December 2009 Archives

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: