Singing like a Canary….Wharf

Time to reconsider the public interest test again

The merits or otherwise of torture is not really a topic I thought I would be discussing in detail on this blog, but the fact that I am just goes to show the true wonder of FoI.

Now some say that torture is a pointless exercise and I have to confess that if you strapped me to a chair and came at my sweetbreads with a set of jump leads I’d tell you everything including next week’s Lottery numbers.

So the practical usefulness of torture has often been debated alongside the moral argument as to whether it is something civilised society can ever justify.

Enter stage left a FoI question to the Metropolitan Police Service (MPS) asking them for information about a plot to hijack planes and fly them into Canary Wharf.

The question followed a statement from President George W. Bush in September 2006 when he said that ‘questioning’ of terrorist suspects in secret detention facilities had averted an assault on Canary Wharf.

As somebody who thinks torture is a bad thing but also has friends and a relative working in Canary Wharf this causes me something of a moral dilemma.

What is needed is a little of the smoke to be blown away to see if there is any truth behind the alleged plot to fly a plane into the capital’s iconic business tower block.

The question to the MPS asked ‘how a plot… was foiled using information from the programme to detain suspected terrorists in undisclosed locations outside the US’.

Initially the MPS refused to confirm or deny it held such information relying on a total of six exemptions. Eventually this seemed to boil down to just three; S.23 (Security Bodies), S.24 (National Security) and S.27 (International Relations).

The Commissioner rejected the NCND position of the MPS and said it should state if it had the information or not. The MPS took this decision to the Tribunal.

At the Tribunal evidence was produced for the first time by an officer referred to as Det Chief Supt W who convinced the panel that if the MPS held the information it would have come through one of the intelligence agencies listed in S.23.

My reading of the decision and it appears something of a technical victory for the MPS is that the appeal was allowed on the basis that the question asked about “information from the programme to detain suspected terrorists….” This information must have come from a security body and so to confirm or deny would be a breach of S.23.

However, the way I read the decision leaves the door open for a simpler question just asking if the MPS holds such information, but doesn’t inquire as to where the information originated. I’d be interested in your thoughts.

Two other points worth mentioning from this decision are the stick the Commissioner takes for taking so long to reach an initial decision on the appeal. The Tribunal does not say exactly how long this was but states: “the requestor might be forgiven for having forgotten that he had made the request”.

Secondly the Tribunal makes an interesting comment on the general topic of this case and its wider significance saying: “We have remarked already on the wide ambit of s.23. It is not hard to understand why it is broadly drafted.

“In this particular case, however, we are concerned as to its effect. The interrogation of detainees in offshore facilities, the methods allegedly used, the use of information thereby obtained and the possible collaboration of the U.K. government in these activities are still matters of vigorous and anxious debate in this country.

“Whether the CIA passed to UK intelligence the information referred to by President Bush may be a question of considerable importance in such a debate. In the rather unusual circumstances of this case (where a head of state has publicly announced the source of terrorist intelligence), it is hard to see that any significant damage could be caused by confirmation or denial.

“The extreme rarity of such announcements might be seen as a robust defence to the dangers of creating precedents.”

The Tribunal was also critical of the MPS for not bringing forward the crucial evidence of how the link was made to the security services until the Tribunal stage. Had it been done earlier it would possibly have saved everybody time and money.

The Tribunal’s ruling can be seen [here].

Informants’ secrecy slowly peeling away

Sometimes extracting information from public bodies can be a painful process. Is it safe?

Police forces look as if they are going to be forced to disclose yet more information about the amount of money they pay their “sources” for information about criminals.

The police service has always attempted to maintain a robust defence to protect data about so called Covert Human Intelligences Sources (CHIS). However, that protection had a huge chunk taken out of it last year in a Decision Notice in relation to informants paid by Northumbria Police [link] and has now been further nibbled away at in a ruling against the Metropolitan Police Service [link].

Arguments have been fairly routine in that the police have acted to protect the confidentiality of their informants and to this end refused to release any meaningful data about the amounts handed over to their “grasses”.

Forces have claimed S.30 (investigations) and S.38 (health and safety). In summary it is claimed by forces that disclosure of the amounts paid to informants as a whole could lead to the identification of individuals which could be a disincentive for sources to come forward in the future and could lead to attacks on the informant.

The counter claim has been that the detail of information that is being asked for – normally the annual figure paid to informants in a wide geographical area – is not going to lead to any individual being identified and therefore the exemptions are not relevant.

The significance of the most recent judgement is the geographical area that the data covers. The request was for the amount paid to informants in Croydon, one of the London boroughs served by the Metropolitan Police Force(MPS).

Lawyers for the MPS stated that in the Northumbria Police decision the potential pool of people (the population of the Northumbria Police area) was 1.5million, whereas Croydon covers just 300,000 people.

The Information Commissioner rejected this argument and obviously felt that the informants within the 300,000 population of the south London borough would still have their anonymity assured even if the total payment figures were disclosed.

The passage of this ruling has a similar history to that relating to the details of the numbers of registered sex offenders in each police area. Initially police would only give the number registered in each force but following a Decision Notice [link] on the subject they were made to give out the numbers by police divisions within each force area.

UPDATE 9.1.10: It would appear from an article in the Times that it is the Police’s intention to appeal the decision to the Information Tribunal.

Commissioner’s ruling on airport security

Does Bin-Laden worry about whether he put enough money in the meter?

A row over terrorism and airport parking tickets has had to be settled by the Information Commissioner.

The Metropolitan Police force refused to reveal if it held records on the number of cars ticketed or towed away from a road at Heathrow Airport.

The police claimed that to reveal if it held the information could be useful to terrorists. But the Information Commissioner has now ruled against the Met and has told the force it has to say if it holds the records.

It is still open to the Met to try to refuse revealing the information – but now it has to at least admit if it holds the data – and can no longer refuse to confirm or deny whether it holds it.

In the ruling the Met claimed it was free to neither confirm or deny it held the information because of S.31 (Law Enforcement).

The decision notice said: “the public authority stated its stance related to the pattern of enforcement that it believed would be revealed through confirmation or denial.

“It believed that any site where it was revealed that police monitoring was not regular would become a more attractive site to terrorists planning attacks using vehicles.

“The argument of the public authority is that the pattern of police monitoring and traffic enforcement that would be revealed through this and other future, similar requests would provide information that would assist in the planning of terrorist attacks.”

Giving his decision the Information Commissioner said: “The Commissioner does not accept that confirmation or denial in response to this request would reveal information about police monitoring or enforcement that would be prejudicial in the way that the public authority has suggested.

“Neither does the Commissioner accept that differing confirmation or denial responses to a number of similar requests made about other areas close to airports would reveal any differences in the policing of these areas. This means that the Commissioner also does not accept that confirmation or denial would provide information of use to terrorists.”

NOTE: This is an interesting decision in that it has many similarities to the on-going rows about site specific speed camera data. In the case of speed cameras public authorities never, to my knowledge, opted for the ‘neither confirm or deny’ strategy but instead focused on S.31 and S.38 (health and safety).

But the arguments used by the police in this case are very similar in that to give out specific data for one location could lead to assumptions being made about other locations. So that if you work out where resources are being deployed in strength you can work out where the weaknesses in the system are.

However, it would appear that the applicant for this information will be faced with a long haul for the information. I imagine the Met will now exempt the information under S.31 and if the applicant can be bothered it will take its place again in the Commissioner’s queue of unresolved cases.

I have written about ‘neither confirm or deny’ previously. [Are you free to say nothing?]

You can see the decision notice here. [link]

Wrong, wrong, wrong..

Who was supposed to be packing the passport?

The Metropolitan Police Service (MPS) have been given a public rebuke from the Information Commissioner’s Office for taking 100 days to carry out an internal review relating to a request concerning Cherie Blair.

The applicant had asked for information the MPS held on an incident when the former Prime Minister’s wife turned up at Heathrow without her passport and then contacted No.10 to get the document couriered to the airport. (link)

Initially the MPS had refused the request for information claiming it was covered by S.24 (National Security), S.31 (Law enforcement) and S.38 (Health and Safety).

But after the Information Commissioner got involved the MPS admitted that the limited information it did hold - a short press statement - was not covered by the exemptions.

However, the Commissioner explored the case and found the complainant had asked the MPS for an internal review on 16 March 2006 and had to wait more than five months, until 21 August 2006 for the MPS to confirm its refusal.

In the decision notice the MPS is taken to task for:

• Belatedly finding information that should have been disclosed,
• Only undertaking a thorough search for information after the intervention of the Commissioner,
• Taking 90 days to issue its initial refusal notice,
• Incorrectly stating that the information was covered by three exemptions, and failing to state which subsections of the exemptions it thought were applicable,
• Taking over a 100 days to carry out an internal review which upheld its own incorrect view, which was later retracted after the intervention of the Commissioner.

The Information Commissioner said in his decision notice that the MPS breached Section 1, Section 10 and Section 17 of the Act.

He said: “The Commissioner remains concerned that it took over 100 working days for an internal review to be completed.”

ICO starts monitoring of Publication Schemes

The Information Commissioner has revealed details of those authorities who have received a ticking off for their Publication Schemes.

In January the Commissioner issued new guidance for authorities in relation to their Publication Schemes and said there would be a system put in place to ensure everybody was coming up to standard.

Following a Freedom of Information request to the Information Commissioner’s Office (ICO) we now have a few more details of what that actually means. (link)

The first section that the ICO intends to monitor is central Government. The surveillance which started on April 20 will last for around four weeks and then a report will be prepared around mid-June.

After that it would appear that the ICO will move on to different sectors - I’m afraid I didn’t ask for a list to see who was top and bottom of the monitoring list. But from that timescale I presume that if you are a sector at the bottom it could well be well in 2010 before the ICO starts clicking on your website.

However, the ICO did reveal that a number of public authorities have been written to since January to get a telling off about their publication scheme. These organisations are Staffordshire Primary Care Trust, Royal Mail, Lancashire Police (please see comment), South Wales Police, Northern Ireland Legal Services Commission and the City and County of Swansea.

The ICO also said that the issue of improving the Publication Scheme had been raised verbally with Leeds City Council and the Metropolitan Police.

So remember the ICO is watching.

More than 400 appeals fester with the ICO for more than a year

The Information Commissioner’s Office has come back to me and provided an answer for the number of appeals it has had now for more than a year. The answer is a staggering 416 of which 25 haven’t even been dished out to an officer to start the process of an investigation.

The BBC comes out top of the list - unsurprising really as they try to avoid almost all requests by claiming the Act does not apply to them and referring those complaints straight on to the ICO without offering an internal appeal.

You can find the answer to the question at this link and the spreadsheet shows all the organisations that have an appeal stuck in the ICO’s pipeline. But here are the highlights.

The Public Authorities with the most appeals lodged with the ICO that have been there for more than a year:

BBC (32)

Cabinet Office (21)                                                            

Home Office (18)                                             

Ministry of Defence (17)                                        

Department of Health (13)                                                                 

DEFRA (12)         

Ministry of Justice (12) + 5 (National Offender Management Service)

Metropolitan Police Service (10)                                                                         

Foreign & Commonwealth Office (8)                                                                           

Department for Culture Media and Sport (7)                                     

Councils

Wakefield Metropolitan District Council (5)                                           

Brighton & Hove City Council (3)                                               

Buckinghamshire County Council (3)                                                            

Cambridge City Council (2)                                         

Ferryhill Town Council (2)                                         

Kent County Council (2)                      

Liverpool City Council (2)                                                         

London Borough of Bromley (2)                                                                

London Borough of Camden (2)                                                                       

London Borough of Enfield (2)                                                                   

London Borough of Islington (2)                                                                    

Shotteswell Parish Council (2)                                                                  

West Sussex County Council (2)                                                                     

Winchester City Council (2)                                                                 

Wokingham District Council (2)

Police         

Metropolitan Police Service (10)

Chief Constable Lancashire Constabulary (3)                                       

Cambridgeshire Constabulary (2)                                                                        

Chief Constable Greater Manchester Police (2)                                                 

Police Service of Northern Ireland (2)                                               

National Policing Improvement Agency (2)

Education

Newcastle College (2)

Oxford University (2)

You’ll have to Imagine what’s in my files

What would John have made of the use of S.23 combined with S.24

The Metropolitan Police Service (MPS) has received a dressing down over the way it dealt with a Freedom of Information request relating to files it holds on John Lennon.

A recent decision notice (link) from the Information Commissioner raps the MPS for failing to deal with the request properly and not coming up with any justification for the exemptions it claimed related to the material.

The saga began in September 2006 when a woman asked for all the information from the John Lennon files which were held by Special Branch. The former Beatle, who was shot by a crazed fan in New York 25 years ago, was known to have been on the radar of the security services in the 1960s because of his left-wing views.

MPS decision makers refused to confirm or deny if it held the information claiming it would be covered by S.23 (information to security bodies), S.24 (national security), S.31 (law enforcement), S.38 (health and safety) and S.40 (personal information).

In a damning verdict of the way the MPS processed the request the Information Commissioner has now ordered the force to state if it holds the information.

The Information Commissioner says: “In the absence of any explanation from the public authority, either at the refusal notice or internal review stage, or in its correspondence with the Commissioner, as to its reasoning for why these exemptions are engaged or, in relation to why the public interest favours the maintenance of these exemptions….. the Commissioner concludes that these exemptions are not engaged.

“The Commissioner also finds that the public authority failed to comply with procedural requirements……… through its inadequate handling of the request. The public authority is required……. to provide a confirmation or denial of whether it holds information falling within the scope of the request.”

The decision notice makes clear that just because the material in question is held by a security force does not necessarily mean that it is covered by S.23 or S.24. The MPS had four opportunities to explain why the information was covered by the exemptions but did not appear to make an attempt to provide a reasoning for its decision, the Information Commissioner said.

Click here for YouTube footage of the news reports from the day Lennon was shot.

Police protection from beyond the grave

Police informants will get protection even after they die

Police informants will have their names protected from disclosure even after they have died, an Information Tribunal has ruled.

 

The decision (link) makes clear that police “grasses” need to be guaranteed anonymity beyond the grave or they would never come forward in the first place.

The Tribunal heard evidence from senior officers at the Metropolitan Police Service (MPS) saying that disclosure of the names of informants from the 19^th century still created a knock-on risk to modern-day policing.

The MPS were against releasing the names of the individuals, which were held in old police ledgers, stating the information was exempt from disclosure under S.30 (investigations).

In the original case before the Information Commissioner the MPS had said: “Informants expect their identities to be protected indefinitely. If we are unable to reassure them of total anonymity because of possible release under the Freedom of Information Act, the MPS will not be able to recruit future or sustain current informants.  

“Agreeing to become an agent or informant is a major step of trust often involving the informant taking physical risk, in betrayal of his own country, family, colleagues and sometimes in feelings of shame or guilt.

 “It is difficult to persuade potential agents to take this step and they have to be reassured that no one will ever know what they have done. We believe it is important and that nothing should be done to undermine the confidence of current and potential agents around security and intelligence services keeping identities secret. It would be a major deterrent to some potential agents if they thought their role might be revealed even long after the event.“

The original request for information was made in July 2005 by Mr Alex Butterworth, a historian and author, who was researching European anarchists of the 1880s and 1890s. He knew of the existence of the informants’ ledgers because a Dr L Clutterbuck, a retired Special Branch Officer, had referred to them in his doctoral thesis, completed some years ago, on policing Fenian terrorism.

Roger Pearce, a former Commander of Special Branch, gave evidence to the Tribunal and stated the groups from which informants were drawn were generally subject to an atmosphere of “absolute paranoia”. This strengthened the need to ensure that the necessary element of trust and confidence existed between a handler and the informant.

The Tribunal overturned the Information Commissioner’s original decision that the material should be released stating there was a “overriding if not exceptional public interest” in maintaining the S.30 exemption. It ruled that Mr Butterworth should be able to see the information in the ledgers but that all the names in them should be redacted.

Editor’s note: A strange case here that has taken almost four years to resolve. Much of the MPS’s difficulties in this case were caused by the rather ad-hoc way they had allowed access to documents before the FoI Act came into place. Its arguments were rather undermined in the case before the Commissioner in that they had allowed its former employee access to the documents.

CCTV footage of July 7 bombers to be released

Suicide bombers caught on CCTV

Previously unseen CCTV footage of the July 7 London suicide bombers should be released into the public domain against the wishes of the Metropolitan Police force.

That is the decision of the Information Commissioner who ruled in favour of the Press Association who had appealed the capital’s police force’s decision to try to keep the images secret.

Officials for the Met said the previously unseen images should not be released as they were covered by S.30 (Investigations) and S.38 (Health and Safety).

The Commissioner ruled that S.30 was engaged but that the public interest in disclosure outweighed the maintenance of the exemption. The Met’s argument that S.38 protected the images from disclosure was thrown out by the Commissioner who stated that it did not apply.

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