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FREEDOM OF INFORMATION REQUEST REFERENCE NO: 1092-2023
I write in connection with your request for information which was received on 29th November 2023 as follows:
I want to know information about the protocol with the Warwickshire hunt.
Q1. I want to know who was in charge or organisation of the protocol.
Q2. What the protocol states or the information within it.
Q3. Why the protocol has not been give to the local residents whom pay your wages.
Q4. Whom is the police liaison officer to the hunt whom you said you have.
Q5. How many complaints about the hunt in regards to traffic in 2022.
Q6. How many complaints about the hunt trespassing on private land.
Basically any information that can be used for press use
Please accept my sincere apologies for the delay in providing the response to your request and for any inconvenience this may have caused. Please find the Warwickshire Police response set out below.
Response:
Q1. I want to know who was in charge or organisation of the protocol.
Q1 response: This was dealt with by our legal services department and was signed off at Chief Officer level.
Q2. What the protocol states or the information within it.
Q2 response: Section 1 of the Freedom of Information Act 2000, 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.
When refusing to provide such information, because the information is exempt, Section 17 of the Freedom of Information Act 2000 requires Warwickshire Police to provide you, 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.
I can confirm that Warwickshire Police hold the requested information; however, it is being withheld from disclosure by virtue of the following exemptions:
Section 32 – Court records
Section 42 – Legal Professional Privilege
Section 32(1)(b) states that information held by a public authority is exempt information if it is held only by virtue of being contained in any document served upon, or by, a public authority for the purposes of proceedings in a particular cause or matter.
Section 32 is an absolute class-based exemption, therefore there is no requirement to provide evidence of harm or consider the public interest test.
In this case, the exemption is engaged as the protocol exists only by virtue of being created to resolve litigation proceedings of which Warwickshire Police were a party.
More information about Section 32 can be found at the College of Policing Authorised Professional Practice website, including an extract from the Act and ICO guidance. Please find the link below:
Freedom of information | College of Policing
Section 42 relates to Legal Professional Privilege (LPP) and protects the confidentiality of communications between a lawyer and client.
In this case the requested information is a confidential legal document created for Warwickshire Police by their legal advisor to resolve litigation, and which is protected by privilege as the document has only been subject to restricted disclosure between parties.
In Bellamy v the Information Commissioner and the Secretary of State for Trade and Industry (EA/2005/0023, 4 April 2006), the Information Tribunal described LPP as:
“a set of rules or principles which are designed to protect the confidentiality of legal or legally related communications and exchanges between the client and his, her or its lawyers, as well as exchanges which contain or refer to legal advice which might be imparted to the client, and even exchanges between the clients and [third] parties if such communications or exchanges come into being for the purposes of preparing for litigation”
In the Bellamy decision, the Tribunal acknowledged that there are two types of privilege within the concept of LPP:
Litigation privilege applies to confidential communications made for the purpose of providing or obtaining legal advice about proposed or contemplated litigation. Litigation privilege can apply to a wide variety of information, including advice, correspondence, notes, evidence, or reports.
Advice privilege applies where no litigation is in progress or contemplated. It covers confidential communications between the client and lawyer, made for the dominant (main) purpose of seeking or giving legal advice.
In this case Warwickshire Police considers the requested information to be covered by litigation privilege and Section 42(1) of the Freedom of Information Act is engaged.
Section 42(1) states:
Section 42 is a qualified class-based exemption which requires us to carry out a public interest test where we must weigh the public interest in maintaining the exemption against the public interest in disclosure. Information can only be withheld if the public interest in maintaining the exemption outweighs the public interest in disclosure. The public interest here means the public good and is not what is of interest to the public or the private interests of the requestor.
Please see the public interest test set out below:
Public Interest Test
Section 42(1) - Factors favouring disclosure
There is a public interest in transparency and accountability around how Warwickshire police spend public funds to aid their decision making and carry out their functions. Furthermore, the public’s confidence in the integrity of the police service could be enhanced by disclosure and would lead to a better-informed public and may add value to the accuracy of public debate.
Section 42 (1) - Factors favouring non-disclosure
A disclosure under the Freedom of Information Act is a release of information to the world in general and not just to the requestor.
There is a strong public interest in safeguarding openness in all communications between Warwickshire Police and its legal advisors, to ensure access to full and frank legal advice, which in turn is fundamental to the administration of justice. Should Warwickshire Police be unable to seek advice in a candid and open way, and its legal advisors be unable to respond without concern that the correspondence will be subject to public scrutiny, there would be a significant reluctance to request and provide legal advice. This in turn could severely prejudice the quality of decision making and could impact on the effective conduct of policing processes.
Balance Test
When balancing the public interest, arguments favouring disclosure need to be balanced with those against.
In carrying out this balancing exercise, I have considered the strongest reason for disclosure, which is that it would demonstrate openness, transparency and accountability, and would serve to maintain public confidence in Warwickshire Police. I have also considered that the matter involving the protocol has attracted interest from some members of the public. I have balanced this against the strongest reason for withholding the information, which is that it would undermine the legal principle that all communications between a client and their lawyer or third party, whoever the client may be, is confidential, and that those seeking and giving advice must be able to do so free of concerns that this will be subject to public scrutiny. Without such a privilege the quality of decision making within the force will be severely compromised.
Taking into account all of these factors, I consider that the balance of public interest lies in favour of non-disclosure.
This letter serves as a refusal notice under Section 17 of the Freedom of Information Act, in relation to the requested information.
Q3. Why the protocol has not been given to the local residents whom pay your wages.
Q3 response: No information held.
Q4. Whom is the police liaison officer to the hunt whom you said you have.
Q4 response: Section 1 of the Freedom of Information Act 2000 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.
Warwickshire Police can neither confirm nor deny that it holds the information requested, as the duty at section 1(1)(a) does not apply by virtue of the following exemption:
Section 32(3) – Court records
Section 32 is a class-based, absolute exemption, therefore there is no requirement to provide evidence of harm or consider the public interest test. The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of this section.
In accordance with the Act, this letter represents a Refusal Notice for this part of the request; however, no inference can be taken from this refusal that the specified information is or is not held.
Q5. How many complaints about the hunt in regards to traffic in 2022.
Q6. How many complaints about the hunt trespassing on private land.
Q5 and Q6 response:
Section 1 of the Freedom of Information Act 2000, 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.
Although Warwickshire Police have publicly acknowledged that complaints have been made in relation to hunt activity, for example via the following article published on the force website:
An update on the policing of hunt activities in Warwickshire | Warwickshire Police
Given that your request refers to ‘the hunt’ or ‘the Warwickshire Hunt’ it has been interpreted as asking about information relating to the ‘Warwickshire Hunt Ltd’, Therefore, Warwickshire Police can neither confirm nor deny whether information is held in relation 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:
Section 40(5) Personal information
Section 40 is an absolute exemption and does not require me to articulate the harm in neither confirming nor denying whether information is held, nor does it require a public interest test to be carried out.
Please be advised that any information released as a result of a Freedom of Information request is, in effect, being released into the public domain. Therefore, it could subsequently be published or would have to be made available to any member of the public if it were requested.
The decision to issue a ‘neither confirm nor deny’ response is not affected by whether Warwickshire Police do or do not hold the information but relates to the consequences of confirming or denying the 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.
Any information that relates to an individual, or from which an individual could be identified, constitutes personal data and to release information that constitutes personal data into the public domain contravenes the Data Protection Act 2018, in particular Article 5(1) of the GDPR.
Where confirming or denying that Warwickshire Police do or do not hold information would, of itself, provide information about individuals, including the fact such information may or may not be held, then the exemption applied is Section 40(5).
In accordance with the Act, this letter represents a Refusal Notice for these parts of the request; however, no inference can be taken from this refusal that the specified information is or is not held.
Every effort has been made to ensure that the information provided is as accurate as possible.
Your attention is drawn to the below which details your right of complaint.
Should you have any further enquiries concerning this matter, please write or email the Freedom of Information Unit quoting the reference number above.
Yours sincerely
Freedom of Information Officer
Freedom of Information Unit
Warwickshire Police
PO Box 4
Leek Wootton
Warwickshire
CV35 7QB