Press Leaks (137_15)

Request

In this HMIC document, West Midlands Police discloses that it carried out two press leak investigations between September 2011 and May 2012: https://www.justiceinspectorates.gov.uk/hmic/media/west-midlands-revisiting-police-relationships.pdf.

Please can you give me a brief, one or two sentence, description of these two investigations. Please can you also say whether the Regulation of Investigatory Powers Act was used in these two investigations to obtain telecommunications data from journalists or journalistic organisations.

Please redact information where necessary.

Response

The Freedom of Information Act is a piece of legislation designed to give the public access to information held by public authorities. It exists to make the decisions of those authorities transparent and to keep the populace better informed regarding matters which affect them. It is not designed as a tool to be used on fishing expeditions and although free to the applicant its delivery is not without cost to the authority, and therefore indirectly the taxpayer. Due to the obvious high interest in policing activity the service attracts large volumes of requests which place huge pressures on small teams of individuals charged with ensuring lawful compliance. Common sense dictates that we have to use those resources wisely, and principles have been established within the judicial framework of the legislation to protect authorities when requests are a burden on its staff, have no serious purpose or value or harass and/or distress staff. It is vital that the motives of the requestor are taken into account when considering these issues.

S14 (1) Vexatious

ICO guidance on the subject states:

‘Section 14(1) may be used in a variety of circumstances where a request, or its impact on a public authority, cannot be justified. Whilst public authorities should think carefully before refusing a request as vexatious they should not regard section 14(1) as something which is only to be applied in the most extreme of circumstances.

In cases where the issue is not clear-cut, the key question to ask is whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress. This will usually be a matter of objectively judging the evidence of the impact on the authority and weighing this against any evidence about the purpose and value of the request. The public authority may also take into account the context and history of the request, where this is relevant.’

Our evidence and considerations in applying S14, against this back drop is as follows:

Disproportionate Burden

Firstly, FOI legislation is designed to provide opportunities whereby the public can shine a torch on the decision making and workings of a public authority. However, this does not mean that information has to automatically be disclosed. To do so without some thought process would be reckless and likely to breach other relevant legislation, such as the Data Protection Act (DPA), and in this case, potentially the Regulation of Investigatory Powers Act (RIPA) itself. In addition to this, disclosure of information relating to the police use of surveillance may also lead to damage to investigations, tactics, covert activity and operations. Therefore any requests for relevant data have to be carefully thought through and the relevant exemptions and public interest factors considered.

This is not a simplistic task if the data is requested under FOI. RIPA is one of a series of toolkits available to investigators and it can be used to obtain communications data, carry out surveillance and deploy covert human intelligence sources (CHIS). Its functions require various levels of authority and its use is strictly monitored. It can only be used when there is a criminal investigation, and it must always be proportionate. Although there will always be some central records kept, as there are requirements to do so, in terms of applications the majority of the intimate detail tends to be contained within each individual investigation that it has been used for. There is no ability to simply press a button and the data will appear when the request is focussed on a particular occupation or circumstance in which RIPA has been used.

Therefore FOI requests requiring any level of detail are often refused on cost, as the retrieval of the data would exceed the 18 hour limit. That has often been the case with these requests. But, whenever a request is received, FOI units still have to engage with the information owners, in order to ascertain if the data can be retrieved, as we have a statutory obligation to do so. This immediately places additional workloads and distractions on policing departments whose primary function is to investigate the more complex and serious crimes that we have to deal with.

Post that activity, FOI units then also have to engage with the various stakeholders in disclosure. Again due to the subject area this is likely to be senior detectives and persistent engagement on the same subject begins to impact on their core functions. It is also impactive on FOI units, who are usually operating at maximum capacity in terms of having to service the ever growing number of other requests we receive.

Our standard practice though, and it has been followed here, is that such a burden is seen as necessary in order to service our statutory obligations under FOI. It is therefore rare that any request would be immediately refused under S14, simply because it was complex or required extensive information retrieval and or consultation. In the case of requests for our use of RIPA and journalists we did not do so when the first request was received in September 2014, instead we have adopted an approach whereby applicants have been issued with refusals outlining the cost issues or where that was not applicable, complex exemptions and neither confirm nor deny responses.

Many of these responses attracted negative articles in many national press publications such as:

http://www.pressgazette.co.uk/more-25-police-forces-refuse-reveal-uses-ripa-against-journalists-%E2%80%93-nine-citing-national-security

It is also important to note, that although the first request purely focused on use of RIPA and journalists was received in September 2014, we have always had requests on the more general use of RIPA. As such there is much in the public domain outlining our approach, where headline figures are released, such as:

http://www.westmercia.police.uk/freedom-of-information/disclosure-log/policy-and-procedure-strategy-and-plans/2011-policy-and-procedure-strategy-and-plans-disclosures/foi-2858-monitoring-of-mobile-phone-and-computer-data.html?accept_cookies=1And

https://foi.west-midlands.police.uk/ripa-6614/

Also relevant is the fact that the public portal for making requests, whatdotheyknow.com, reveals 846 requests to various public authorities on the subject of RIPA. Analyses of the responses show that generic data is often disclosed but more focussed low level detail is more often than not refused.

It is therefore fair to say that in addition to individual responses sent to applicants on this subject matter there is a wealth of open source data on the approach to disclosures of RIPA data under FOI, and we would have expected experienced investigative journalists to have had some grasp of the sensitive environment in which these requests were being made into. It is somewhat disappointing if they did not already have a feel for the fact that the initial responses would not include disclosure of the low level data required. Even if they had no concept the initial responses to the early requests often contained lengthy explanations of the issues in a balanced and informative format.

It was also towards the end of 2014 that we began including warnings re continued applications for the same information. This has not prevented us from continuing to receive the requests, often duplicated word for word, or simply asking for the same information in a slightly different manner.

West Midlands Police have received a number of similar requests on the subjects of IOCCO,  RIPA and Journalists ref 4593/14, 5451/14, 5539/14, 5565/14, 5599/14, 81/14, 107/14, 393/15 and 475/15.

The initial requests came on the back of concerns in the world of media, post Leverson, with regard there being potential police misuse of RIPA. Whether these concerns affected the FOI decision making and what they meant in terms of disclosure are covered later under the ‘public interest and value of requests’ section. However, it is relevant here as the issue caused parliament to become involved and that led to select committee recommendations:

http://www.publications.parliament.uk/pa/cm201415/cmselect/cmhaff/711/71103.htm

The recommendations were that all the data be provided to IOCCO, in order that matter could be properly reviewed. The work involved in that, although a separate burden on the relevant police business areas, nevertheless had a direct correlation to the affect on forces in terms of FOI processing as their resources became further restricted with the IOCCO work obviously taking priority.

Overall, we are therefore surprised that applicants, particularly journalists, did not appreciate that firstly repeated requests on the subject would not be likely to invoke a different response and that each one was complex in terms of the processing and the burden on forces. The burden of persistent applications has been clearly articulated and should be obvious to a reasonable person.

Public Interest and the Value of Requests

The application of S14 is not subject to a public interest test. However, the examination of whether there is any real value in a request is pertinent, and uniquely in this case, we feel that does relate to the public interest.

The use of RIPA is a contentious area; it is for that reason that the usage of the legislation is very carefully monitored and subject to independent scrutiny. Although a critical law enforcement tool it is contrary to our expected levels of privacy and ‘state’ monitoring. It has to therefore be carefully managed.

It is not unreasonable to therefore expect focus on the subject, when there is a belief that the rules have in some way been breached. So serious are the issues that it led here to parliamentary intervention as outlined above.

The importance of the public being made aware of the issues, so that proper informed debate could take place was always factored into early decision making when responding to the subject of journalists and the police use of RIPA. It was, and still is, a powerful public interest factor which was not easily overcome.

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.

There will always need to be in such circumstances a strong desire to protect police activity so that investigations are not disrupted, nor is anything placed in the public domain which renders police tactics less effective. The harm this would cause should not be underestimated. RIPA legislation also includes the deployment and usage of CHIS, and we have solemn vows to protect them and their activities. The risk in some of these cases could result in extreme harm befalling individuals and the police level of trust severely eroded. This is not to say that such assets have ever been involved in investigations involving journalists, but any disclosure under FOI simply on the subject of RIPA has wide ranging repercussions.

As serious as these issues are, they have to be balanced against the public right to know, and as clearly articulated non disclosure was not a decision taken lightly, in the relevant cases.

Even though that was relevant in early decision making, the public interest has now changed. IOCCO have now published their report into the subject and the police have not been found substantially wanting in terms of the illegal use of the legislation as being claimed by several journalists. It states at 8.3 ‘Police forces are not randomly trawling communications data relating to journalists in order to identify their sources’. There have been localised individual disclosure of cases, where things did not go as well as we would have hoped, and those disclosures, coupled with IOCCO’s findings, have severely reduced the strength of that public interest in disclosure.

It is primarily this, coupled with unreasonable persistence on the subject that must lead us to now consider there to be little value in the continued application of FOI requests on the subject. The sensitivities on disclosure have not changed, whereas the need to inform the public has been catered for through other mediums. FOI was never designed to enable applicants to continue a campaign or determined pursuit of information when there are concerns over public authority activities, if these activities have been adjudged to be correct and appropriate.

Summary

Requests on the subject of journalists and the police use of RIPA clearly meet the bar set in the definitive case law on protecting public authorities’ resources from unreasonable requests, which was the Upper Tribunal in the case of Information Commissioner vs Devon County Council & Dransfield [2012] UKUT 440 (AAC), (28 January 2013).

Several key indicators were outlined in this case and we feel that evidence exists in these requests which enables us to conclude they are vexatious, under the terms of S14 (1) of the Act. Primarily, the burden on the authority, unreasonable persistence, unfounded accusations (albeit we accept there are no accusations within the requests per se), frequent or overlapping requests and ‘fishing’ for information

For these reasons I consider this request exempt by virtue of Section 14(1) of the Freedom of Information Act. Any future requests on this or similar topics are also likely to be exempt.

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