UK FOIA requests - Spy Blog

We seem to be going down the same path of deliberate delay and obstruction, with the Home Office breaching the spirit of the Freedom of Information Act 2000, as before.

Remember, all that we are asking to be published is the bare minimum laid down in the text of the Terrorism Act 200 sections 44 and 45 and 46 i.e. the time and duration and geographical location of each Authorisation to suspend the normal rule of law regarding Stop and Search Without Reasonable Suspicion.

Given the recent revelations of thousands of clerical errors with the Authorisations, rendering thousands of Stops and Searches illegal and the Conservative / Liberal Democrat coalition policy changes and promises to review this legislation, surely the Public Interest is now even more in favour of full publication.

The unnecessary secrecy appears to have been used for political coverup purposes rather than for any demonstrable national security benefit.

Office for Security and Counter Terrorism
2 Marsham Street, London SW1P 4DF
E-mail: OSCTFOI@homeoffice.x.gsi.gov.uk Website: www.homeoffice.gov.uk

{email address]

[name]

FOI Reference: [nnnnn]
4 August 2010

Dear [name]

I am writing in relation to your information request dated 11 June 2010 and further to my letter of 6 July 2010. I can confirm receipt of your email dated 6 July 2010.

In keeping with the decision of the ICO (ref: FS50198733) we need to consider fully the use of the exemption in section 24 (1) of the Act, which relates to information supplied by or relating to national security. I have noted the point you have made about section 31 in your email of 6 July. As you are aware, however, the ICO did not consider use of the exemption at section 31(1) (a), (b) and (c). We will still need to address the use of this exemption when responding to your request. To take account of the points raised in your most recent email we need more time and will need a further extension. We now aim to let you have a full response by 2 September 2010.

I would like to take this opportunity to apologise for the delay in replying to your request and assure that we will respond as quickly as possible.

Should you have any queries about the handling of your information request then please do not hesitate to contact me quoting reference [nnnnn]

Yours sincerely

[name of civil servant]

A reminder to the Home Office, from the previous ICO Decision Notice:

69. Although they do not form part of this Decision Notice the Commissioner wishes to highlight the following matters of concern.

[...]

Information Notice

75. During the course of his investigation, the Commissioner has encountered considerable delay on account of the Home Office's reluctance to meet the timescales for response set out in his letters. The delays were such that the Commissioner found it necessary to issue an Information Notice in order to obtain details relevant to his investigation.

76. Accordingly, the Commissioner does not consider the Home Office's approach to this case to be particularly co-operative, or within the spirit of the Act. As such he will be monitoring the authority's future engagement with the ICO and would expect to see improvements in this regard.

See ICO Decision Notice FS50198733 - Home Office: Terrorism Act 2000 s44 stop and search Authorisations

[Home Office logo]

Office for Security and Counter Terrorism
2 Marsham Street, London SW1P 4DF
E-mail: OSCTFOI@homeoffice.x.gsi.gov.uk Website: www.homeoffice.gov.uk

{email address]#ho_foia@nym.hush.com

[XXXX]

FOI Reference: nnnnn

6 July 2010

Dear [XXXX],

Thank you for your e-mail of 11 June 2010, in which you ask for details of stop and search authorisations under Section 44 of the Terrorism Act 2000. Your request is being handled as a request for information under the Freedom of Information Act 2000.

We are considering your request. Although the Act carries a presumption in favour of disclosure, it provides exemptions which may be used to withhold information in specified circumstances. Some of these exemptions, referred to as 'qualified exemptions', are subject to a public interest test. This test is used to balance the public interest in disclosure against the public interest in favour of withholding the information. The Act allows us to exceed the 20 working day response target where we need to consider the public interest test fully.

The information which you have requested is being considered under the exemptions in sections 24 and 31 of the Act, which relate to information supplied by or relating to national security and law enforcement. These are qualified exemptions and to consider the public interest test fully we need to extend the 20 working day response period. We now aim to let you have a full response by 4 August 2010.

If you have any questions about the handling of your information request then please do not hesitate to contact us quoting the reference nnnn

Yours sincerely,

{name of civil servant]

N.B. our FOIA request re-emphasised that we are not requesting any information from the background or tactical intelligence, which may have been submitted to the Home Secretary in order to justify the supposedly temporary suspension of the normal laws on stop and search in a particular area, so there does not need to be any "public interest test" under the FOIA section 24 national security exemption.

Such background intelligence may well be necessary to make a reasonable decision as to whether to grant or deny an Application by a Chief Constable for Section 44 extraordinary powers, but that is not mentioned in the wording of the Terrorism Act 2000,. This Act only specifies that the Application has to include time, duration and location data and that it has to requested by someone of the appropriate rank i.e. Chief Constable / Commissioner of Police or their Deputies.

Surely, since hundreds or thousands of people may have been illegally stopped and searched, not just once or twice, but dozens of times, as the Home Office has now admitted, the public interest balance in favour of disclosure must also apply under the FOIA section 31 law enforcement exemption.

See:.

Ministerial Statement to the House of Lords:
Terrorism: Stop and Search
10 June 2010

by Baroness Neville-Jones the Minister of State (Security) at the Home Office,

http://www.theyworkforyou.com/wms/?id=2010-06-10a.66.0&s=speaker%3A13936#g66.1
HL Deb, 10 June 2010, c66WS

http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/100610-wms0004.htm#10061034000361

The number of such stupid errors would have been vastly reduced or even totally eliminated, if the Home Office had published the times, durations and location of each application of the extraordinary, supposedly temporary, section 44 stop and search without reasonable cause powers., simply because members of the public, the press and the lower rank and file of of the Police forces themselves, would have acted as a check on the handful of secretive slap dash bureaucrats and politicians who messed things up, over and over again.

If they had been open and transparent by publishing the information requested in our FOIA request, the European Court of Human Rights in Strasbourg could not have ruled against the Labour Government and the Home Office, in the CASE OF GILLAN AND QUINTON v. THE UNITED KINGDOM:

87. In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, "in accordance with the law" and it follows that there has been a violation of Article 8 of the Convention.

If the Government had been open and transparent about the supposedly temporary, strictly time and location limited Terrorism Act 2000 section 44 stop and search without reasonable suspicion powers for Police Constables in Uniform, then they would not have got into the mess which was revealed by Baroness Neville-Jones on Thursday.

In the light of the even greater public interest in disclosure, Spy Blog has repeated the FOIA request of 14th November 2007.

There must be a suspicion that the previous FOIA request was refused, not on the grounds of national security, as claimed, but to cover up administrative incompetence.

Home Office
Direct Communications Unit
2 Marsham Street
London SW1P 4DF

E-mail: To: FOIrequests@homeoffice.gsi.gov.uk
cc: public.enquiries@homeoffice.gsi.gov.uk
cc: info.access@homeoffice.gsi.gov.uk

Friday 11th June 2010

FOIA request: Terrorism Act 2000 section 44 stop and search *without* reasonable cause Authorisations (time, date, geographical extent and Ministerial authorisation only)

Dear Sirs,

Under the Freedom of Information Act 2000, please disclose the following information:

Regarding the Terrorism Act 2000 stop and search *without* reasonable cause legal power for a Constable in Uniform:

Section 44 Authorisations
http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000011_en_5#pt5-b2-l1g44

and

Section 46 Duration of authorisation
http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000011_en_5#pt5-b2-l1g46

1) Authorisations which the Secretary of State has been informed of under Section 46 (3)

2) Authorisations which have not been confirmed by the Secretary of State and which have lapsed under Section 46 (4)

3) Authorisations modified by the Secretary of State under Section 46 (5)

4) Authorisations which have been cancelled by the Secretary of State under Section 46 (6)

5) Authorisations renewed in writing under Section 46 (7)

6) Given the numerous administrative failures and the thousands of illegal searches, mentioned in the Ministerial Statement of 10th June 2010 by Baroness Neville-Jones (HL Deb, 10 June 2010, c66WS), I also want to see exactly which Minister signed which Authorisation and when.

Please disclose all of the Authorisations since the Terrorism Act 2000 came into force until today Friday 11th June 2010.

If that is deemed to be too many Authorisations, then please advise how this FOIA request may best be modified, according to your duty under the Freedom of Information Act 2000 Section 16 Duty to provide advice and assistance.

N.B. as per my previous Freedom of Information Act 2000 request for the same information, submitted back on the 14th November 2007 (see the ICO Decision Notice attached), I am *not* requesting any of the background intelligence material produced to support the granting of such an Authorisation.

I am *only* interested in the time, date, duration and geographical extent (either in words or on a map or plan etc.) of each Authorisation made under section 44 of the the Terrorism Act 2000.

-----------------------------------

ICO Decision Notice on my previous FOIA request.

For your information, I have attached a (.pdf) copy of the Decision Notice Reference: FS50198733 of the 8th February 2010.

http://www.ico.gov.uk/upload/documents/decisionnotices/2010/fs_50198733%20.pdf

There must not be a repeat of the delays which caused the Information Commissioner to issue an Information Notice, breach of which amounts to a Contempt of Court by the individuals responsible:

"63. The information request in this case was made on 14 November 2007. The public authority failed to comply with section 1(1) until 8 February 2008. In failing to provide a response compliant with section 1(1) within 20 working days of receipt of the request, the public authority breached section 10(1).

[...]

Information Notice

75. During the course of his investigation, the Commissioner has encountered considerable delay on account of the Home Office's reluctance to meet the timescales for response set out in his letters. The delays were such that the Commissioner found it necessary to issue an Information Notice in order to obtain details relevant to his investigation.

76. Accordingly, the Commissioner does not consider the Home Office's approach to this case to be particularly co-operative, or within the spirit of the Act. As such he will be monitoring the authority's future engagement with the ICO and would expect to see improvements in this regard."

-------------------

Ministerial Statement to the House of Lords:
Terrorism: Stop and Search
10 June 2010

by Baroness Neville-Jones the Minister of State (Security) at the Home Office,

http://www.theyworkforyou.com/wms/?id=2010-06-10a.66.0&s=speaker%3A13936#g66.1
HL Deb, 10 June 2010, c66WS

http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/100610-wms0004.htm#10061034000361

--------------------

Please provide the requested information, ideally by publishing it on your public world wide website, or alternatively by email.

Ideally this should *not* be in the form of a "copy and paste" locked Adobe .pdf file, or similar, attachment.

In the unlikely event that this information is not already available in a standard electronic format, then please explain the reasons why, when you provide the information in another format.

If you are proposing to make a charge for providing the information requested, please provide full details in advance, together with an explanation of any proposed charge.

If you decide to withhold any of the information requested, you should clearly explain why you have done so in your response, by reference to the Freedom of Information Act 2000 legislation.

If your decision to withhold is based upon an evaluation of the Public Interest, then you should clearly explain which public interests you have considered and why you have decided that the public interest in maintaining the exception(s) outweighs the public interest in releasing the information.

I look forward to receiving the information requested as soon as possible and in any event, within the statutory 20 working days from receipt of this email i.e. no later than Wednesday 7th July 2010

Yours Sincerely,

Some progress at last, "only" 2 years after the original Freedom of Information Act 2000 request made back on 28th January 2008:

Subject: Your Freedom of Information Request 1075/08
From: [name of HMRC official] [name]@hmrc.gsi.gov.uk
To: [email]
Date: Mon, 01 Mar 2010 18:07:13 +0100

<< Information to be disclosed.pdf >>

Dear [name]

I am writing with reference to your Freedom of Information request and the Information Commissioner's Decision Notice issued on 25 January 2010. In accordance with Paragraph 92 of that Notice, I attach the information which HMRC is required to disclose to you. In order to provide some additional clarification and context, HMRC has added some text in square brackets to the information. With regard to the information disclosed in response to question 9, it may help if I further clarify that the complete NIRS record is subject to restricted access for the period when an individual is in a special category but only the current tax records would be subject to restricted access for that same period. I hope this is helpful.

Yours sincerely

[name of HMRC official]

Here is the new disclosure, all of which could easily have been supplied in response to the original request i.e. in February 2008

Categories and Numbers, excluding those subject to the s23 exemption or the s44
exemption

As at April 2008

Class of individual	Number of records*
HMRC staff [for reasons of propriety]	95,000
Certain [e.g. criminal justice] investigators in Govt depts; certain members of the police and judiciary	25,600
Protected for personal reasons: eg transsexuals,Gender re-assigned cases, domestic abuse and witness protection cases	24,500
Ministers of the Crown, Elected representatives, researchers and certain former Elected representatives	8,120

^* We believe that in the majority of cases the number of records will equate to the number of individuals in a category, but there is a small possibility that they may include more than one record for a few individuals.

3) Who exactly makes the decision to put someone into one of these special categories ?

Decisions are made by HMRC managers with a responsibility for handling records subject to additional safeguards, working within a policy framework agreed at Director General level. [The policy framework applies additional safeguards to HMRC staff records for reasons of propriety and to the records of those whose employment or personal circumstances warrant additional protection.]

This appears to be a new or amended policy, possibly as a result of this very FOIA request.

The original FOIA response in March 2008 plead ignorance, and did not seem to know who was currently in charge of the "Special Categories" policy:

"This is a long-established HMRC (and former Inland Revenue) practice and we do not hold recorded information about its origins. However, such a practice would have received authorisation at senior level."

4) When, if ever, is an individual removed from such a special category?

In summary when the risk that gave rise to additional safeguards ceases, for example, when an individual leaves a particular employment or their personal circumstances change.

Where an employee ceases to work for a special employer and takes up non-special employment he or she will lose their additional protection. Similarly where a vulnerable individual is no longer at an additional significant personal risk the protection of their record will be returned to the normal level of security. However, in addition to responding to individual changes of circumstances, particular employers or groups also need to be reviewed from time to time to decide whether they justify additional protection.

In the case of individuals at risk the head of SSD (Special Section D) [the HMRC manager with responsibility for the records] marks cases for b/f to review their status and whether they should continue to be restricted or returned to normal levels of security. B/f time determined on a case by case basis.

5) Does a special category extend to an individual's family as well?

Claims to tax credits are made jointly by couples who are married or living together. So if the circumstances of one of the partners warrant additional safeguards, it follows that the whole record will be subject to them. For other purposes, it would be rare for family members to be included although this might exceptionally happen in witness protection cases.

9) What about the previous 24 year tax record history of an individual, before they became a "celebrity" or politician etc?

Tax records are not retained for the period suggested.

That is unbelievable. The Department for Work and Pensions Longitudinal Study (WPLS) holds up to 24 (perhaps actually 25) years of data taken from tax (HMRC) and benefits (DWP) datasets, both full (with names and addresses) and semi- anonymised (without names and addresses).

See DWP-IR Longitudinal Study Ethics Committee etc

The most interesting nugget of information revealed in the original HMRC response (back in March 2008) to this FOIA request (January 2008), was that the "Special Category" tax records are not handed over to the Department for Work and Pensions Longitudinal Study (WPLS), implying that "Special Category" people are not subjected to the same anti-fraud measures which the 1 year WPLS data set (with names and addresses) is used for.

But in any event, the additional safeguards attach to the current tax record for the period for which the risk exists.

For National Insurance purposes, NIRs holds a full record of employments and pay and tax and provides more information about an individual. It follows therefore that the full National Insurance history is subject to restricted access if a case is regarded as sensitive.

[The records of "celebrities" are not protected by additional safeguards.]

Note that by far the largest group, larger than all the rest combined, to whom this "Special Category" status of extra "safeguards" for their tax records is accorded, are HMRC staff themselves !

What exactly does [for reasons of propriety] mean ?

Some possible further FOIA request questions:

• Why are "researchers" of Elected Representatives given "special category" status". Presumably the context of the use of that term implies political or parliamentary "researchers", employed by Elected Representatives, presumably Members of Parliament (646 MPs) at the Westminster House of Commons, rather than, say, biomedical researchers who are targets for harassment or violence by animal extremists.

• Does "Elected Representatives" include Members of the European Parliament (72 UK MEPs 741 in total), Members of the Scottish Parliament (129 MSPs), Assembly Members (60 AMs) of the National Assembly for Wales and the Members of the Legislative Assembly (108 MLAs) in Northern Ireland Assembly ? Does it also cover County, Local and Parish Council Elected Members ?

• The figure of 8,120 seems very high for just current Elected representatives since the figure above add up to only 1684 (only 1015, if only UK MEPs are counted) and "certain former" Elected Representatives.

• What about non-elected Representatives i.e. Members of the House of Lords ?

  The various Labour Lords who have been appointed as unelected, unaccountable Ministers, do seem to qualify.

• Will HMRC reveal the list of "Special Employers", in general terms ?

• It is noticeable that the vast majority of Military or Police or Prison Officer personnel are not given any "Special category" protection, even though their names, addresses and family details are of significant interest to terrorist and foreign intelligence agencies and serious organised criminal gangs etc.

• Who is the current "head of SSD (Special Section D)", and what are his / her contact details ?

• Is there a secure and confidential means of contacting Special Section D, without involving the main HMRC postal, telephone and internet infrastructure ?

  
  

The Information Commissioner has now issued a Decision Notice FS50216168 dated 25th January 2010::

6. The complainant wrote to HM Revenue and Customs (HMRC) on 28 January 2008 requesting information about the tax categories of individuals for whom security is a higher priority.

'Regarding the story in the Daily Telegraph newspaper of Saturday 26 January 2008 about the security, privacy and confidentiality of tax returns and the Parliamentary Oral Answer given by the Financial Secretary to HM Treasury

'Regarding the story in the Daily Telegraph newspaper of Saturday 26 January 2008 about the security, privacy and confidentiality of tax returns and the Parliamentary Oral Answer given by the Financial Secretary to HM Treasury

1) Please list these special "categories of individual for whom security is a higher priority"
2) Approximately how many people are in each special category?
3)Who exactly makes the decision to to put someone into one of these special categories ?
4) When, if ever, is an individual removed from such a special category?
5) Does a special category extend to an individual's family as well?
6) How long has this policy of special categories been in place ?
7) Who exactly authorised this special category policy?
8) How exactly does adding an extra digit to a tax code or other special markings to a paper tax return, make it less of a target for human snooping or electronic sniffing of the data once it is in digital form? Surely this contravenes the well established security principles for handling 'sensitive' data whilst it is sharing common office or electronic network infrastructure ie that it should be indistinguishable from the rest of the data or documents, to reduce the temptation to casual snoopers ?
9) What about the previous 24 year tax record history of an individual before they become a 'celebrity' or politician etc?
10) Are these special category tax records included in the datasets handed over, through the statutory gateway, to the DWP Longitudinal Study? http://www.dwp.gov.uk/asd/longitudinal_study/ic_longitudinal_study.asp
11) What is the approximate annual cost of the extra infrastructure and personnel resources needed to handle these special categories?'

This has resulted in:

The Decision

91. The Commissioner's decision is that the public authority did not deal with the request for information in accordance with the Act:
• it breached section 1 (1 )(b) by not providing the complainant with the requested information wrongly withheld under sections 36 and 38;
• it breached section 10(1) by not confirming to the complainant within the statutory timescale that it held the requested information;
• it breached section 10(1) by not providing the complainant with information within the statutory timescale;
• it breached section 17(1) by not providing the complainant with a valid refusal notice within the statutory timescale; and
• it breached section 17(1)(b) and (c) by failing to specify and explain exemptions it later relied on.

Steps Required

---

92 The Commissioner requires the public authority to take the following steps to ensure compliance with the Act:

• disclose the list of special categories not exempt by virtue of section 23 or 44;
• disclose the number of people in each special category not exempt by virtue of section 23 or 44:
• disclose the name of the decision maker who makes the decision to put someone in one of the special categories; and
• disclose the information withheld in relation to questions 4, 5 and 9.

93. The public authority must take the steps required by this notice within 35 calendar days of the date of this notice.

Will Her Majesty's Revenue and Customs disclose the requested information,as ordered to by the Information Commissioner, or will they waste public money and our time, by trying to appeal ?

Given the recent European Court of Human Rights judgement about the controversial and widely abused Terrorism Act 2000 section 44 "stop and search" without "reasonable suspicion" legal powers, and, without any measurable positive effect on terrorism, we think that the Home Office and the Information Commissioner's Office are both very wrong in their decision to refuse our modest Freedom of Information Act request.

See European Court of Human Rights Judgment against the Terrorism Act 2000 section 44 stop and search without reasonable cause powers

More comments on this Decision Notice soon, when we have some feedback from our expert friends.

Reference: FS50198733

Information Commissioner's Office

Freedom of Information Act 2000 (Section 50)
Decision Notice Date: 8 February 2010

Public Authority: Address:
The Home Office
Seacote Building
2 Marsham Street
London
SW1P4DF

[...]

Summary

---

The complainant requested copies of all Authorisations for the power to stop and search issued under the Terrorism Act 2000. During the investigation, the request was refined as being for certain information contained within those Authorisations.

The public authority refused to release any information citing the exemptions at section
23 (Information supplied by or relating to, bodies dealing with security matters), section
24 (National security) and section 31 (Law enforcement). The complainant did not contest any information withheld by virtue of section 23.

The Commissioner's decision is that the exemption at section 24(1) is engaged and that the public interest in maintaining the exemption outweighs the public interest in disclosure. He finds that this exemption applies to all the remaining information sought by the complainant so the exemption at section 31 has not been further considered.

The Commissioner has also identified procedural breaches which are outlined in the Notice below. The complaint is therefore partly upheld.

[...]

59. As cited in paragraph 34 above, "... 'national security' means the security of the United Kingdom and its people". The Commissioner is of the opinion that releasing the requested information would cause specific and real threats to national security. He believes that the information could be used by terrorists to support and influence their activity. He therefore believes that any advantages gained by further informing the public would be significantly outweighed by the factors for protecting the public by maintaining the exemption. The complaint is therefore not upheld.

60. As the Commissioner finds that all of the remaining requested information (to
which section 23 does not apply) is exempt by virtue of section 24(1) he has not gone on to consider the exemption at section 31(1 )(a), (b) and (c).

[..]

The decision

---

66. The Commissioner's decision is that the public authority dealt with the following elements of the request in accordance with the requirements of the Act:

• the requested information was properly withheld under the exemption at section 24(1) of the Act.

67. However, the Commissioner has also decided that the following elements of the request were not dealt with in accordance with the Act:

• in failing to provide a response compliant with section 1(1 )(a) within 20 working days of receipt of the request, the public authority breached section 10(1);
• in exceeding the statutory time limit for providing a response the public authority breached section 17(1).

Steps required

---

68. The Commissioner requires no steps to be taken.

Other matters

---

69. Although they do not form part of this Decision Notice the Commissioner wishes to highlight the following matters of concern.

[...]

Information Notice

75. During the course of his investigation, the Commissioner has encountered considerable delay on account of the Home Office's reluctance to meet the timescales for response set out in his letters. The delays were such that the Commissioner found it necessary to issue an Information Notice in order to obtain details relevant to his investigation.

76. Accordingly, the Commissioner does not consider the Home Office's approach to this case to be particularly co-operative, or within the spirit of the Act. As such he will be monitoring the authority's future engagement with the ICO and would expect to see improvements in this regard.

[...]

Read the full Decision Notice (hopefully without too many OCR and editing errors):

How many months or years will this Complaint to the Information Commissioner's Office drag on for ?

Information Commissioner's Office,
Wycliffe House,
Water Lane,
Wilmslow,
Cheshire,
SK9 5AF

Email to: mail@ico.gsi.gov.uk

Freedom of Information Act 2000 Complaint against the Home Office
regarding the non-disclosure of the Names of the Communications
Service Provider companies which have been formally Notified under
the Data Retention (EC Directive) Regulations 2009

Tuesday 1st December 2009

Dear Sir or Madam

Please find attached my email correspondence with the Home Office and the Information Commissioner's Office, regarding my Freedom of Information Act 2000 request from the 2nd of June 2009.

1) the Names of the Public Communications Providers

and / or the

2) the Categories of Public Communications Providers

to which the Secretary of State has given a Written Notice, bringing them under the mandatory Communications Data Retention scheme, which came into force on 6th April 2009, under Regulation 10 of the

The Data Retention (EC Directive) Regulations 2009

http://www.opsi.gov.uk/si/si2009/draft/ukdsi_9780111473894_en_1

The Home Office eventually refused to disclose any of the requested Names of the Public Communications Providers who have been issued with Notices whatsoever, apart from saying that they did hold such information, and that there were no Notices issued to "Categories
of Public Communications Providers" (a term from the text of the Data Retention (EC Directive) Regulations 2009), implying that they have been issued to specific individual companies only.

After informal contact from the ICO, after the Home Office failed to acknowledge let alone respond with a substantial reply, the Home Office did eventually reply.

The Home Office also conducted an Internal Review of the handling of the timing of their response and, admitted to failing to respond with the 20 working day statutory limit.

The Home Office have, after the eventual Internal Review, claimed Exemptions under

Section 31(1) and (2)

"Information which is not exempt information by virtue of section
30 is exempt information if its disclosure under this Act would, or
would likely to, prejudice-
(1)(a) the prevention or detection of crime
(1)(b) the apprehension or prosecution of offenders
(1)(e) the operation of the immigration controls.

(2)(a) the purpose of ascertaining whether any person has failed to
comply with the law. "

"Arguments against disclosure

If the information were to be released, a considerable degree of harm would be caused to the law enforcement purposes that the regulations are designed to serve (including in relation to
immigration). Disclosure would damage the effectiveness of the arrangements in place and therefore law enforcement, as a result of the likely harm to the working relationship between the law enforcement community and communications providers in relation to this issue. This is not in the public interest. "

I fail to understand how making public just the names of the Communications Service Providers will in way "damage the effectiveness of the arrangements in place and therefore law
enforcement, as a result of the likely harm to the working relationship between
the law enforcement community and communications providers in relation to this issue"

It will have no effect whatsoever on the Single Point of Contact system, through which Police forces and Intelligence Agencies etc.channel their Data Protection Act 1998 section 29 requests for Communications Data, which will still operate with Internet Service
Providers and Telecommunications companies which have *not* been formally Notified that they are subject to the Data Retention Regulations.

As the Home Office's Internal review itself notes, those companies which have been Notified under these Data Retention (EC Directive) Regulations 2009, "have no option but to comply with these regulations.", whether they have been named in public or not.

There are, however, no legal sanctions available in the Regulations if a Communications Service Provider completely or partially fails to comply with them. It would be inconceivable for a public limited company to fail to do so, if it their own staff and shareholders were actually aware that the company had been Notified under the Regulations. This beneficial aspect of transparency has not been considered by the Home Office.

The Home Office have also claimed an Exemption under:

Section 43(2)

"Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it). "

When I asked for an Internal Review of this refusal, I pointed out that, according to the Information Commissioner's Office Guidance on such Commercial interests exemptions, that they should have contacted the third party companies concerned.

The Home Office have not bothered to do so, and they have not even contacted the relevant independent industry and market regulatory body OFCOM (www.ofcom.org.uk) .

Contrary to the ICO guidance,

Information Commissioners Office FOIA Guidance - Section 43 - Commercial detriment of third parties

http://www.ico.gov.uk/upload/documents/library/freedom_of_informatio
n/detailed_specialist_guides/commercialdetrimentof3rdparties.pdf

The Home Office has speculated wildly, on possible future market conditions in areas completely out of their expertise, such as future consumer behaviour in the market, credit ratings, brand images, the ability to raise finance etc.

"Arguments against disclosure

Releasing the names of the companies who have agreed to retain information about their
customers' use of their communication networks is likely to result in customers changing their supplier which would have a detrimental impact on the commercial revenues of these companies. A reduction in the number of customers is also likely to threaten their ability to secure finance on world money markets and harm their brand image, as well as offer employment. This is likely to weaken their position in what is a very competitive environment. It
is also worth noting that these companies have no option but to comply with these regulations.

Balance

I am satisfied that it is not in the public interest to release details of which telecommunication companies have been asked to retain information about their customers' use of their networks. I
am of the view that it is likely customers would change suppliers which would weaken the market share of those served with notices to retain information. If the credit ratings and brand images of these companies were to be harmed this is likely to reduce their abilities to raise funds for future improvements to their networks and services, as well as offer employment, which is not in the public interest. "

My FOIA request does *not* ask for details of the amount of financial compensation (or state subsidy) being promised to individual companies which have been Notified, only for the Names of the companies affected by the Regulations.

Small or Medium sized Internet Service Providers or Telecommunications companies, or New Entrants into the market(s), who are not receiving state subsidies from the Home Office, for the
implementation of the Data Retention Regulations, may very well have something to say to the Competition Authorities, both in the UK and at the European Union level, but they need to know for sure which of their bigger rivals are being Notified and therefore subsidised.

More generally, Retained Communications Data is just as likely to be used in *Civil Court* cases e.g. a Court Orders in Copyright Infringement or Divorce cases.

So there is a much wider Public Interest in the disclosure of names of the companies which are subject to these Regulations, which is *not* directly concerned with Criminal Law enforcement, which is all that the Home Office seems to have considered.

Please contact me if you need any further details, in order to consider this complaint.

Yours sincerely

[name]
[address]
[email]

The text of the Home Office's delayed Internal Review:

The Information Commissioner's Office (ICO) has now drafted a Decision Notice, which is going up the the management hierarchy for signature, regarding the Home Office and Terrorism Act 2000 section 44 "stop and search without reasonable suspicion" Authorisations.

We did not request any of the background national security intelligence on why such Authorisations were or were not justified. We simply requested the time, date, duration and geographical area locations of where the section 44 powers were in force. These extraordinary legal powers are explicitly not meant to be used for general policing, or to be in force everywhere, all of the time.

There is no difference in practice between "secret laws", which are meant to be an anathema to British justice, and the application of an Act of Parliament in secret - the end result is just as nightmarishly Kafkaesque for thousands of innocent people caught up by them in error, without apology or compensation.

Remember that not a single terrorist has ever been caught "red handed" as a result of the hundreds of thousands of these section 44 stop and searches, Neither have any of the recent Irish republican terrorist attacks in Northern Ireland nor any of the Al Queada inspired attacks in England or Scotland been deterred by such secret stop and search Authorisations.

See this blog's HO Terrorism Act 2000 s44 Authorisations catgory archive.

The Home Office has rejected the Freedom of Information Act request made
on 2nd June 2009 i.e. after 78 working days, and a complaint to the Information Commissioner's Office.

It is hard to believe that any of the Fixed Line or Mobile Phone companies would not be on this list of companies to which the Data Retention (EC Directive) Regulations 2009 have been made to apply, so it is really only which Internet Service Providers or the ISP divisions of larger companies, have or have not, been forced to comply with the Regulations, which are of interest.

[Home Office logo]
Direct Communications Unit
2 Marsham Street, London SW1P 4DF
Switchboard 020 7035 4848 Fax: 020 7035 4745 Textphone: 020 7035 4742
E-mail: public.enquiries@homeoffice.gsi.gov.uk Website: www.homeoffice.gov.uk

[name]
[email]

Reference: Tnnnn/n

Dear [name]

Thank you for your e-mail of 02/06/2009 requesting the names of companies that have received notices under the Data Retention (EC Directive) Regulations 2009. I am writing further to my letter of 26 August to provide you with a final response. I am sorry for not meeting the 16 September date as indicated in that letter.

I can confirm the Home Office has issued Notices to several Communication Service Providers (CSPs) since the Regulations came into effect on 6 April this year. You asked for further details, specifically for the names of the CSPs that have received the Notices and for the dates on which they were sent.

I am writing to confirm that the Home Office holds the information that you requested. However I am not obliged to disclose it to you. After careful consideration we have decided that this information is exempt from disclosure by virtue of Section 31 and Section 43 of the Freedom of Information Act. These provide that information can be withheld where disclosure would prejudice law enforcement operations and harm commercial interests respectively. The public interest in this instance falls in favour of non-disclosure.

If you are dissatisfied with this response you may request an independent internal review of our handling of your request by submitting your complaint within two months to the below address.

Information Rights Team
Information and Record Management Service
Home Office
4th Floor, Seacole Building
2 Marsham Street
London
SW1P 4DF
Email: info.access@homeoffice.gsi.gov.uk

During the independent review the department's handling of your information request will be reassessed by staff who were not involved in providing you with this response. Should you remain dissatisfied after this internal review, you will have a right of complaint to the Information Commissioner as established by section 50 of the Freedom of Information Act.

I realise that you may be disappointed with this response. However we have considered the application of exemptions with great care in this case, and the Home Office always seeks to provide as much information as it is able to.

Yours sincerely

[name of civil servant]

Annex
Section 31 of the FOIA law enforcement interests

Section 31(1)a refers to the prevention or detection of crime. The European Directive on Data Retention was introduced for the prevention and detection of Serious Crime.

Section 31 of the FOIA provides for the protection for law enforcement interests; its application turns on whether disclosure would be likely to prejudice those interests. The law enforcement organisations have confirmed the release of this information is likely to reduce the utility of retained data and thereby reduce law enforcement's ability to prevent and detect crime.

Paragraphs within section 31 of particular relevance are;

• Section 31(1)a; information prejudicial to the prevention or detection of crime.

• Section 31(1)e relates to the operation of the immigration controls; the UK Borders Agency use communications data in policing immigration.

• Section 31(2) refers to additional purposes under which disclosure of information can be withheld if there would be a prejudicial effect on law enforcement.

These Regulations are not about the usefulness of Communications Data in general, or about access to it by Law Enforcement bodies.

It is debatable just how useful the mass retention of millions of innocent people's communications data, which is up to a year out of date, really is, rather than the hundreds of thousands of supposedly narrowly targeted request for Communications Data made each year.

The Information Commissioner's Office latest Guidance (August 2009:

Section 31 Law Enforcement (AG 17) (.pdf)

is clear:

A public authority cannot withhold information, or refuse to confirm or deny that it holds information, unless the disclosure would, or would be likely to, prejudice any of the purposes or activities listed in the exemption. The prejudice must be genuine and of substance and its likelihood must be decided on a case-by-case basis. A public authority must therefore explain why the disclosure of the specific information requested would, or would be likely to, cause prejudice. It is not acceptable to say that disclosure of that type or class of information would, or would be likely to, cause prejudice.

Remember this FOIA request has nothing to do with any individual Communication Data records, or for any details of the analysis algorithms etc., it is simply for the names of the companies which have been ordered to comply with the Data Retention Regulations.

Even those companies which have not been served with Notices, will still be providing Law Enforcement with Communications Data records when properly asked under section 29 of the Data Protection Act, via the Single Point of Contact system.

Therefore it is quite likely that the Information Commissioner's Office will reject this Section 31 exemption, if it goes that far.

Section 43 of the FOIA provides an exemption from disclosure of information where that information would harm commercial interests. It is possible that releasing this information might change consumer behaviour to the detriment of those companies that have been issued with Notices.

That is just unfounded speculation.

"might change consumer behaviour" - by how much, over what period ?

Predictions of consumer choices and market trends in the telephone, mobile phone and internet markets depends on many factors, and is something well beyond the expertise of the Home Office.

Section 43 provides an exemption from disclosure of information where that information would harm commercial interests.

Releasing the requested information would increase the transparency of how the Home Office has implemented the European Directive. However, this public benefit is not sufficient to balance the detrimental effect upon law enforcement and separately the commercial interests at stake. It is therefore not in the public interest to disclose this material.

The Section 43 "justification" totally ignores the Information Commissioner's Office FOIA Guidance on this subject, following the rulings of the Information Tribunal:

Section 43 - Commercial detriment of third parties (.pdf)

[...]

A public authority which believes that the commercial interests of a third party will, or are likely to, be prejudiced must explain why this is the case.

• It will not be enough for the public authority to simply speculate as to why the third party's commercial interests would, or would be likely to be prejudiced; the third party where possible must be asked for their opinions.

• If the third party does not put forward any concerns regarding any prejudice to its commercial interests then a public authority should not speculate on their behalf.

[...]

The Home Office does not appear to have consulted any of the commercial internet service providers ad telecommunications companies,or even their industry competition regulator Ofcom about this, so they are just speculating about market conditions, which they have no expertise in.

The FOIA request does not ask for details of the amount of financial compensation (or state subsidy) being promised to individual companies, only for the names of the companies affected by the Regulations.

Smaller Internet Service Providers, or new entrants into the market, who are not receiving state subsidies from the Home Office, for the implementation of the Data Retention Regulations, may very well have something to say to the competition authorities, both in the UK and at the European Union level.

Therefore it is very likely that the Information Commissioner's Office will reject this Section 43 exemption, if it goes that far.

Communications Data is not just of interest to Law Enforcement public authorities, there can be a National Security aspect as well. It is somewhat surprising that the Home Office did not try to use the Section 24 National Security exemption as well.

However, Retained Communications Data is just as likely to be used or abused in civil court cases e.g. a Court Order in Copyright infringement or Divorce cases,

So there is a much wider Public Interest in the names of the companies which are subject to these Regulations, which is not directly concerned with Criminal Law enforcement

This FOIA request has, unusually, already sparked off an Internal Review and a complaint to the Information Commissioner's Office, even before this Substantial Reply / Rejection.

That Internal Review about the apparent silence and lack of any response (despite email Read Receipt acknowledgments of the original 2nd of June 2009 request and of the later reminder emails.

Hopefully the results of that Internal Review will be available by the end of this week.

Spy Blog will put in another Internal Review request (without much hope of the Home Office changing their minds), before having to complain to the Information Commissioner.

There appears to be something seriously wrong with the FOIA request management systems in the Home Office.

Even this Internal Review has now been delayed 3 times !

From: [IMS civil servant]@homeoffice.gsi.gov.uk>
To: "[email]
Date: Tue, 01 Sep 2009 12:07:56 +0100

Dear [name]

Further to my correspondences below, I regret to inform you that your
internal review (Time Complaint) is yet to be completed. I am
experiencing difficulty In ascertaining the specifics of the case and
have elevated these issues up the managerial chain. I apologise for
this ongoing delay and again assure you that I am doing everything in my
power to get the response issued to you as soon as possible. I now aim
to respond to you by no later than the 25th September 2009.

You have the right of complaint to the Information Commissioner, as
established by section 50 of the Freedom of Information Act. Please
find below the address you can write to him at:

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

Many Thanks

{IMS civil servant]
Information Management Service | Financial and Commercial Group
Ground Floor | Seacole Building | Home Office | 2 Marsham Street |
London SW1P 4DF
Switchboard Number: 0207 035 4848

-----Original Message-----
From:{IMS civil servant}
Sent: 14 August 2009 11:39 AM
To: [email]
Subject: nnnnn - [name] - Internal Review - Time Complaint -
Further Deadline extension and apology

Dear [name]

Further to my correspondence on the 30th July 2009, I must once again
inform you that your Internal Review (Time Complaint) has not yet been
completed. I apologise for this delay and assure you that I am doing
everything within my power to complete this Time Complaint review and am
also still pushing for the response to be issued in regard to your
original request for information.

I now aim to respond to you by no later than the 1st September 2009.

If you have any questions please feel free to contact me.

Many Thanks

[IMS civil servant]
Information Management Service | Financial and Commercial Group
Ground Floor | Seacole Building | Home Office | 2 Marsham Street |
London SW1P 4DF
Switchboard Number: 0207 035 4848

-----Original Message-----
From: [IMS civil servant]
Sent: 30 July 2009 3:14 PM
To: [email]
Subject: nnnnn - Internal Review - Time Complaint - Deadline extension
and apology letter

Dear [name]

I write further to my original correspondence below sent on the 20th
July 2009. I regret to inform you that the Internal Review (Time
Complaint) has not yet been completed. This is due to a number of
issues surrounding this case. I offer my sincerest apologies and now
aim to complete the review no later than the 14th August 2009.

In the mean time I will still be pressing that a response to your case
should be issued as soon as possible.

If you have any questions please feel free to contact me.

Yours Sincerely

[IMS civil servant]
Information Management Service | Financial and Commercial Group
4th Floor | Seacole Building | Home Office | 2 Marsham Street | London
SW1P 4DF
Switchboard Number: 0207 035 4848

-----Original Message-----
From:[IMS civil servant]
Sent: 20 July 2009 9:50 AM
To: [email]
Subject: nnnnn - Internal Review - Time Complaint - Acknowledgement
letter

[name]

I am writing to you in response to your request for an Internal Review
(Time Complaint) of the handling of your request within your email
received by the Home Office on the 16th July 2009.

I will be conducting the procedural review and the request case number
is nnnnn We aim to send you a response to this complaint by the 29th
July 2009. I will be in touch again shortly, but please do not hesitate
to contact me if you have any queries about the handling of your request
in the meantime.

Many Thanks

[IMS civil servant]
Information Management Service | Financial and Commercial Group
4th Floor | Seacole Building | Home Office | 2 Marsham Street | London
SW1P 4DF
Switchboard Number: 0207 035 4848

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