Press Gazette has formally challenged the police refusal to disclose information about the seizure of journalistic phone records.
A team of lawyers working on a pro-bono basis have complained to the Information Commissioner about police forces' handling of Press Gazette Freedom of Information requests.
The 3,000-word appeal document, sent to the Information Commissioner's Office (ICO) last night, calls for nine forces to reveal how many times they accessed journalists' phone records between 2011 and 2014.
The challenge also takes issue with forces branding Press Gazette FoI questions on this issue as "vexatious".
Every police force in the UK has rejected Press Gazette FoIs about the use of the Regulation of Investigatory Powers Act to view journalists' call records.
The submission tells the ICO: "The public interest in transparency on this issue can hardly be overstated."
Representing Press Gazette is Caroline Kean, a partner and head of litigation at Wiggin LLP, Eileen Weinert, an assistant solicitor at Wiggin, and barrister Robin Hopkins, who specialises in information law at 11KBW.
Kean and Weinert said in a statement: "The need to protect the confidentiality of journalistic sources is crucial to safeguard the free press in a democratic society.
"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 and we are delighted to be assisting the Press Gazette in this complaint to the Information Commissioner."
On 11 September 2014, shortly after it emerged that the Metropolitan Police had secretly obtained the phone records of The Sun as part of its Plebgate leak investigation, Press Gazette's first FoI was submitted. It asked:
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 to obtain information from the telephone records of journalists, news organisations or any other news organisation employees?
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.
If you are unable to answer to answer these questions in full, please provide as much information as possible.
No police forces answered these questions, with 29 saying they could not afford to answer under FoI cost restrictions and 16 refusing to confirm or deny whether they held the information. Those who issued the Neither Confirm Nor Deny (NCND) responses said that disclosure could undermine "national security". Sussex Police has not answered this FoI despite it being prompted on several occasions.
Later in the year, the forces that issued NCND responses were asked to reconsider and conduct internal reviews on their decisions. All the original decisions were upheld.
In mid-November, Press Gazette sought to narrow the request – cutting the time span from 2004-2014 to 2011-2014 – in order to enable the 29 other forces to be able to respond.
Despite the fact that similar information was provided to the Interception of Communications Commissioner – who called for all police forces to provide information on their use of RIPA to find journalistic sources over the three years to autumn 2014 – around this time, 13 continued to reject the request on cost grounds. And 12 of the forces used similar "security" exemptions to the 16 who refused to confirm or deny the first FoI.
On 5 February, after the Interception of Communications Commissioner's Office (IOCCO) published the results of its inquiry into police use of RIPA to find journalistic sources. Press Gazette asked all forces to provide the material given to IOCCO under FoI. Every force that responded – three out of 46 have failed to do so – accused Press Gazette of being "vexatious".
The three FoI requests above are those at the centre of Press Gazette's submission to the Information Commissioner.
In order not to overburden the ICO, the challenge specifically concerns rejections made by nine forces: Avon and Somerset, Cambridgeshire, Essex, Kent, the Met, Nottinghamshire, South Yorkshire, Thames Valley and Warwickshire.
It is seeking the answer to the following question: “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?”
The document notes that the IOCCO report into police use of RIPA to obtain journalistic records "delivered a valuable measure of transparency on this issue".
But Press Gazette is seeking further information to find out which forces have used RIPA in this way over the last three years. The request also asks for information on all RIPA applications for journalistic records – not just those relating to requests made specifically for the purpose of finding sources. The submission says: "The Press Gazette wishes to understand the scale on which RIPA powers have been used against journalists for any purposes.
"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.
"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."
Because the request is broad, the submission argues it will not reveal any specific details and will not "burden" forces. But the information would "add enormously to the public’s understanding of this type of police activity".
It said: "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.
"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."
In a number of "vexatious" rejections to Press Gazette FoIs, forces note that one of the difficulties in answering is that sometimes journalists' phone records will be accessed for non-journalistic reasons – for example, if they are the victim of a crime.
However, the complaint contends that this information is still important. It said: "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."
Arguing the public interest for disclosure of the information, the submission says the release of the information "would cause no harm at all" and would "provide invaluable public transparency on this issue".
It said: "The public interest in transparency on this issue can hardly be overstated."
In March, the Government changed the law to ensure that police requests for journalists' phone records require the approval of a judge. This was a stop-gap measure, and permanent reform of the Regulation of Investigatory Powers Act has been promised.
Publishers and journalism groups remain concerned that there is no prior notification for journalists of phone records requests, which are made direct to telecoms providers.