Recently in HO Terrorism Act 2000 s44 Authorisations Category

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.

It looks as if the Information Commissioner's Office (ICO) has notified, and formally sent a Freedom of Information Act 2000 section 51 Information Notice to the Home Office, regarding our Complaint about or FOIA request for time,place and duration details of Terrorism Act 2000 section 44 stop and search Authorisations..

25th June 2009

CASE REFERENCE NUMBER FSnnnnnnnn

XXX

This is to advise you that I have just sent an Information Notice to the Home Office as they have not yet responded to my initial enquiries they are not yet in receipt of it but are aware that one has been posted. They have 28 days to comply with this.

[...]

Regards

[name]

Senior Complaints Officer

Our original FOIA request was made back in December 2007, and the Information Commissioner's Office has been trying to get something back from the Home Office since the end of April 2009.

It is unusual for the ICO to have to flex its few legal muscles in this way, but technically, if the Home Office does not comply within 28 days, i.e. by Friday 24th July 2009, they could be brought before a High Court Judge and face Contempt of Court proceedings under the Freedom of Information Act 2000 section 54 Failure to comply with notice

3) Where a failure to comply is certified under subsection (1), the court may inquire into the matter and, after hearing any witness who may be produced against or on behalf of the public authority, and after hearing any statement that may be offered in defence, deal with the authority as if it had committed a contempt of court.

We are not asking for any "national security" or "intelligence" related material, only for enough information to determine exactly where, when and for how long supposedly strictly temporary and geographically limited legal powers were, or are still currently in force.

Apologies for not blogging this recent FOIA "news" a bit earlier.

After a delay of over a year, the Information Commissioner's Office now has someone investigating the FOIA complaint about the Home Office regarding the request for just time, date and location details of where and when the controversial Terrorism Act 2000 section 44 "stop and search without reasonable cause" powers are temporarily in force.

This response from the ICO came 533 days or 1 year, 5 months, 16 days ago since the original request to the Home Office !

The ICO have already turned up a reference to the

Home Office Circular 038 2004

The 2004 Notes even state that the whole Authorisation Form is
"discloseable", so there really is no excuse for the Home Office's
refusal of my 2007 FOIA request !

"5. It must be remembered that the S.44 authorisation is a
discloseable document and, as such, care must be taken not to
include direct reference to matters that could compromise the
broader counter-terrorist activities carried out by Special
Branches or allied Agencies. To that end there should be no
reference to operation names or to classified briefing material
unless absolutely necessary - in which case the authorisation
should be protectively marked and handled in strict accordance with
Government Security Marking Guidelines"

• Home Office Circular 038 2004 Form - Authorisation to Stop and Search - S.44 Terrorism Act 2000: (web page ) or the original (.doc) file

• Home Office Circular 027 2008 Form - Authorisation to Stop and Search - S.44 Terrorism Act 2000 (web page ) or the original (.doc) file
  

As you would expect, both of these versions of the Authorisation Forms ask for Maps if these would be helpful:

4. There may be occasions where it would be helpful to those reviewing the extent of the authorisation for relevant maps etc to be attached clearly showing the area in question. Where it is necessary for the defined area to be explained in detail then it is acceptable for that information to be added as an appendix to the Authorisation.

The correspondence so far:

Another 12 weeks wasted in the Information Commissioner's Office complaints queue:

The original FOIA request was made back on Wednesday 14th November 2007

23rd February 2009
CASE REFERENCE NUMBER FS50198733
Dear XXX
We last wrote to you on 25 November 2008 about the Freedom of
Information Act complaint you made to the Information Commissioner.
This complaint concerns the request you made to the Home Office on 14
November 2007. This request concerns the number of authorisations
under the Terrorism Act 2000.
Your case remains in the queue of Team 2 (Police and Justice).
Please accept my apologies for the delays that you are experiencing.

The ICO allocated a case number to this complaint back on Tue, 06 May 2008

The Freedom of Information Act is not working properly !

Your case will be allocated when it reaches the front of our queue
and a Complaints Officer has capacity to investigate it in full
detail. We are unfortunately unable to provide updates about either
the content or progress of your case until it is allocated.
I will write to you every twelve weeks prior to allocation and a
Complaints Officer will write to you to inform you when your case is
allocated.
I hope this email is clear and helpful.
Yours sincerely
David McNeil

Complaints Officer

THE INFORMATION COMMISSIONER'S OFFICE.
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When the Information Commissioner's Office get around to considering the complaint regarding last November's Freedom of Information Act request for the locations and durations of the statutory Authorisations made under section 44 of the Terrorism Act 2000, i.e. the supposedly temporary areas where normal Police stop and search powers are exceptionally changed to become stop and search without reasonable suspicion powers ?

The ICO wrote in May that they had at least a 12 week backlog.

They have now written again, in August, having allocated the complaint to the

Team 2 (Education, Police and Justice) queue

However, there is no estimate of when this complaint will be looked at, let alone resolved.

Click on the HO Terrorism Act 2000 s44 Authorisations category archive, for the full saga of delays so far.

Text of the (paper snail mail) letter:

The Information Commissioner's Office is still overloaded with a backlog of Freedom of Information Act complaints.

They still have not allocated a Case Officer to the complaint about the Home Office and their refusal to disclose the geographic or time / date details about where and when the supposedly temporary, strictly time and location limited Terrorism Act 2000 Section 44 stop and search Authorisations are, or are not, in effect.

Please accept my apologies for the delays you will experience prior to this case being allocated. I will write to you again every twelve weeks to inform you of the status of your complaint in relation to Team 2's queue and we will notify you when a case worker is assigned to it.

This means that they assume that there is now going to be a minimum 12 week delay before they even start looking into the details of the complaint.

This is not acceptable - it is over 3 years now since the Freedom of Information Act 2000 came fully into force, and the number of actual FOIA requests being made has gone down since then.

See also these Parliamentary Written Answers on the backlog of cases at the ICO

Commons Hansard - Written Answers - 14 May 2008 : Column 1571W

[...]

At 31 March 2008, the number of cases awaiting investigation by the Information Commissioner were 1,363 for freedom of information casework and 1,237 for data protection casework.

Additionally, due to the volume of cases referred to the Information Commissioner under data protection, there were 2,250 cases awaiting classification as at 31 March 2008. Of these cases, it is estimated that approximately 60 per cent. would be resolved within 30 calendar days and 85 per cent. within 90 calendar days.

[...]

Between April 2007 and March 2008 the average length of time from receipt to commencement of investigation was 69 days for the Freedom of Information Act cases and 30 days for Data Protection Act cases. The average length of time to close an investigation once commenced, was 182 days from for Freedom of Information Act cases and 45 days for Data Protection Act cases.

These disproportionate delays, both by Central Government Departments and by the Information Commissioner's Office etc. are make a mockery of any claims that the Freedom of Information Act has somehow lead to any effective change towards public transparency and openness in the British bureaucratic state

Email from the ICO:

The Information Commissioner's Office has now allocated a Case Reference Number for our complaint about the Home Office's refusal to disclose any information about the time, date and geographical extent of the Terrorism Act 2000 Section 44 and 35 Authorisations (see the rest of the HO Terrorism Act 2000 s44 Authorisations Category Archive), which are supposed to grant temporary, limited powers of Stop and Search without reasonable cause to the Police.

The ICO's standard email footer information and disclaimer is getting longer and longer !

From: FOI-Enquiries@ico.gsi.gov.uk
To: [email address]
Date: Tue, 06 May 2008 11:05:56 +0100

Party Name

6th May 2008
CASE REFERENCE NUMBER FS5019nnnn

Dear [name]

YOUR INFORMATION REQUEST TO THE HOME OFFICE
Thank you for your recent correspondence in which you make a complaint about the Home Office's decision not to release the information you requested.

Your case has been allocated to one of our case resolution teams who will contact you as soon as possible to explain how your case will be progressed. Due to the volume of complaints we are receiving at present it may be several months before you hear from us.

The Information Commissioners Office is an independent public body set up to promote public access to official information. We will rule on eligible complaints from people who are unhappy with the way public authorities have handled requests for information under The Freedom of Information Act 2000.

If you need to contact us about any aspect of your complaint please contact our Freedom of Information Helpline on 08456 306060, or 01625 545745 if you would prefer to call a 'national rate' number, being sure to quote the reference number at the top of this message.

Yours sincerely,
Sent on behalf of

Mr Paul Arnold

Head of Customer Service

FOI Case Reception Unit

THE INFORMATION COMMISSIONER'S OFFICE
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MAY 2008

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Despite what seem to be compelling arguments in favour of the publication of the geographical locations and the durations of the Terrorism Act 2000 section 44 stop and search without reasonable cause powers, which are not general Police powers, but which are meant to be strictly limited, the home Office has , after an Internal review, yet again rejected our FOIA request for disclosure.

Read the transcript of the snail mail letter:

Another small milestone in the bureaucratic Freedom of Information Act (FOIA) process - we have an acknowledgement from the Home Office that they will be conducting an Internal Review of their decision to refuse the FOIA request, and into the delays in responding to it. - see the previous blog entry.

Until such an Internal Review is completed, you cannot make a complaint to the Information Commissioner's Office regarding your FOIA request.

Note that even if the Home Office relents, and decides to disclose the information on the geographical extent and the times and dates of Terrorism Act 2000 Section 44 to 46 Authorisation Notifications, which authorise the controversial "stop and search" without "reasonable suspicion" temporary legal powers.

N.B. We did not request any National Security sensitive background intelligence briefing material, which is what the Home Office claimed would be revealed. That would be far in excess of what is actually required in the actual Authorisations which Chief Police Officers have to Notify to the Home Secretary, under Section 46 Duration of Authorisations

We will reply as soon as possible and certainly aim to send you a full response within 40 working days of our receiving your request. You should receive this response by 10 April.

The observant readers of this blog will notice that this information will very likely not be public until after the forthcoming debates in Parliament on the latest Counter-Terrorism Bill 2008

The emailed letter (Microsoft Word document attachment):

Some of yous seem to be eagerly checking the status of our FOIA request to the Home Office about Terrorism Act 2000 Section 44 Authorisation Notifications for "no reasonable cause" stops and searches of people and vehicles - our web logs show regular interest from the Metropolitan Police Service and from the catch all Government Secure Intranet.

A Letter from the Home Office, arrived today 11th February 2008, in response tour request which they say they received on the 19th of November 2007. This was a paper snail mail copy of an email sent on 14th November, and which was acknowledged as having been received via their letter of 17th December 2007 i.e. the Home Office's first substantive response has arrived after 59 working days.

Even allowing for these discrepancies, the Home Office have, yet again, not complied with the 20 working days laid down by the Freedom of Information Act 2000 law.

It appears that the Home Office have conducted a a "public interest test", but without mentioning that they were planning to do so, in any substantive response within the 20 working days. The Information Commissioner usually grants a Public Body another 6 weeks leeway if they choose to go down this route of non-disclosure and delay, but the Home Office have, yet again, exceeded that time period as well.

A request for an Internal Review (without which you cannot appeal to the Information Commissioner) is in the post.

The Home Office is trying to argue that the Section 44 powers are a deterrent but that even the geographical extent of the Authorisations should be secret.

How effective can a secret deterrent be ?

These exceptional powers for Section 44 stop and search were specifically time and location limited by Parliament, and are not general , any time, any place, Police powers, but that is what the Home Office appears to be treating them as.

Are are they acting in excess of their legal powers - is this ultra vires ?

We argue that transparency would create a far more effective counter terrorism measure, by alerting the public to be extra vigilant in a particular place, at a particular time.

Better use of Police resources and less hassle for the law abiding public could be achieved, by publishing details of Section 44 Authorisations, perhaps on a map on the Home Office website. Law abiding members of the public could then avoid locations or times, where and when a temporary Section 44 Authorisation is in force, especially if they are carrying or transporting legal, but potentially suspicious items like shotguns, paintball guns, or ammonium nitrate based fertiliser etc.

Here is the re-typed text of the Letter: