Home Office FOIA request for names of companies that have received notices under the Data Retention (EC Directive) Regulations 2009 - Rejected: FOIA S31 Law Enforcement interests and S43 Commercial Interests


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


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
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]

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.


FOIA requesters, such as activists in Ann Arbor, MI, are learning they can publish and aggregate the fruits of their requests on the web. Their aggregated records foster the kind of transparency in government (in their case local, municipal government) that the government itself should be creating. --Ben

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This United Kingdom based blog has been spawned from Spy Blog, and is meant to provide a place to track our Freedom of Information Act 2000 requests to United Kingdom Government and other Public Authorities.

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