject to audit by HMICFRS. This exemption can, therefore, only apply to correspondence with the Chief Constable of GMP. It is disappointing that this was not made clear in the first response to the request.

“In all the specific circumstances of this request, the present parlous state of GMP, the failed role of HMICFRS in the four year period leading up to the belated imposition of Special Measures, would, it is respectfully submitted, more likely than not persuade an independent arbiter that the public interest lies very firmly in disclosure of such correspondence, redacted if and where any operational or personnel issues are discussed. Moreover, the burden of proving prejudice rests firmly with HMICFRS. This involves, as a minimum, several steps:
– Identify the applicable interests within the relevant exemption
– Identify the nature of the prejudice.
– Show that the prejudice claimed is real, actual or of substance; and
– Show that there is a causal link between the disclosure and the prejudice claimed.

“Section 36 – Prejudice to the effective conduct of public affairs

“This section of FOIA is in four parts. HMICFRS have not specified upon which of those four sections they now rely.

“For the benefit of What Do They Know users and, of course, its large public following, a link to the relevant ICO Guidance is provided below. It is heavy going for all but committed information rights practitioners and ‘nerds’ (in the fondest sense).

Click to access section_36_prejudice_to_effective_conduct_of_public_affairs.pdf

“As with the Section 33 exemption sought to be applied by HMICFRS, it cannot conceivably apply to dates of inspections. Accordingly, section 36 is presumed to be believed applicable by HMICFRS to the correspondence sought for disclosure. This exemption, in the experience of this journalist, is used as a ‘sweeper’ when all other means of frustrating disclosure have, or may be, exhausted.

“But, in this particular case, it appears, in my respectful submission that it is misconceived for a more compelling reason: According to the latest list published by the Ministry of Justice that HMICFRS does not have a ‘Qualified Person’ as designated by the Act:

https://webarchive.nationalarchives.gov.uk/ukgwa/20090608182148/http://www.foi.gov.uk/guidance/exguide/sec36/annex-d.htm#h

“Furthermore, there is no indication of the existence of a ‘Qualified Person’, or whom that might be, as apart of HMICFRS Publication Scheme on their own website.

“In Salmon v Information Commissioner and King’s College Cambridge (EA/2007/0135, 17 July 2008) the Information Tribunal found that section 36 was not engaged because no officer or employee of the College had been authorised as the qualified person at the time of the request.

“5. Conclusion – HMICFRS is, in the light of the foregoing, most respectfully urged to (i) disclose the requested dates without further delay (ii) disclose the requested correspondence between HMICFRS and the Greater Manchester Mayor (iii) apply the section 33 public interest test without further delay in respect of the correspondence between HMICFRS and the GMP chief constable”.

It was noted here, at the time of submission of the internal review request, “it will be more than interesting to see how long the criminal justice ‘watchdog’ takes to respond – and how”.

The second response of HMICFRS – battening down the hatches

In the event, the response came much quicker than expected, but repeated the 4.50pm on a Friday habit. This is what they had to say in response to the internal review request. By the look of it, after a good lunch with a couple of glasses of wine. Alternatively, it was, perhaps, a continuation of a campaign to vex, annoy and harass a journalist pursuing his (or her) vocation. A regular tactic of policing bodies (with the notable exception of the Independent Office for Police Conduct) and police forces (most notably the three Yorkshire forces and GMP) when dealing with information access requests:

(The same mistake is made regarding to a response by email, rather than the What Do They Know website and the peculiar paragraph numbering is also present).

“Thank you for your email of 10th October 2021, in which you ask for an internal review of the HMICFRS response dated 8th October 2021

“2.
Your request was in the following terms:

I am writing to request an internal review of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services’s handling of my FOI request ‘Planned HMICFRS inspections at Greater Manchester Police’.

“3.
The response provided on 8 October 2021 was a public interest test (PIT) extension to your original request. It confirmed that information in scope of your request is held but it is currently being considered under section 33 of the FOI Act, the exemption for information on public audit functions, and section 36 of the FOI Act, the exemption for information that, if disclosed, may prejudice the effective conduct of public affairs.

“4.
As the original request is ongoing and in time, we do not think there is a legitimate reason for the public interest test extension response to be reviewed. The final response will provide full explanation and details of the exemptions and arguments for and against disclosure as required in a public interest test. In the meantime, to assist as much as possible, I will clarify the current position of the request.

“5.
I can confirm that only some of the information is being considered under these
exemptions, this should have been made clear within the PIT extension. Our practice is to respond to requests in full rather than in part as this reduces any confusion if requests move to the appeal stage.

“6.
Section 33(1)(b) applies to any public authority which has functions in relation to the
examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions. The information in scope is being considered under section 33(2) because disclosure would, or would be likely to, prejudice the exercise of our functions as set out in the first part of the exemption.

“7.
Section 36(2)(c) applies to information where disclosure would otherwise prejudice, or
would be likely otherwise to prejudice, the effective conduct of public affairs.

“8.
For both exemptions the public interest test will weigh up the arguments for and against disclosure. A decision has yet to be made as to whether the balance of these tests will fall in favour of disclosure or not. The additional time will allow us to consider these tests fully. The final response will explain your rights of appeal.

9.
The FOI Act allows 20 working days for requests to be responded to, and requests can be extended by an additional 20 working days if further time is required to consider the public interest test of qualified exemptions. Whilst we aim to respond to all requests as quickly as possible and within the original 20 working day time frame, this is not always possible where requests may have sensitive information in scope. We must ensure that handle our information correctly and respond to request accurately and in line with the FOI Act, and sometimes this may take longer than anticipated.

10.
Finally, please be assured all requests are handled on a case by case basis and are
considered on an applicant blind basis as required by the FOI Act.

11.
I hope this information has proved useful and clarified the questions you have raised. As indicated in the letter of 8th October 2021 we aim to provide a full response by 5 November 2021.
We appreciate your patience with the extension to your request”.

An independent observer might conclude that it would have taken less time to carry out the public interest test, if indeed one is needed, bearing in mind the submissions made in the first internal review request. The eleven paragraph letter made no realistic attempt to comply with either the Act or appropriate Guidance. But it did make a mealy mouthed admission that their first response to the information request was wrong in law.

The second internal review request – ‘who inspects the inspectors’

So, it was then necessary to waste another three hours attempting to explain, in simple terms, how the rest of that first response might, similarly, be found to be wrong:

“I am writing to request a further internal review of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services’s handling of my FOI request ‘Planned HMICFRS inspections at Greater Manchester Police’.

“The grounds of complaint are as follows:

“1. In all my years as a newspaper publisher/journalist/information rights practitioner, the response to the first internal review request, sent to me yesterday afternoon (15th October) by HMICFRS, has to be ranked, in a crowded field, amongst the most bizarre.

“2. The right to an internal review request is embodied in three separate forms of guidance, provided respectively by the Cabinet Office in terms of a section 45 FOIA Code of Practice; by the Information Commissioner’s Office; and the College of Policing in their FOIA Authorised Professional Practice (APP). The latter is embedded, via the College’s Code of Ethics, in section 39A of the Police Act, 1996.

“3. How, or why, HMICFRS comes to believe that is in order for them to circumvent all of that guidance, or statutory obligation, is troubling. Mostly, in the context of their role as ‘criminal justice watchdog’ holding police forces to account. If this is how a regulator behaves, on the What Do They Know public platform, dealing with a relatively minor FOIA request, the public are fully entitled to know what goes on behind closed doors and, as a result, may well enquire: ‘Who inspects the inspectors’?

“4 That concern is heightened by the belated admission that part of the access request does not fall for consideration under either of the two exemptions previously relied upon (section 33 and 36).

“5. It is a requirement of the Act that disclosure is made PROMPTLY, not when a public authority, or policing body, decides it suits them, either administratively or in support of a pre-disposition not to disclose, or to delay disclosure until the last possible moment. The proposition advanced for further delay – that it would impact on any future appeal – is, quite frankly, nonsensical.

“6. The first internal review request was carefully researched, and thought through, by an experienced information rights practitioner, who enjoys a far higher success rate in access requests under FOIA than the average for his journalist contemporaries . It was incumbent upon HMICFRS to apply the necessary level of preparation and thoughtfulness in formulating its response. Correspondingly numbered paragraph by correspondingly numbered paragraph.

“7. It was also incumbent upon HMICFRS to disclose materials not subject to any exemptions without any further delay. I can find no trace of any dispensation for Her Majesty’s Inspectorate of Constabulary in any section of the Act or in any part of the various Guidance referred to above.

“8. Accordingly, HMICFRS is, most respectfully, invited to escalate this matter above the grade of officer providing the first internal review request and, most preferably, to one who understands both the applicable statutory framework and what, actually, is in issue in the first internal review request: In summary, the right of HMICFRS to apply the exemptions at sections 33 and 36, at all, is challenged; and the right to delay disclosure of materials that could not conceivably fall under either of those same exemptions, in any event.

“9. If it was the decision of HMICFRS that the internal review request was not upheld, cogent and persuasive submissions were made in respect of the public interest test that should, in my respectful submission, re-assure any independent reviewer that the scales weigh heavily in favour of disclosure.

“Over and above that, and, strictly speaking, outwith the scope of the Act and this second internal review request, there is a residual reputational issue for HMICFRS to consider and one that fits well with the Service’s strapline, ‘Promoting Improvement in Policing’:

“In my respectful submission, and on the basis of this relatively straightforward access request, a FOIA knowledge and quality assurance gap appears to exist on the 6th Floor of Globe House. Readers, and fellow users, of the What Do They Know website would, doubtless, be greatly assured if confirmation could be given that these issues are to be addressed without undue delay”.

That second review request was made in the full knowledge that, as with almost all policing bodies and police forces, it is likely that there will now be a renewed determination to frustrate disclosure to which the applicant is properly entitled, by law. It explains, in part at least, why the police service in England and Wales is in such a parlous state and its watchdogs inspire such little confidence or respect.

Escalation of request confirmed

In a short communication dated 19th October, 2021, HMICFRS confirmed that the requested escalation was now agreed.

They offered no explanation as to why those materials not subject to any exemption were still being withheld. In open defiance of the law of the land.

Views of Her Majesty the Queen now sought

Via The Royal Family’s Twitter account, Her Majesty the Queen has been requested to clarify whether Sir Thomas Winsor, her appointed chief inspector, has been granted special dispensation from the edicts of her Parliament. As yet, there has been no response. The Buckingham Palace press office is to be approached, separately. It is an important public interest point and one upon which the Head of State of the United Kingdom would, one might reasonably expect, have a pertinent view.

Collateral requests to Home Office and Greater Manchester Mayor

As if to prove that point, a collateral access request was made to the Home Office on 12th September, 2021 (read more here) on the topic of GMP and Special Measures. That has now, also, fallen outside of the time limit for response.

In the meantime, and in anticipation of a drawn out struggle with both HMICFRS and the Home Office over disclosure, an access request has been made to the Greater Manchester Mayor’s office seeking copies of correspondence with the watchdog and any schedule of inspection dates supplied to them.

Page last updated at 0015hrs on Wednesday 20th October, 2021

Corrections: Please let me know if there is a mistake in this article. I will endeavour to correct it as soon as possible.

Right of reply: If you are mentioned in this article and disagree with it, please let me have your comments. Provided your response is not defamatory it will be added to the article.

Photo credit: Reach plc

© Neil Wilby 2015-2021. Unauthorised use, or reproduction, of the material contained in this article, without permission from the author, is strictly prohibited. Extracts from, and links to, the article (or blog) may be used, provided that credit is given to Neil Wilby, with appropriate and specific direction to the original content.

Published by Neil Wilby

Former Johnston Press area managing director. Justice campaigner. Freelance investigative journalist.

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