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].

U English. Wat informazion ar u holding?

Members of the Scorpions - not Cambridgeshire police. This was the alternate cover. I find this one pretty offensive and upsetting.

Cambridgeshire Police force is being forced to disclose what information they hold in relation to a row which developed last year into the censoring of internet.

The dispute centres on a decision by the Internet Watch Foundation (IWF) to blacklist Wikipedia due to concerns over the legality of an image used on the page of German heavy metal band Scorpions.

The image in question was the album cover called Virgin Killer – and features a naked prepubescent girl. Four days after some of Wikipedia’s pages were blocked because of the row the IWF reversed the decision and the image can once again be viewed on the band’s pages on the site.

From a Freedom of Information point of view the issue relates to an applicant asking Cambridgeshire Police “Please disclose…what is in the communications between the Police and the Internet Watch Foundation that relates to an image on Wikipedia of the cover of an album by rock band The Scorpions.”

The police force refused to either confirm or deny it had the information claiming it was covered by a S.30 (Investigations) exemption.

However, when the commissioner looked into the matter it was ruled the exemption was not applicable to the case.

It appears Cambridgeshire Police did not want to release information because it did not want to reveal that it was the force that was contacted for advice by the IWF – and in essence wanted to keep the relationship between it and the non-Governmental internet watchdog secret.

The Commissioner’s decision said this was not a valid reason under S.30 which would have needed to address the actual information itself rather than just the relationship between the two organisations.

He ruled the exemption was not applicable and so therefore did not even go on to consider the Public Interest test.

The force was also criticised over the way it conducted its internal review of the applicant’s request.

The Commissioner said: “The internal review response from the public authority did not reflect that a reconsideration of the request conforming to the description above took place. The Commissioner would advise the public authority that a response giving the outcome to an internal review should state the reasoning for why the initial refusal was upheld and should reflect that there has been a genuine reconsideration of the request.”

You can read the decision notice [here].

WARNING: If you click on this link [here] you will be taken to the Wikipedia site where you will see the image. Please do NOT click here if you are going to be offended/upset.

How low can you go?

At some point you can get no lower.....

Freedom of Information officers often come up against the problem of when and if statistical data can be seen on specific occasions to be a breach of S.40 (Personal Information).

Most commonly this problem has been seen in tables of data – often about medical conditions – where the public authority will put a dash “-“ in any cell where the value is less than five.

The Department of Health (DoH) regularly uses this technique when providing tables showing the number of women who have had multiple abortions.

You will see from this Abortion data table that there are a handful of under-18 girls who are on their third abortion or more – yet the DoH refuses to give us the exact figure.

In Scotland there was a long-running dispute over whether low cell values in a table of the prevalence of childhood cancer, could lead to those children being identified.

I have to say that I still have difficulty with the concept and certainly do not accept that any cell value under 5 or ten automatically has to be anonymised. In the abortion table example how would knowing that six women aged under 18 had their third abortion that year led to their identity being exposed?

The key to these questions, in my opinion, is the total pool from which the information is drawn. So in the abortion data case your pool of identifiable candidates is all the women aged under 18 in the whole country.

But this vexed problem of low cell values has taken a different turn in the case of Beresford Lane in the Sussex village of Plumpton Green.

A company that wants to put together data for prospective house buyers asked the local police force for data about anti-social behaviour in the lane for a six month period.

Sussex Police refused to either confirm or deny (NCND) it held any such information as it claimed that to state it held such information could lead to the identity of either the victim or the culprit. This use of S.40 was rejected by the Commissioner and has now also been thrown out by the Tribunal.

But the key element in this case was in essence the “total pool”/“cell value” which in this case was the number of people who lived in the lane  against the number of anti-social behaviour complaints in that lane.

The Tribunal came to the following conclusion: “The Appellant says that if it confirms or denies that it holds the requested information, that could lead to the identification of either those who have made complaints about ASB, or those about whom such complaints have been made. Clearly, if it does lead to such identification, that would amount to disclosure of personal data. The question is - would it lead to such identification?

“The facts before us are notably brief. We have been told that Beresford Lane, Plumpton Green, BN8, is a rural road with approximately 17 residential dwellings. Presumably, many, if not most of the 17 dwellings, will have multiple occupiers which means there are likely to be many more than 17 people living in the area covered by the request. The request covers a period of 6 months. We have no other facts of any significance. On these simple facts, we have great difficulty in seeing how, if the Appellant confirms or denies that it holds information on the number of ASB complaints reported, and the descriptions of any such ASB complained of, in that period and for that location, that would enable a living individual to be identified as having either made a complaint or having been the subject of such a complaint, or indeed to be identified in any other way. The Appellant has simply not demonstrated how that connection could be made.

“The position might be quite different on different facts. For example, if there was a known incident concerning one or more particular dwellings or individuals and if the time period covered by the request was relatively specific to that incident, a confirmation or denial could well lead to an individual being identified. That, however, is not the situation in the present case.”

So it would appear that in this case the Tribunal thinks that to disclose information about a cohort – sadly we don’t have an exactly figure but the number of people who live in 17 houses (34?) – will not breach S.40. But as the Tribunal has said different circumstances and different figures might lead to a different ruling.

The key question is when does that group number get so low that S.40 would be breached. And it appears that the Tribunal has neatly ducked out of answering that question.

The Tribunal ruling can be seen here. Tribunal decision.

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]

If…you can find a court record while others….

Is a person's record of conviction open to the public for inspection?

I have always been an advocate of a central, publicly accessible database of the criminal convictions of everybody in the country.

Mainly this comes from my experiences as a court reporter, being sent by a local paper to cover the magistrates court. Often I would find myself in one courtroom covering what was perceived to be a “good” case while other defendants were being dealt with in the other courts.

What you ended up with was the people who were unlucky enough to have me in the courtroom with them found themselves plastered all over the paper, while those in the other courtrooms were able to slink back into anonymity.

Why should it be that the experience of the local court reporter, and the financial and editorial priorities of the local paper determine which criminals have their convictions known to the public, and which manage to keep them secret?

This quirk in the criminal justice system has been exposed in an Information Tribunal ruling where John Carleton was attempting to find out from Worcester Magistrates’ Court the fate of a relative who had been before the JPs.

His attempts to obtain the record from the court were unsuccessful, and even after paying £25 to the court, the information was still not made available to him.

A Freedom of Information Act request was lodged with the Ministry of Justice (MoJ), which has responsibility for Her Majesty’s Court Service (HMCS), but it was turned down on the basis that it could not confirm or deny it held the information.

The Information Commissioner then took almost two years to uphold the MoJ’s decision although it was noted that it could have assisted the applicant more in directing him towards another piece of legislation that may have allowed him access to the court register.

When the Tribunal considered the verdict in upheld the view of the Commissioner, but it did however point out the strange situation the law has got itself in over the matter of court records.

It said: “The Tribunal notes that there are apparently anomalies created by the current Freedom of Information and Data Protection legislation in this area and which are mentioned briefly below.

“If the Appellant, as a member of the public, had attended the court on the relevant date there is no reason to suppose that he would not have been able to hear all the information that he was requesting because it would have been part of the normal, public court proceedings.

“If the Appellant had found out that the press or the media had covered the case and was able to get a copy of the newspaper report or media broadcast then – although the personal data in question would have been processed by becoming part of those reports – the Appellant would have had legitimate access to the information and the personal data he was seeking.

“If the local newspaper or media outlet put the court report within a webpage on the internet or as a “podcast” to be downloaded by the Appellant – whether there was a “search” facility on the site allowing specific names or topics to be highlighted and retrieved or not - and then viewed, printed out, played or stored, then all of that is legitimate processing of personal data within the current statutory legislation.”

The Tribunal has asked for this situation to be communicated back to the MoJ – but don’t expect any swift changes in the law. As for the applicant Mr Carleton, presumably he still doesn’t know what happened to his relative on that fateful day at Worcester Magistrates’ Court. He says that he wants to information so that he could help out his relative financially. The ruling doesn’t explain why he couldn’t just ask his relative.

The full Tribunal decision can be found here. [link]

Are you free to say nothing?

The Freedom of Information Act has a provision in it to allow public authorities to ‘Neither Confirm Or Deny” (NCOD) it holds the information the applicant asks for.

This is because in some cases merely stating that an authority holds information relevant to a request will disclose too much information even if the data itself can be withheld using one or more of the exemptions.

The Information Commissioner’s Office (ICO) give guidance on the subject (link) in which it provides two examples. Firstly an applicant wanting to know if particular surveillance information was held and, secondly a request to know if troops on active service are equipped with a specific type of weapon.

Some recent examples of the so-called NCOD have been ruled on by the Information Commissioner and they may help FoI officers establish when this can be used.

Ken Bigley

Foreign and Commonwealth Office (FCO) [Ref: 50188323] - In this case the applicant asked for any information the FO held on the identification of a voice that is heard - presumed to be the killer - in the video in which British hostage Kenneth Bigley is beheaded.  The FCO argued that if it did confirm or deny (whichever was appropriate), it would effectively confirm that the Government has (or has not) managed to identify those responsible for Mr Bigley’s death, thereby confirming to those responsible that they may, or may not, be under suspicion. The ICO upheld the FCO’s decision to NCOD the information under S.23 (Security Forces) and S.24 (National Security) of the Act.

The home in Forest Gate London that was raided by terror police.

Cabinet Office [Ref: 50137790]

- The applicant asked for information held that related to a raid on a property in Forest Gate, East London, where two suspected terror suspects were arrested - one was shot but survived - and were later cleared of any involvement with terrorism. The Cabinet Office gave the applicant some information, directed him to a number of websites that also held some information but then refused to confirm or deny if it held any more claiming S.23 (Security Forces) and S.24 (National Security). The applicant said it was ‘absurd and an abuse of the Act’ for the Cabinet Office to refuse to confirm or deny that it held the information when it was obvious that it did, since the raid had been in the public eye and the Prime Minister would not have been able to respond to questions about it had the Cabinet Office held no information. The Commissioner agreed with the applicant and said because it was clear the Cabinet Office held information relating to the matter it should have said as much and then if it didn’t feel able to disclose it should have then applied exemptions to it. The ICO also said that it was not good practice to disclose some information and then NCOD if any other information exists. The Cabinet Office has now been ordered to state if it does hold any more information, and if it does to either disclose it or apply any exemptions it feels are relevant.

Plumpton Green

Sussex Police [Ref: 50205686]

- This was an application made on behalf of AsboData, a commercial company that aims to sell information packs to prospective homeowners. Some of the information it intends to sell is gleaned from public authorities using Freedom of Information Act inquiries. In this case it had asked the police for reports of anti-social behaviour in a particular street in the village of Plumpton Green. The police force refused to confirm or deny if it held such information saying that as there were just 15 homes in the street, the area was too small, and to confirm or deny it had such information would be a breach of S.40 (Personal Information). The ICO did not agree and seemed to suggest that 15 homes was not a group small enough to lead to personal data being disclosed. The ICO ordered the police to confirm if such information was held and if so to either disclose it or place the relevant exemptions on it. The decision has now been appealed by Sussex Police to the Information Tribunal.

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.