ACPO told forces in blanket guidance they should use 'national security' excuse to refuse Press Gazette FoIs
ACPO also told police to avoid sharing information given to the interception chief after he called for a RIPA inquiry
- Forces given further guidance on how Press Gazette FoIs could be scuppered.
Documents obtained by Press Gazette reveal that the Association of Chief Police Officers scuppered Freedom of Information requests sent by this title to every police force in the country by issuing blanket guidance.
Last week the Interception of Communications Commissioner told MPs he could see no reason why police forces should not tell Press Gazette whether they had used the Regulation of Investigatory Powers Act to view journalists' phone records "if there was no national security element involved".
All UK police forces were asked by Press Gazette for details on the number of times RIPA has been used to secretly obtain journalists' phone records.
Of the 47 forces contacted, all but two have rejected the request, with 27 citing a cost exemption and 17 claiming disclosure went against the interests of “national security”.
Despite the request being sent on 11 September, and there being a deadline of 20 working days, two forces – Sussex and North Yorkshire – have failed to respond.
On 7 October, Press Gazette asked the police forces that had responded – and rejected – the initial FoI to provide internal email correspondence regarding the request.
Some 19 responses to this request have so far been received, with 14 forces disclosing partly redacted information, and five rejecting the request.
The email disclosures show various interactions between forces and ACPO, with the body telling police not to comply with the original FoI request.
ACPO told forces that it is likely they would be able to reject the request – asking for information on RIPA stretching back ten years – on cost grounds, with the limit set at £450, or 18 hours of working time.
But the body said that if a request could be responded to within the cost limit, the interests on national security should be cited in a rejection.
This is despite the fact the Interception Commissioner – who oversees the use of RIPA by public authorities – said he had received full co-operation from forces when he asked for details of the act being used to obtain phone records and find journalistic sources.
The email disclosures show that ACPO told forces to ensure that the information provided to the interception chief is not shared publicly.
ACPO also advised that forces could sink Press Gazette's FoI attempts to find out more about the use of RIPA against journalists by compiling different FoIs together in order to create a cost exemption.
Six forces – Cambridgeshire, Cheshire, City of London, Essex, Greater Manchester and West Mercia – have so far employed this tactic and are refusing to accept Press Gazette FoIs on RIPA.
Five forces have declined to disclose internal email discussions on Press Gazette's initial RIPA FoI. They are:
- City of London Police, which placed this FoI alongside others in order to find a cost exemption
- Lincolnshire Police, which cited the Data Protection Act. It said that Press Gazette news editor William Turvill would have to submit a Subject Access Request in order to obtain the emails his request was discussed in
- Northamptonshire Police, which cited the same DPA exemption
- British Transport Police, which cited a cost exemption
- Police Scotland, which said disclosure could be "prejudicial to the effective conduct of public affairs" (see below).
Police Scotland said that, if disclosed, "frank exchange of views" when handling FoIs over email – which it said was necessary because the force covers the whole country – "would be substantially inhibited".
The response said that while there is a public interest in "transparency", there is also "significant public interest in ensuring these core policing activities are not prejudiced and, on balance, I consider that the public interest lies in favour of withholding the information you have requested in this case".
Of the forces to disclose emails, Kent Police and Cleveland Police provided the most information, with ACPO emails included.
Kent Police discloses ACPO guidance
Kent Police's FoI response disclosed the original emails sent by ACPO to forces on 11 September – the day the original FoI was submitted.
Guidance was then issued on 30 September, saying that if a cost rejection – which is “likely” – cannot be justified, forces should cite national security.
Referring to the fact the Interception Commissioner inquiry required forces to disclose their use of RIPA against journalists, the 30 September ACPO guidance said: “Clearly it is too early to make any further comment on whether the police have carried out such activity until the IOCC have completed their independent regulatory review and made comment.
“It is for this reason that care must be taken in not revealing police operational activity, despite the recent revelations by the MPS [Met Police on Plebgate leak probe].”
It said that while “every effort should be made to release information under FoI”, the disclosures being requested could “undermine ongoing investigations, reveal policing techniques, risk the identification of individuals, the possibility of revealing involvement of any exempt bodies and the risk in undermining National Security”.
ACPO said the FoI is “likely” to be exempt on cost grounds, because of the need to manually search through RIPA records, and that this therefore would exempt the whole request: “As you are aware once one part of the request exceeds cost the whole request is excess cost and there is no obligation to answer any part of the request.”
But ACPO added under the headline “If you are able to retrieve the information please see below": “The whole request is asking for information which falls under Part I Chapter II of RIPA inasmuch as it is asking for acquisition of communications data (information from communications service providers relating to communications). Therefore in this case the legal constraints of Part 1 Chapter I of RIPA are not relevant.
“Although the total number of all requests made under RIPA at force level, by financial years, has been asked previously and a total has been disclosed together with a partial NCND [redaction] case nos 1360/12 and 245/14 refer.
“In this case, because the request asks specifically about any investigations relating to journalist’s etc, the request will require a full Neither Confirm Nor Deny stance by virtue of Section 23(5) Information supplied by, or concerning, certain Security Bodies; Section 24(2) National Security; Section 30(3) Investigations; Section 31(3) Law Enforcement and Section 40(5) Personal Information.”
Further internal Kent Police emails (below) show that a member of the Serious Crime Directorate, who was asked for advice on the RIPA FoI, said he "really wouldn't know where to start" with the request.
He added: “I certainly can’t recall anything in the last 18 months since I have been in post from the top of my head, where we have obtained data under RIPA under the request the applicant has made.”
Kent Police has admitted that in November 2012 it used RIPA to obtain the phone records of two journalists working for The Mail on Sunday.
Cleveland Police discloses further ACPO guidance
Cleveland Police's response included further guidance from ACPO, including on how no forces should provide Press Gazette with information provided to the Interception Commissioner and how piling different FoIs together could be used to find a cost exemption.
One email from ACPO's FoI Central Referral Unit said: "National FoI advice has been issued requesting forces to NCND such activity although we are aware that at least two forces (MPS and Kent) have previously publicly avowed that they have carried out at least one such investigation.
"However most forces are now reporting that Sec 12 applies due to a requirement to physically check each RIPA application to assess whether it concerned a journalist or not. Some forces are even indicating that each investigation file would need to be checked in situations where such detail was not contained on the actual RIPA application.
"Of course, the problem will now be with this inquiry, that forces will hold the relevant data having retrieved it for IOCCO purposes and care must be taken in not releasing the data in response to any future requests as there is a formal publication process now in place with the IOCCO and the Prime Minister's office."
Referring to another FoI sent by Press Gazette asking forces for general figures on the use of RIPA over the last decade, ACPO said: "For requests submitted by the same applicant these can be aggregated together for cost purposes. For any force where Section 12 is relevant we are happy for you to issue a refusal notice and provide an explanation as to why cost is relevant."
ACPO guidance on Press Gazette’s FoI asking for internal emails discussing the initial RIPA FoI stated that this should not be “aggregated” with other requests – although the City of London force did.
It said that it could potentially be rejected on cost grounds – as British Transport Police did – and also discussed whether its own previous guidance should be included.
It said: “We have debated long and hard as to whether our advice to you is captured or not. On the fact of it, it could be argued as it was sent to the force not within it, but there will be cases whereby the advice was further circulated, meaning it then became captured.” This is followed by a redacted space.
The response from Cambridgeshire Police revealed that head of covert operations Tom Mackinnon has dealt with the vast majority of RIPA applications over the last 22 months.
Mackinnon said in an email to a colleague that he could not “recall a single such application that was related to journalism or an investigation into a journalist” during that time.
But he added: “It is possible that we have accessed the phone records of a journalist in the pursuit of the investigation of a crime with which they are associated but it is unlikely that their profession would be included in the application as we do not base decisions upon their occupations.”
The Metropolitan Police has returned a heavily-redacted document (one page below). It did, however, reveal in the request, in the "limited knowledge of Communications data" of detective superintendent Frankie Flood, that "this is something we would answer on the same basis as all the other RIPA type requests for specific figures".
Norfolk Police and Suffolk Police handle FoIs together. Their response included a member of their joint Comms Data Investigation Unit saying that it is "almost taboo" to obtain the phone records of journalists under RIPA. They also said they were "fairly certain" this had never taken place. However, this email came before Suffolk Police admitted to Press Gazette that it had used RIPA to secretly obtain the phone records of Ipswich Star journalist Mark Bulstrode.
The email said: "Thank you for this, you are right; the only possible way that we could actually truly answer this request would be to physically read all approximately 10,000 applications that we have had during that period.
"However, anecdotally; I am fairly certain that we have never made a request for that information from journalists or news organisations, if we have it would be in very few cases as it is such a sensitive thing to do and almost taboo.
"Unless they have committed a criminal act we would not be able to request anything about them, simply being a journalist would not be a reason and it fact we could be prosecuted if we committed a breach."
In addition, a member of the FoI team said they were "not sure whether we would necessarily want to disclose the number of RIPA authorisations, just thinking of old comms requests".
A member of Humberside Police's Covert Authorities Bureau described the original FoI as a "nice and easy one", though a second sentence presumably explaining this sentence is half-redacted.
Greater Manchester Police revealed emails discussing how difficult searching for the original FoI would be in its system.
A Hertfordshire Police representative said it would be "impossible" to answer the request, citing the fact the force makes more than 3,000 requests a year.
Bedfordshire Police and Derbyshire Police released a short and heavily redacted email trail.
Nottinghamshire Police, West Midlands Police, Devon and Cornwall Police and West Mercia Police also provided responses.
Press Gazette made the internal email FoI after being advised to do so by journalist Garrick Alder.