Following on from the claim that the Interception of Communications Commissioner, is technically exempt from the Freedom of Information Act, we emailed the Department for Constitutional Affairs to have this public office added to the List of Organisations in Schdeule 1 of the Freedom of Information Act 2000.
Here is the reply:
Thank you for your email asking us to cover under section 4 of the Freedom of Information Act 2000 the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Investigatory Powers Commissioner
for Northern Ireland and the Office of the Chief Surveillance Commissioner (the Chief Surveillance Commissioner and Assistant Surveillance Commissioners). If these bodies and offices do in fact meet the conditions in s. 4 FOIA,
there is no obligation for the Secretary of State to add all bodies that meet the section 4 conditions to the Act.
All of them are appointed by the Prime Minister, as a result of an Act of Parliament. Both of the section 4 conditions are clearly met.
However his policy is that where bodies meet the conditions they should be added to the Act, apart from in a few exceptional cases where it is not appropriate to do so. One case is where it is likely that no additional information could be released under the Act. In such instances, we feel that it would be misleading to the public to add a body to Schedule 1 and of no additional value in terms of accountability.
Are they saying that "Interception of Communications Commissioner, the Intelligence Services Commissioner, the Investigatory Powers Commissioner for Northern Ireland and the Office of the Chief Surveillance Commissioner (the Chief Surveillance Commissioner and Assistant Surveillance Commissioners)" are all examples of such "exceptional cases" ?
For example, tribunals are not covered by the Act because
court records are exempt from release under the Act. The Office of Surveillance Commissioners is a tribunal and therefore we have not brought it under the Act.
It must be disputed that the Office of the Chief Surveillance Commissioner, Sir Andrew Leggatt, is actually a tribunal.
His functions are analagous to that of the Office of the Information Commissioner, who also hears certain appeals, and issues Decision Notices etc. via letter or email, but does not actually preside over a Tribunal, with the power to call witnesses etc. and whose decisions are subject to an actual Tribunal.
There is such a Tribunal, established under the Regulation of Investigatory Powers Act (RIPA) Section 65, the Investigatory Powers Tribunal
which is currently headed by Lord Justice Munnery, who, together with the other members of the Tribunal are appointed by Her Majesty through Letters Patent.
None of the Commissioners appointed by the Prime Minister under the Regulation of Investigatory Powers Act serve as members of this Tribunal, and are, in fact, expected to testify before it as witnesses.
We did not, therefore, ask for this Investigatory Powers Tribunal or the Intelligence Services Tribunal to be added to Schedule 1 of the Freedom of Information Act 2000.
The other RIPA Commissioners apart ftom the Chief Surveillance Commissioner, have even less of a claim to be considered as Tribunals, and their decisions are subject to the Interception Powers Tribunal and/or the Intelligence Services Tribunal.
As you are no doubt aware, the Security Agencies are not
"public authorities" under the Act (by virtue of the definition of
"government department" in section 84 of the Act).
The Commissioners are bound by statute to report annually to parliament, and this meets the public interest in these areas of government work. Because their work relates to security and intelligence and the detection and prevention of crime, it is likely that other information held by these bodies would be covered by one or more of the Act's exemptions.
Some of the RIPA Commissioners' work does indeed relate to secret intelligence matters, but the vast majority of it relates to normal crime, in exactly the same way as with various Police Forces, and Police Authorities, all of which do have Publication Schemes under the Freedom of Information Act.
There are matters of transparency and the public interest on which the Commissioners could respond to Freedom of information Act requests, within the protection of the Exemptions to the Act, without posing any risk to the confidential matters which they are meant to be providing public scrutiny of.
They could publish their own financial and expense accounts, meeting diaries, web site traffic statistics and advice and guidance to practioners, guidance on new technological developments e.g. Automatic Number Plate Recognition systems, or on forthcoming legislation e.g. new European Union Directives, and publish copies of their previous reports etc.
The RIPA Commissioners are being asked to expand their oversight roles, into areas where they do not actually have any formal statutory powers, e.g. the interceptions of communications in Prisons, or the access by the intelligence agencies to the proposed National Identity Register etc., The public should be able to request information, for example, to see if these additional roles and responsibilities are being properly funded and resourced by the Government.
There is even a precedent, in the public interest, for publishing statistics about the number of requests and appeals to these Commissioners from the public, in exactly the same way as the Information Commissioner had to acknowledge the current backlog of Freedom of Information Act appeals which his Office is trying to deal with.
Is it not the aim of the Freedom of Information Act to promote a culture of openness, which means that actual Freedom of Information Act requests per se, are unnecessary ?
Information Rights Division
Freedom of information, and public trust and transparency, for these RIPA Commissioners, is at least as important, in the public interest, as for any of the other public bodies currently covered by Schedule 1.
We would urge the Department for Constitutional Affairs to reconsider, and to add these RIPA Commissioners to Schedule 1 of the Freedom of Information Act as soon as possible.
Our original email request: