FOI 0693-2023/24- Complaints regarding mis-use of police body warn video

Request:

Q1. A chronological list of all known complaints made about police mis-use of body worn video since January 1st 2022 to the date this response is compiled. Per complaint, please provide the year of the incident, description of mis-use and complaint (for example, BWV shared on WhatsApp), and outcome of the complaint (i.e. substantiated/ unsubstantiated or upheld/not upheld)

Q2. Please also provide a definitive list of records of all misconduct cases against officers accused of mis-use or incorrect use of body worn video since January 1st 2022 to the date this response is compiled. Please provide the year and month of the incident, description of the mis-use and reason for misconduct, misconduct outcome, outcome to officer (e.g. dismissed) and investigatory body (e.g. PSD/IOPC).

Q3. Please confirm if any officers have faced a gross misconduct investigation for mis-use of bodyworn video from January 1st 2020 to the date this response is compiled. Please state what the nature of the misuse was and the outcome of the investigation.

Response:

Extent and Result of Searches to Locate Information

To locate the information relevant to your request searches were conducted within North Yorkshire Police. I can confirm that the information you have requested is held by North Yorkshire Police.

Decision

I have today decided to disclose the located information to you.

Q1. Please see the table below which details all complaints received by North Yorkshire Police regarding the misuse of body worn video from 01 January 2022 to 31 December 2023.

Year	Complaint	Result
2022	The officers were wearing BWV but turned them off to hide their illegal behaviour.	Service not acceptable – learning from reflection
2022	The BWV of officer was not linked to the occurrence within DEMS.	Service not acceptable – referral to RPRP
2023	The comp states that the female did not activate her BWV during the incident.	Service was acceptable – no action

Q2. Please see the table below which details all conduct matters recorded by North Yorkshire Police regarding the misuse of body worn video from 1 January 2022 to 31 December 2023. I am exempting any further information to the question, specifically a further breakdown of  the month of which the conduct occurred pursuant to section 40(2) of The Freedom of Information Act. Please see exemption explanation below.

Year	Conduct	Result
2022	Fail to record whole response to incident attended on BWV	Case to answer – Referral to RPRP
2023	Took BWV off placing it out of earshot – lack integrity and falls below the standards of transparency and openness when making decisions.	Case to answer – Referral to RPRP
2023	Turned off BWV putting others at risk– failed to be open and transparent	No case to answer

Q3. None of the officers involved in the above matters have faced Gross Misconduct proceedings

In relation to Q2, for any ongoing investigations I am exempting any data pursuant to Section 31(1)(g) by virtue of 2(b) the purpose of ascertaining whether any person is responsible for any conduct which is improper. Please see the exemption explanation below.

Exemption Explanation

Section 17 of the Act requires North Yorkshire Police, when refusing to provide such information (because the information is exempt) to provide you the applicant with a notice which: (a) states that fact, (b) specifies the exemption in question and (c) states (if that would not otherwise be apparent) why the exemption applies.

Section 40 – Personal Information

I am exempting providing you with any further details of each complaint pursuant to Section 40(2) Freedom of Information Act (the Act).  This is to refrain from particular incidents becoming identifiable and to ensure anonymity for those involved in each case, specifically the complainant.

Where an individual can be identified by such data, releasing it would clearly breach the first data protection principle of being ‘fair’ to the data subject.

Section 40(2) is an absolute class based exemption, which does not require a public interest test, but requires the balancing of the legitimate interests of the public against the interests of the individual under the first Data Protection Principle; in that processing of personal data must be lawful and fair (DPA 2018 35(1), EUGDPR Article 5(1)).

This exemption applies because the right given under the FOI Act to request official information held by public authorities does not apply to the personal data of third parties where disclosure of that information would not be fair to the individual, and where there is no legitimate public interest in disclosure.

In all the circumstances of the case it has been determined that the duty to the individual under the Data Protection Act 2018 & EU General Data Protection Regulations, and the public interest in maintaining the exemption from disclosure of personal information held by the force in such instances, outweighs the public interest in disclosure.  In this instance, personal information can only be disclosed to the individual concerned. 

Releasing personal details to a person other than the data subject would not only breach the data subject’s Data Protection rights it may also breach the obligations placed on an authority under the European Convention on Human Rights.

Section 31(1)(g) (2b) – Law Enforcement

Section 31 is a prejudice-based qualified exemption and there is a requirement to articulate the harm as well as carrying out a public interest test.

Evidence of Harm

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 details of cases where investigations are/have taken place would prejudice a fair and just process in ascertaining whether any person is responsible for any conduct matter which is improper.

Factors favouring disclosure under Section 31

Releasing information would allow the public to have a better understanding of the types of complaints that are being made by the public or staff members.

Information would ensure transparency around such conduct matters.

Factors against disclosure under Section 31

It can be argued that there are risks associated with providing information in relation to conduct matters, as full details and accounts may not have fully been assessed in respect of truth /conduct. This in turn would affect the forces ability to carry out law enforcement as information could be used against officers or staff where there is no justification to do so, as cases may not be upheld.

Standards of Professional Behaviour are expected by the police and the public on how police officers should behave. As such there are already processes in place for disclosing such matters e.g. ‘ gross misconducts’ when certain cases have been held. Disclosing any other information may affect the public’s confidence in the police service and also affect those who may have been involved in the cases. As information is provided in confidence, to reveal such information would prejudice that sharing of information between the public/victim and the police.

Balance test

Whilst there is a public interest in the transparency of policing misconduct matters, there is a very strong public interest in safeguarding the integrity of police investigations in these highly sensitive areas. As such any disclosure of information will only be overridden in exceptional circumstances. It is our opinion that for these issues the balancing test for exempting your request is not made out.

Pursuant to Section 17(1) of the Act this letter acts as a Refusal Notice in response to part of your request.

Please note that systems used for recording information are not generic, nor are the procedures used locally in capturing the data.  It should be noted therefore that this force’s response to your questions should not be used for comparison purposes with any other responses you may receive.