Press Gazette's submission to the Information Commissioner

Complaint by the Press Gazette regarding FOIA refusal notices issued by police forces

 

1.                       This is a complaint by the Press Gazette under section 50 of the Freedom of Information Act 2000 (‘FOIA’). The complaint concerns requests under FOIA about the scale of police surveillance on journalists.

 

Introduction

 

2.                       The Press Gazette has been conducting investigative journalism into the use by police forces of powers under the Regulation of Investigatory Powers Act 2000 (‘RIPA’) to obtain information from the telephone records of members of the media. This is an issue of the utmost public interest. It engages with serious questions about the freedom of the press, personal privacy, surveillance and the propriety of policing.

 

3.                       By way of background on this issue, we enclose at Tab 1 a report issued by the Interception of Communications Commissioner’s Office (‘IOCCO’) on 4 February 2015 entitled ‘IOCCO inquiry into the use of Chapter 2 of Part 1 of RIPA to identify journalistic sources’. That report post-dated the FOIA request with which this complaint is concerned, but it covers part of the same period as the request.

 

4.                       You will see from section 3 of that report that the inquiry was prompted in part by the Press Gazette’s ‘Save our Sources’ campaign, which was itself prompted by public revelations about the use by police of RIPA powers to investigate journalistic sources. You will see further from section 6 of the report (see for example from paragraph 6.19 onwards) that this is an issue of the utmost gravity.

 

5.                       The IOCCO’s report has delivered a valuable measure of transparency on this issue. The FOIA requests which the present complaint is concerned sought similar information to that contained in section 7 (paragraphs 7.1-7.12) of the IOCCO report. The FOIA requests, however, covered a wider range of activity: whereas the IOCCO report is about the RIPA applications for communications data submitted over a 3-year period where the intention was to investigate the leaking of information to a journalist (see paragraph 4.2 of the report), the Press Gazette wishes to understand the scale on which RIPA powers have been used against journalists for any purposes.

 

6.                       The Press Gazette is in particular concerned to help the public to understand the scale on which RIPA surveillance powers have been used against the media, i.e. the number of occasions on which police forces have been conducting such surveillance on journalists in recent years.

 

7.                       By this complaint to your office, the Press Gazette does not seek information which might reveal the details of any specific cases or police practices, thereby arguably prejudicing policing activity. Instead, it simply seeks to learn about – and inform the public about – the approximate overall scale of police surveillance of journalists’ communications in recent years.

 

8.                       To that end, it has focused on a selection of major police forces and a time period of just under four years. That period is wide enough to ensure that no case-specific details could reasonably be inferred, but narrow enough to ensure that the request does not impose disproportionate burdens on police forces.

 

9.                       The information on the scale of the issue – which is the object of this complaint to your office – would not provide a perfect or holistic picture, but it would add enormously to the public’s understanding of this type of police activity. At least at the time of the requests described below, there was no other way of obtaining this valuable measure of transparency.

 

10.                    The Press Gazette’s attempts to deliver a measure of transparency on this question of scale have met with blanket refusals by police forces. This has included the adoption of ‘neither confirm nor deny’ (‘NCND’) refusals – even where it is already in the public domain that the police force did in fact carry out RIPA surveillance on journalists.

 

11.                    The Press Gazette considers that the disclosure of global figures as to the scale of the issue could not plausibly be said to cause any material harm whatsoever.

 

12.                    As against that, there is extremely weighty public interest in the disclosure of figures indicating the scale on which these surveillance powers have been used against the media. As explained further below, this is an issue of the utmost public interest.

 

13.                    The Press Gazette therefore asks the Information Commissioner to investigate the specific complaints set out below and to issue decision notices ordering the specified police forces both to confirm/deny whether they hold the information and, if held, to disclose that information.

 

The requests and responses

 

14.                    On 11 September 2014, the Press Gazette made the same FOIA request to 46 police forces. In broad terms, the request had two parts. The first was a request for a global figure for each police force:

 

“Between 1 January 2004 and today’s date (11 September 2014), on how many occasions has your police force used the Regulation of Investigatory Powers Act 2000 to obtain information from the telephone records of journalists, news organisations or any other news organisation employees?”

 

15.                    The second was a request for case-by-case details:

 

“Please list all such cases, including: the date, the name of the person (and their position)/ organisation concerned, when their records were obtained, what the purpose of obtaining the information was (i.e. what was the police force looking for) and whether the police force succeeded in obtaining the information.”

 

16.                    The request concluded by saying “if you are unable to answer these questions in full, please provide as much information as possible”.

 

17.                    The majority of the police forces responded to the requests. All of the forces that responded refused to disclose any of the requested information. They relied either on section 12 FOIA (cost of compliance) or on a package of NCND exemptions, in the main under sections 23, 24, 30, 31 and 40 FOIA.

 

18.                    Faced with such a blanket refusal to disclose any of the requested information, the Press Gazette then made a refined request on 17 and 18 November 2014 to 26 police forces, namely: Avon & Somerset; Cambridgeshire; Cheshire; City of London; Devon & Cornwall; Essex; Greater Manchester; Hampshire; Hertfordshire; Kent; Metropolitan Police Service; Norfolk; North Yorkshire; Northamptonshire; Nottinghamshire; South Yorkshire; Staffordshire; Thames Valley; Warwickshire; West Mercia; West Midlands; West Yorkshire; Wiltshire; Police Scotland; Dyfed Powys and Gwent.

 

19.                    For proportionality reasons, the Press Gazette brings this complaint against only a selection of the forces referred to above, namely:  Avon & Somerset; Cambridgeshire; Essex; Kent; Metropolitan Police Service; Nottinghamshire; South Yorkshire; Thames Valley and Warwickshire. This is not to say that it considers the refusals by the remaining forces to be justified. Rather, the Press Gazette recognises the practical difficulties in your office investigating complaints against 26 public authorities in one case.

 

20.                    The refined request was the same as the original request of 11 September 2014, except that the period covered was narrowed to span 1 January 2011 and 17 November 2014, in an express attempt to bring the request within the section 12 cost limit. Again, the refined request had two parts, one concerning a global figure for the specified period and the other concerning case-specific details.

 

21.                    This complaint under section 50 FOIA is about the first part of the refined request, which was as follows:

 

“Between 1 January 2011 and today’s date (17 November 2014), on how many occasions has your police force used the Regulation of Investigatory Powers Act 2000 to obtain information from the telephone records of journalists, news organisations or any other news organisation employees?”

 

22.                    The second part of the refined request again asked for case-by-case details. This part of the request is not being pursued in the present complaint. The Press Gazette asks you to investigate the first part of the request only, i.e. its request for a single number from each police force for the approximately 4-year period covered by the refined request.

 

23.                    The refined request to Nottinghamshire concluded by saying this:

 

“This is under the assumption that the majority of this information has been provided to the Interception of Communications Commissioner. If this is not the case, could you please provide me with the information for the last 216 records (which meets the cost exemption).”

 

24.                    The figure of 216 was proposed on the premise (derived from some of the police forces’ responses to the initial FOIA request) that it would take approximately 5 minutes to review each RIPA record in order to determine whether it came within the description in the first part of the refined request (1080 minutes equating to 18 hours’ work). The Press Gazette considers 5 minutes per record to be a generous – even overly generous – estimate for dealing with the first part of the refined request.

 

25.                    As is clear from the refined request itself (and consistently with the original request), the Press Gazette took care to ensure that its refined request did not fall foul of the section 12 cost limit. It was (and is) concerned to receive as much information as possible within the cost limit about the scale of RIPA surveillance carried out by police against journalists.

 

26.                    All forces, including the 9 forces selected for this complaint, refused to disclose any of the information within the scope of the refined request.

 

27.                    The Press Gazette therefore requested an internal review, noting:

 

"It has been widely reported, disclosed in police documents and will be reported in the Interception of Communications report that police forces have powers under RIPA, so there should be no reason not to confirm or deny that the information is held. I would ask that the FOI be answered in full with redactions where necessary."

 

28.                    In each case, the relevant police force upheld the original decision following an internal review.

 

29.                    The Press Gazette then requested information which the individual forces had already gathered in order to provide to the Interception of Communications Commissioner's Office:  

 

"Could you please provide me with copies of all correspondence between your force and the Interception of Communications Commissioner's Office in relation to its inquiry, published yesterday, into police use of RIPA to find journalistic sources. Please redact names and personal information where necessary."

 

30.                    Press Gazette clarified the request the next day specifying that it included a request for any forms completed by Police Forces for the IOCCO.

 

31.                    This request has also been refused by all Police Forces (other than South Yorkshire who requested clarification)  who have now applied section 14(1) FOIA (vexatious requests) to any FOIA requests on this issue from the Press Gazette – together with other journalists not acting in concert with the Press Gazette. The Press Gazette therefore urges you to help in securing the limited but valuable measure of transparency it seeks on this extremely important issue. It has nowhere else to turn.

 

32.                    Enclosed with this complaint at Tabs 2-10 is a set of relevant correspondence for each of the 9 police forces: the Press Gazette’s original request; the force’s refusal notice; the Press Gazette’s refined request;  the force's refusal notice; the Press Gazette's request for an internal review (other than the Met); the force’s response to the internal review request (other than the Met); the Press Gazette's targeted request; the force's "vexatious request" response under section 14(1) FOIA.

 

33.                    Two preliminary points should be noted. One is that members of the Association of Chief Police Officers (ACPO) have raised in meetings with the Press Gazette, the alleged difficulty in identifying exactly who counts as a “journalist”, citing the existence of blogs and Twitter as sources of news dissemination by a multitude of individuals. The idea suggested is that everyone in this age of technical wonder is capable of falling within the traditional definition of "journalist". This, however, is no barrier to their complying with the request as far as possible. Police forces could respond to the information requests with information in respect of those who are, without a doubt, journalists – for instance journalists engaged with recognisable news organisations, the BBC, the Guardian, the Times etc.  

 

34.                    Second, all forces' "vexatious request" responses (other than Warwickshire), show a concern that Press Gazette's request for information will necessarily encompass occasions where journalists' phone records have been accessed not because they are journalists but because they are somehow involved in wrongdoing:

 

However, the fact remains that journalists, as a collective group, can be caught up in RIPA activity for a myriad of reasons. This does not mean they themselves were necessarily under surveillance, but they could be victims of crime, whose data is captured through police investigation, potential witnesses or innocent parties, who have been contacted by others under investigation, so captured within third party communications data, or they could be criminals themselves, who are being investigated and occupation is irrelevant. The same could be said of any other identifiable group such as teachers, taxi drivers and of course police officers.”

 

35.                    This position seems to ignore the special protection which must be afforded to communications that are subject to an obligation of professional secrecy and professions that handle privileged material (of which journalism is one). The distinction is also irrelevant to Press Gazette's request – those journalists who have been subject to RIPA surveillance ought to be included in the force's response whatever the reason for the surveillance. The public has a very pressing interest in knowing if journalists are routinely subject to RIPA surveillance without any consideration of their profession and their obligations of professional secrecy.

 

36.                    The 9 forces to whom the refined request of 17 or 18 November 2014 was sent are the public authorities against whom this complaint is brought under section 50 FOIA. Despite already constituting a representative group, the Press Gazette acknowledges that this is still a large number of public authorities for a single section 50 complaint. It would be happy to discuss with your office how the workload on your officers might sensibly be minimised consistently with the Press Gazette’s rights under FOIA.

 

37.                    There has been a short period of delay between the final responses of the police forces and the lodging of this complaint. This has been due to the Press Gazette’s attempts to exhaust other FOIA request options and then, when it was clear that all such requests would be met with blanket refusals, in securing pro bono legal assistance in bringing this complaint.

 

The police forces’ grounds for refusal

 

38.                    The Metropolitan Police continued to rely on section 12 FOIA in refusing the refined request in its entirety. Notwithstanding the clear terms of the refined request, the Metropolitan Police made no attempt to disclose as much as possible within the cost limit, or to discuss with the Press Gazette how this might usefully be approached. It is clear to us that, as regards the first part of the refined request, section 12 has no application.

 

39.                    The other forces consistently applied the NCND provisions under sections 23, 24, 30, 31 and 40 FOIA. Plainly, as regards a request for global figures only, section 40 has no application whatsoever. The requested figures are not personal data.

 

40.                    It is equally clear that the other exemptions cannot be relied upon, either by way of NCND or by way of refusal to disclose, as regards the global figures for the nearly 4-year period. The police forces’ cases are premised on disclosure revealing (whether directly or indirectly) something about specific investigations or about policing practises. Such arguments might plausibly be mounted as regards the request for case-specific information (which is not pursued here) but they are utterly implausible as regards the request for the global figure only. Given the period covered, no inferences could reasonably be drawn about any policing matters which should arguably remain secret.

 

41.                    In short, disclosure of the global figures would cause no harm. Even where the requested figures are low, they cannot plausibly be said to reveal anything about specific cases, in light of the 4-year period spanned by the request. Confirmation or denial would be still more anodyne.

 

42.                    The police forces have failed to engage with the discrete parts of the refined request, and have clearly adopted a blanket, class-based stance that no information about RIPA surveillance of the media will be disclosed at all. Such an approach is unlawful: see most recently Department of Health v IC and Lewis [2015] UKUT 159 (AAC).

 

43.                    It is clear that the police forces have adopted a concerted approach recommended by the Association of Chief Police Officers' advice note circulated on 28 October 2014 (Tab 11).

 

44.                    As regards some of the forces, the NCND position is simply untenable, given that it was already in the public domain at the time of the refined request that they had used RIPA surveillance powers to investigate journalists. We enclose a selection of news articles at Tab 12 to demonstrate this point.

 

45.                    Furthermore, the IOCCO report itself contains very significant information on the use of RIPA powers against journalists for a particular defined purpose, namely to investigate journalistic sources. See in particular section 7 of that report. That report was not available at the time of the refined requests, but its publication was plainly envisaged. If the data in section 7 of that report could be published without causing harm, then it seems clear that the information requested by the Press Gazette can also safely be disclosed.

 

46.                    Finally under this head, it is notable that Thames Valley Police have relied upon section 22 FOIA (information intended for future publication). This does not square with the NCND position adopted elsewhere, or with the alleged sensitivity of the underlying data.

 

The public interest in disclosure

 

47.                    Whereas the disclosure of the requested figures would cause no harm at all, it would provide invaluable public transparency on this issue. As indicated at the outset of this letter, the requested figures would not provide the complete picture, but they would provide a much-needed indication of the scale of police surveillance of journalists’ communications.

 

48.                    The public interest in transparency on this issue can hardly be overstated. We enclose a selection of news articles at Tab 12, including in the Press Gazette itself, to illustrate the point. We again refer to the IOCCO report, which makes abundantly clear the pressing imperative of transparent scrutiny of the use of RIPA powers against journalists in particular.

 

49.                    As indicated above, that report covers some of the same ground as part 1 of the refined request. The published information differs, however, from the information sought by the Press Gazette in two material respects. First, whereas the IOCCO report looked specifically at investigations into journalistic sources, the refined request is about RIPA surveillance of journalists’ telephone records more broadly, i.e. for any purposes. Second, the refined request seeks a breakdown of data according to each of the 9 forces. This is important in understanding the comparative frequency with which forces have used such powers against journalists.

 

50.                    The IOCCO report is thus important because it underscores the public interest in this issue and illustrates the sorts of information which can safely be published without causing the sorts of harms which the 9 forces have asserted in this case. The Press Gazette seeks to take that transparency one step further in a way which would cause no harm to policing.

 

The outcome the Press Gazette seeks

 

51.                    We ask that you investigate these police force’s refusals to comply with part 1 of the refined request of 17 or 18 November 2014. We urge you to find that the NCND responses are inapplicable to that specific request.

 

52.                    We then urge you not only to order the forces to confirm or deny whether they hold such information (it is already clear that at least the majority of these forces do hold it), but also to order that they disclose the requested figures if held. If you were only to order them to confirm or deny, they would then go and rely on precisely the same arguments in refusing to disclose the figures they hold. The complaints process would need to start all over again, causing disproportionate delay and burden to no useful end.

 

53.                    Please contact us if we can provide any further input which may assist your investigation. We look forward to hearing from you.

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