Can Spiderman make a Freedom of Information request?

Has your public authority ever received an FOI request from Justin Case, Barb Dwyer or Stan Still? Would these even be valid requests? According to a survey of FOI officers published by the Constitution Unit, the average council receives 47 information requests a month. The media now make around a third of all requests but members of the public still account for the most number at 37%. Increasingly FOI officers come across unusual names when dealing with such requests.

Can the use of an apparently fictitious name or pseudonym invalidate an otherwise valid FOI request? Section 8 of the Act states that a request must be in writing, state the name of the applicant and an address for correspondence and must describe the information requested. Most FOI officers I have trained seem to think that they have the right to ask for the “real name” of the requestor. According to the Information Commissioner’s Guidance  this view is correct:

“…the use of a false or fictitious name is not acceptable. Therefore, where a public authority receives a request from a person using an obvious pseudonym, there is no obligation to comply with the request;”

The Guidance goes on:

“In most cases, it will be reasonable for a real name to comprise a name by which the person making the request is widely known and/or is regularly used by that person and which is not an obvious pseudonym or fictitious name.”

The Commissioner does explain later that a common sense approach should be taken. Even when an obvious pseudonym has been used, as good practice a public authority should still consider the request even though technically it can be regarded as invalid. He advises that this approach could be adopted in cases where identity is not relevant to the request and, in view of the general principle in FOI of disclosure to the world at large, where the authority is content to disclose the information.

I think the Commissioner’s guidance is flawed in that it encourages public authorities to focus too much on the identity of the requestor and not on the information being requested.  Let us go back to basics.

Section 8 only requires the applicant to state his/her name. I have always advised clients that a name is a just what the requestor chooses to call him/herself. The Commissioner’s guidance encourages the public authority to speculate whether a given name is a pseudonym or fictitious. How can a public authority be sure that a given name is so? Where can it check that a name is real? I am not aware of any comprehensive official register of names in the UK. And not everyone is on the electoral roll.

The names in the first paragraph of this article are real names uncovered by researchers from a parenting group after trawling through online telephone records. Other they found include Pearl Button, Jo King and Tim Burr.

In any event a public authority cannot insist on a real or “proper” name from an FOI requestor as there is no such concept in English Law. A person can call themselves anything. They are not restricted to what is on their birth certificate. People change their name by deed poll (though they do not have to use such a document) to fit in with their lifestyle or to emulate their favourite celebrity. If a public authority receives an FOI request signed “Amy Winehouse” or “Michael Jackson” are they going to reject it or ask for proof that the King and Queen of Pop have risen again? What about a request from Facebookdotcom Forwardslash Mountaindew UK? These are all real names of living people.  (Honest! Click Here )

When researching this article, I found some interesting (and real) names on The Monster Raving Loony Party’s list of 2010 election candidates . Step forward Mr Nick The Flying Brick Delves, Chinners Chinnery and Hairy Knorm Davidson. If the Commissioner’s advice is correct, it seems that these names are real enough to allow the user to stand for election to the Mother of All Parliaments but not real enough to make an FOI request (without providing documentary evidence).

In 2011 a council purportedly claimed that the Information Commissioner’s Office (ICO) had backed its stance of asking an FOI requester to prove his identity. Upon receiving a request from a Buck U. Fogal, for expenditure over £500 for the clearance of three streets, the council asked for two forms of identification.  In its response to the requestor, it seemed to be implying that the ICO had agreed with this approach. If this is true, it is not in accordance with the Act. Another council has it seems been implementing an equally dubious system of randomly seeking proof of identity .

FOI is applicant blind and so the identity of the requestor should not be an issue. There are 23 exemptions under Part 2 of the Act, which can be relied upon if there is a problem in disclosing the requested information. A public authority cannot and should not ask who is making the request. There are exceptions to this general rule of course. For example where the requestor is asking for personal data (section 40). Sometimes the use of a pseudonym together with other factors such as volume and frequency of requests many lead to a request being deemed to be vexatious under section 14 of the Act (see the Tribunal Decision in Duke v IC and University of Salford (EA/2011/0060 26th July 2011). But these are exceptions and not the rule.

My advice to public authorities is, if you get an FOI request giving a name which you believe is fictitious then treat it is a valid request and focus on whether a Part 2 exemption from disclosure applies.

So back to the question posed at the start of this article; can Spiderman make a Freedom of Information request?

The answer is no… but just tell him to the look on the Web! (boom boom!).

Ibrahim Hasan will be latest FOI developments and cases in his FOI Update workshop in Birmingham on 13th March. For those wanting an international recognized qualification in FOI, the ISEB Certificate in Freedom of Information  starts in Birmingham on 26th March

Council Housing Information and FOI

Terraced Houses

Local authorities have, over the years, received many FOI requests for information about properties in their area. Requests have been made by, amongst others, squatters’ rights campaigners for lists of empty properties and by others for council property addresses where they wish to contact council tenants for various reasons e.g. to persuade them to vote against a housing stock transfer.

Council Property Addresses

Back in 2007, a Comissioner decision involving Braintree District Council concerned a request for a list of addresses of properties owned by the council. This was refused under section 40 i.e. that the information in question constituted third party personal disclosure of which would constitute a breach of the data protection principles.

The Commissioner considered that no such breach would occur and that it was threfore not correct to rely on the exemption. Although he accepted that there would be unfairness to individuals if they were publicly identified as members of a vulnerable group (e.g. asylum seekers, benefit recipients or women who have left violent partners) he did not consider that there would be any general unfairness to individuals in being identified as council tenants. In taking this view, he was mindful of the low inherent sensitivity of the data and that in practice the fact that a particular property is or is not owned by the council will be generally known to neighbours or because it is part of a known council housing estate. However, the Commissioner was willing to accept that there may be particular properties which are not generally known to be owned by the Council, the disclosure of the addresses of which might result in unfairness to some individuals. If for instance, the council had housed some vulnerable individuals at a secret location and this fact could be inferred from the address, then the Commissioner would accept that this information could be withheld. (See also the Decision Notice involving Mid Devon District Council (04/05/2006) (discussed in episode 4 of my FOI Podcasts).

A more recent Tribunal decision (September 2012)contains the same reasoning. In Exeter CC v IC and Guagliardo (EA/2012/0073) the council challenged the Commissioner’s decision to require disclosure of all properties, residential and business, owned by or leased or rented to the council. The only exception to this was any property which was used to house individuals requiring protection in a secret location.

The Tribunal dismissed the appeal stating that the low level sensitivity of the information, coupled with the fact that most of the information was already available through public sources (albeit not in one tranche), meant that it would not be unfair or breach the data protection principles to disclose the information. The Tribunal dismissed the argument that the information could be used by marketing companies as much of the information was already available through purchase of the edited version of the Electoral Roll. Therefore the exemption in Section 40 (personal data) could not be relied upon.

Contrast the above decision with Anthony Turcotte v Information Commissioner and London Borough of Camden(12 June 2008)where the appellant challenged the council’s decision to disclose redacted addresses of housing association (CHG) properties. The council had removed house and flat numbers on grounds of personal data (section 40).It argued that to disclose the full addresses of the properties, when taken with Electoral Roll information, would allow individual occupiers to be identified. Because the qualification criteria for housing by CHG included homelessness or significant housing needs, the data would permit individuals to be identified as part of a distinct and potentially vulnerable group. The Tribunal agreed with this approach.

In the light of the above decisions it seems that, in the absence of case specific reasons e.g. properties being used to house vulnerable people, information about which properties in an area are owned by a council is disclosable under FOI.

Empty Properties

Access to information about empty properties has always been a contentious issue. On the one hand local authorities holding such information claim that, if it is released, the properties will be targeted by squatters, criminals and drug addicts. They claim the information is exempt under section 31 (disclosure would be likely to prejudice the prevention or detection of crime). On the other hand, housing charities argue that it is unjust that there are thousands people living on the streets just next to properties which they could easily and cheaply occupy. The charity Empty Homes says that while there are about 730,000 unused properties in England and 930,000 across the UK, there are 1.7 million families on waiting lists for social housing in England and 2 million in the UK.

There have been a number of decisions over the years by the Commissioner and the Tribunal on this issue.In England and London Borough of Bexley v Information Commissioner (EA/2006/0060 & 0066) the Information Tribunal (as it was known then) reviewed the decision of the Information Commissioner to order Bexley Council to disclose the details of all empty properties in its area, together with the reasons why the properties are empty, and who owns them. The Tribunal ruled that those properties owned by anyone other than individuals should be disclosed together with details of ownership. Whilst it accepted, contrary to the Commissioner’s view, that the section 31 exemption was engaged it ruled that the public interest in disclosure was greater. However details of properties owned by individuals should not be disclosed as it was personal data and so exempt under section 40. Disclosure of this information would be unfair to the individuals as their properties could be targeted by criminals and squatters.

A more recent decision by the First Tier Tribunal (Voyias v IC and LB Camden (EA/2011/0007) ordered Camden Council to disclose, to a former member of the Advisory Service for Squatters, lists of empty properties meeting certain descriptions. The requestor specifically excluded properties owned by individuals. The Tribunal found that, whilst the section 31 exemption was engaged, the public interest in bringing empty properties back into re use was paramount. The then Housing Minister Grant Shapps’ was not happy about this decision condemning it as a “squatter’s road map”.

Last year the Upper Tribunal in London Borough of Camden v The Information Commissioner &YV [2012] UKUT 190 (AAC), overturned the decision of the First Tier Tribunal and remitted the case to a differently constituted tribunal.Judge Jacobs’ found that the Tribunal had taken an unduly narrow view of the factors to be taken into account, when considering the public harm caused by criminal acts. It had been argued that crimes, e.g. criminal damage, would be encouraged by the publication of a list of empty properties. Judge Jacobs held that the financial and social consequences of such crimes had to be taken into account as well, even if indirect. That test also included an assessment of how existing behaviour might alter if information was released.

The Tribunal’s judgement on the remitted case was given on 22nd January 2013. This time it ruled in favour of the council; that the section 31 exemption was engaged and the public interest was against disclosure:

“…the small weight that the public interest in disclosure bears does not come close to equalling the public interest in preventing the categories of crime we have identified in this decision.”

This is a very strong decision in favour of the council and one which will be welcomed by local authorities up and down the country who feared swathes of their empty properties being occupied by squatters. However, I do not think we have seen the last of these cases.

Ibrahim Hasan will be discussing these and other FOI developments in his FOI Update workshop in Birmingham on 13th March. For those wanting an international recognized qualification in FOI, the ISEB Certificate in Freedom of Information  starts in Birmingham on 26th March. 

The Scottish Information Commissioner Needs You

SIC Web Page

The Scottish Information Commissioner is conducting a survey on FOISA learning and development resources. We would encourage all our Scottish friends and delegates to complete the survey and have a say in the future priorities of OSIC.

“The Scottish Information Commissioner is seeking a better understanding of the learning and development needs of the staff of Scottish public authorities who want to know more about Freedom of Information (FOI). We also want to find out more about what FOI learning and development support is available in Scotland today.

This survey covers FOI and the Environmental Information Regulations (EIRs) – it is NOT gathering information about data protection training. We’ll use the findings of this short survey to identify where we can best focus our efforts to provide authorities with learning and development support which meets their needs.

The survey is completely anonymous, although you may give us your name if you prefer. It should take between 15 and 30 minutes to complete (depending on your answers).”

CLICK HERE to access the survey

A survey report will be published on the OSIC website.

Don’t forget we are running Scotland’s first certificated FOISA course in Edinburgh in February.  This is accredited by the Centre for FOI which is part of the University of Dundee. The Executive Director of the Centre is Kevin Dunion (the former Scottish Information Commissioner).

Unkindleness

Likkindlee many other dads, and mums and ordinary human beings I received a Kindle as a Xmas present.

Having ripped off the wrapping paper and found it had power I registered my device in the process passing my contact details to Amazon.

I quickly found a book I’d been looking for in charity shops and libraries for just £1-99 so bought it and 30 seconds later there it was on my shiny hi-tech beautiful slimline direct marketing device.

It’s the adverts you see. Now and again it shows me an advert. I didn’t ask for it. I never had a legitimate expectation I’d have adverts on my Kindle. I couldn’t find a way to turn them off. Research on the net shows that Amazon subsidise the price of a Kindle and if I refund the subsidy (about £15) I can stop the ads.

Amazon didn’t tell me nor did the retailer. The price paid was for a Kindle not a discounted Kindle. Do I have any rights here? Answers on a postcard to Section 10, Act Now Training, The Internet.

I will write to Argos (my retailer) and point out that they shouldn’t send me Marketing  and no doubt they’ll pass me on  to Amazon. Or is it direct marketing? Have Amazon found a way to direct market to me in an indirect way? Will Big  Chris listen to my complaint and take action or do I need to find another 99 people who feels the same as me. Answer in several months. Watch this blog.

New FOISA Qualification

Act Now Training is pleased to announce the Practitioner Certificate in Freedom of Information (Scotland).  This is the first certificated course specifically designed for those who work with Freedom of Information and the Environmental Information Regulations in Scotland. Successful candidates will receive a certificate  demonstrating that they possess a good knowledge of Freedom of Information and other information laws  they apply in Scotland, as well as an understanding of the practical implications for their organisation.

cfoi

The Certificate is endorsed by the Centre for Freedom of Information based at the University of Dundee. The Executive Director of the Centre is Professor Kevin Dunion (formerly the Scottish Information Commissioner). Professor Dunion says:

“On behalf of the Centre for Freedom of Information, I am pleased to endorse Act Now Training’s Practitioner Certificate in Freedom (Scotland). In my view it is important that the skills which our FOI(S)A practitioners have built up should be formally recognised through a certificated qualification. The training approach and course documentation reflect the distinctiveness of our Scottish FoI regime. I am confident that Scottish FOI(S)A practitioners will find this course invaluable in acquiring a greater understanding of all aspects of information rights legislation which impacts on Scotland. In particular the practical elements of the course will improve delegates’ ability to deal with the increasingly complex information requests received by Scottish public authorities.”

The course runs over four days followed by online sessions and an exam. Candidates also have to submit two practical case studies. In drafting the course syllabus we have consulted the Office of the Scottish Information Commissioner and taken account of their comments and suggestions. We also have an independent exam board (chaired by Professor Dunion) consisting of FOI(S)A practitioners and renowned experts.

We are confident that the Act Now Practitioner Certificate in Freedom of Information (Scotland) will soon become the qualification of choice for FOI(S)A practitioners in Scotland.

Please get in touch if you would like more information.

Changes to FOI : Government Response to Justice Committee Report

Cartoon

In July 2012, the Justice Select Committee published its report into post-legislative scrutiny of the Freedom of Information Act 2000. Running to more than 100 pages, and considering submissions from a wide range of those who operate the Act, the report is broadly summarised in its first sentence:

“Freedom of Information has been a significant enhancement of our democracy and the Act is working well. “

The Committee largely resisted calls for FOI to be amended fundamentally. It did recommend that the Government should make some (many would say modest,) changes to the FOI regime. The Government has now published its official response to the Committee’s report. It is fair to say that the Government has rejected many of the report’s recommendations. Below is a brief analysis of the main recommendations of the Committee and how the Government has responded: (For another account see the SaveFOI Campaign’s latest blog post. )

1. A Change to the Costs Regime

Many of those that responded to the Committee’s call for evidence, had expressed concern about the sheer cost of dealing with FOI requests (although the basis of calculation of some of the figures seemed highly dubious). The Committee recommended that consideration be given to reducing the amount of time an authority need take in searching for and compiling information:

“We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the Government would want to carry out further work on how this would affect the number of requests rejected.”

However, the Committee rejected the suggestion that reading, consideration ND redaction time should also be taken into account when deciding whether the 18-hour limit has been reached. The Government doubts that much will be achieved through the reduction of the costs limit. It is though in favour of allowing additional factors to be taken into account in deciding whether the 18 hour limit has been reached:

“The Government does not share the assessment of the Committee that it is unfeasible to develop an objective and fair methodology for calculating the cost limit which includes further time spent dealing with information in response to a request. As such, the Government is minded to explore options for providing that time taken to consider and redact information can be included in reaching the cost limit.”

At present, according to the FOI Fees Regulations, costs of different FOI requests can be aggregated only where the requests relate to the same or similar information. The Government may change this to make it even easier to aggregate costs. At paragraph 19 of its response, it states:

“We will also look at addressing where one person or group of people’s use of FOIA to make unrelated requests to the same public authority is so frequent that it becomes inappropriately or disproportionately burdensome.”

2. New Research Exemption

Universities strongly argued before the Committee that there was insufficient protection for pre-publication research under FOI. The Committee took this on board and recommended that section 22 of the Act should be amended to give research carried out in England and Wales the same protection as in Scotland under FOISA.

The Government accepts this recommendation. It says in its response (at paragraph 48), that it is minded to introduce a dedicated exemption to cover pre publication research, which would be qualified and prejudice based. However this would be reviewed at a suitable point after introduction.

3. New Statutory Time Limits

At present where a public authority wishes to extend the 20 working day time limit to consider the public interest test, or is asked to undertake an internal review of a refusal to disclose, there is no further statutory time limit (although the ICO recommends that a further 20 working days is appropriate in most cases). The Committee recommended the 20 day extension be put into statute.

The Government has rejected this recommendation in part. Whilst it acknowledges the importance of internal reviews and consideration of the public interest test being done in a timely fashion, it does not believe that time limits should be enshrined in the Act itself. It believes that these matters are best dealt with through amendments to the S.45 Code of Practice.

4. Disclosure Logs and Names of Requestors

The Committee recommended that public authorities should be required to publish more information about their handling of FOI requests and meeting deadlines. The Government felt that this would be an additional burden on public authorities at any time of financial constraints.

Surprisingly the Committee also recommended that where the information released from FOI requests is published in a disclosure log, the name of the requestor should be published alongside it. The Government has rejected this recommendation on the basis that, amongst other things, it would risk unfair disclosure of personal data and so breach the Data Protection Act 1998.

5. Section 77 Prosecutions

The Committee recommended a change to the provisions of the Act dealing with the criminal offence of altering/erasing/concealing information. Currently this provision effectively requires the Information Commissioner to bring a prosecution within six months of the offence taking place. As often the Commissioner would not find out about an offence until well after this, the chances of bringing a prosecution have been very low. The Committee suggested (at paragraph 121):

“The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.”

The Government has rejected the idea of making the S.77 offence an either way offence and so attracting a higher fine. It proposes though that the 6 month window for prosecution should be triggered when the offence is discovered rather than when it occurs.

6. Fees for Tribunal Appeals

The Committee never considered the issue of charging fees for Tribunal appeals (which are free at present although the Tribunal has a discretion to award costs to either party). Thishas not stopped the Government (at paragraph 24)considering the idea:

“…the Government is keen explore the potential for users to contribute more towards the costs of tribunals. Fees are already charged in some jurisdictions (for example, in the Immigration and Asylum tribunal) and we will examine the scope for extending this approach to other types of tribunal, including the Information tribunal.”

7. Extension of FOI

On the question of extending FOI to the private sector the Committee stated:

“We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.”

The Government, in its response, states that it is continuing consultations with various public sector sector bodies with a view to adding them to the list of public authorities under FOI. These include the LGA, harbor authorities and the NHS Confederation. It is also going to consult 2000 housing associations. Any additions to the list of public authorities will come into effect by Spring 2015. However, the following quote, from paragraph 56 of the Government’s response, will disappoint FOI campaigners and those who think that FOI should be extended to the private sector:

“The Government therefore does not intend, at this time, to legislate to extend FOIA obligations to contractors. In particular the Government is concerned about the potential impact on SMEs, the voluntary sector and social enterprises, but does not think that a minimum contract value threshold for formal inclusion should be adopted given that public interest does not always equate to the size of a contract.”

FOI Update webinar– This and other FOI developments and cases will be discussed in our forthcoming FOI Update Webinar.

Leveson: What future for Data Protection?

LevesonThe Leveson Report has finally been published.

The Report recommends that a tougher form of self-regulation backed by legislation should be introduced to uphold press standards. Much has already been written (http://www.bbc.co.uk/news/uk-20543936) and will continue to be written about this central recommendation and whether it is good or bad for democracy and a free press. But amid the furore about whether the Prime Minister should or should not accept the central recommendation, it is easy to forget that the report will also have implications for Data Protection Act and the Information Commissioner.

One of the areas that Lord Justice Leveson was required to consider was ‘the extent to which the current policy and regulatory framework has failed, including in relation to data protection’.

I started writing a blog post on the way back from London, and got as far as the above, when an e mail from the good people at 11KBW  (Panopticon Blog) landed in my inbox.

On well if you can’t beat them, read them! Here is their excellent analysis of the DP recommendations of Leveson:

http://www.panopticonblog.com/2012/11/29/leveson-inquiry-report-spotlight-on-proposed-data-protection-reforms/

I was only training round the corner and passed the QE2 centre where LJ Leveson was giving his press conference. Perhaps, I should have camped out overnight to beat the Panopticon Team?

FOI and Datasets: Draft Code of Practice

The Protection of Freedoms Act will amend the Freedom of Information Act 2000 so that in the future public authorities will have greater obligations in relation to the release and publication of datasets. The key points of Section 102 of the Act (which amend section 11 of FOI) are:

  • There will be a new duty on public authorities, when releasing datasets, to adhere to any request to do so in electronic form which allows their re-use where reasonably practicable.
  • Any dataset containing copyright material (where the authority holds the copyright) must be made available for re-use under a specified licence.
  • Publication schemes will in future contain a requirement to publish datasets, which have been requested, as well as any updated versions.
  • Such datasets will also have to be published in an electronic form capable of re use and any copyright material must be available for re use in accordance with the terms of a specified licence.
  • Public authorities will be able to charge a fee for allowing re use of any datasets containing copyright material.

These provisions are likely to come into force in April 2013.  If you want to know more read Ibrahim Hasan’s detailed article. 

A recently launched mobile phone application provides a useful insight into what could be possible if public authority datasets are fully exploited. (Read about Fearsquare).

New Draft Code and Licenses

The Government recently began an online consultation about a new set of guidance to accompany the new dataset provisions. This includes a new Code of Practice (datasets), which will sit alongside the existing Section 45 Code of Practice under FOI. The new draft code also outlines the licensing framework which public authorities must use when making copyright material within datasets available for re-use.

The new draft Code of Practice (datasets) aims to make it clear as to what is meant by the terms set out in the new provisions in the FOI Act. For example, what is meant by “an electronic form which is capable of re-use” or a “re-usable format” for the purposes of the Act.

The consultation is the first I have seen where the Government is using a “crowdsourcing” method. Responders can see, in real time, what other peoples’ views on the draft code are as opposed to submitting their views to an email address and then waiting for the summary of responses to be published after the consultation is over. The aim is to enable responders to have a conversation with each other as to whether a particular paragraph, sentence or word in the new code could be improved upon.

The new code contains three standard licences available to public authorities when allowing re use of copyright material contained in a dataset which is disclosed under FOI. The first two are the Open Government Licence and the Non-Commercial Government Licence. Both allow re use of the information without charge including copying, publishing, distributing and adapting the information as well as combining it with other information. The new code encourages authorities to use the Open Government License wherever possible. The Non-Commercial Government licence is slightly more restrictive because it contains a clause preventing the use of the information “in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.” It will be interesting to see if public authorities routinely offer this licence (even though it would be against the spirit of the Act and the new code) just to prevent the private sector from profiting from the dataset.

The third type of licence is the Charged Licence. This has been published by The National Archives in beta form . It can be used by public authorities that have reason to charge for the re-use of the dataset information they hold or produce. As I have said before, this provides an opportunity for public authorities to raise some much needed revenue. However it will be interesting to see if the Secretary of State exercises his power (under new Section 11B of FOI) to make regulations prescribing “the amount of any fee payable or providing for any such amount to be determined in such manner as may be prescribed, provide for a reasonable return on investment.

The consultation ends on 10th January 2013. Public authorities need to think now what datasets they may receive requests for and what their approach to licensing their re use will be.

FOI Update webinar – This and other FOI developments and cases will be discussed in our forthcoming FOI Update web seminar: http://www.actnow.org.uk/content/93

Privacy Conference – Call for Papers

The Fifth Northumbria Information Rights Conference will take place on Wednesday 1 May 2013 at the Centre for Life, Newcastle Upon Tyne, UK.   The theme of the conference will be “Changing notions of privacy”.

The aim of the conference is both to explore developing understandings of privacy, and the tensions that exist between privacy, openness and freedom of expression. The following topics will be explored within the overall theme, and papers will be grouped for presentation accordingly:

  • What is privacy?
  • Privacy v freedom of expression
  • Technology and the challenges of protecting privacy
  • Privacy in a commercial context
  • Privacy and the Freedom of Information Act 2000
  • Privacy or openness
  • Privacy and the Data Protection Act 1998

The university will also consider abstracts which do not fall within these themes but which are nonetheless relevant to the overall theme.

This call is open to academics, postgraduate students and practitioners from all disciplines, but particularly law, politics, information science and records management. Ibrahim Hasan presented a paper to this conference last year examining the Government’s proposals to change RIPA and whether they were a sledgehammer to crack a nut. We would urge our readers to get involved.

Those interested in presenting a paper are invited to submit abstracts to the conference administrator Maureen Cooke: email maureen.cooke@northumbria.ac.uk. Abstracts should be submitted by 7th December 2012. They should not exceed 300 words. Submission must be by Word document e-mail attachment at the email address shown above and should include, in addition to the abstract, your title, name and organisation/institutional affiliation and your email address for correspondence.

All proposals will be reviewed, and successful applicants will be notified at the latest by 21st December 2012. Please contact maureen.cooke@northumbria.ac.uk for any general enquiries about the conference or telephone 0191 243 7597.

RIPA, CHIS and the IPT

A recent legal case about undercover police officers’ activities whilst investigating protest groups, has raised the importance of RIPA forms being completed correctly and care being taken when authorising them.

Ten women have launched  a legal action claiming they were tricked into forming “deeply personal” relationships with undercover police officers acting as a Covert Human Intelligence Source (CHIS) under Part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA). The case is the first civil action to be brought before a court.

Three of the women referred to in court had intimate relationships with Mark Kennedy, who spent seven years living as an environmental campaigner. Kennedy’s deployment was made public last year after activists worked out he was a police spy.

Lawyers for the police are currently applying to have the case moved from the High Court to “a secret Tribunal”. Normally cases involving a breach of RIPA are heard by the Investigatory Powers Tribunal (IPT). Most cases heard by the Tribunal are in private and not open to the media. Very few judgements are published. Most cases are about conduct by, or on behalf of, the Intelligence Services (MI5, MI6and GCHQ). The Tribunal has the power to award damages to complainants and to quash or cancel any authorisation to do the surveillance.

Not surprisingly, the IPT is the forum of choice for the police in this case. According to a report in The Guardian:

“Monica Carrs Frisk QC, representing the police, said their argument was not about denying the women remedy, but determining the correct forum for determining their claims.The police argue the case should be heard in the investigatory powers tribunal, as it was set up specifically to consider allegations of unjustifiable surveillance by the state.They also argue they may be unable defend the case because they have a long-established policy of neither confirming nor denying the identity of undercover police officers.”

When the Kennedy case came to light, Her Majesty’s Inspectorate of Constabulary (HMIC) conducted a report into the circumstances. It concluded that, whilst undercover officers deployed into protest communities gathered intelligence which enabled the police to prevent acts of serious violence, there was serious intrusion into the lives of others, and this risk needs to be better managed in the future.

More will come about these cases especially if (as is likely) the civil case remains in the High Court. The circumstances shows the importance of all public authorities, not just the police, considering the applicability of Part 2 of RIPA , especially the CHIS provisions, very carefully when engaging staff to “go undercover”. In addition to the usual considerations of necessity and proportionality, the CHIS authorisation form  requires a risk assessment to be done, together with a need to have a separate CHIS Handler and a Controller. Detailed records also need to be kept in accordance with the RIPA (Source Records) Regulations 2000 (SI 2000/2725). If these roles were carried out correctly then abuses of RIPA, as in this case, would be very rare.

Of course local authorities are very infrequent users of the CHIS process (and they certainly do not authorise CHIS operations involving sleeping with the targets!). Any potential for abuse has been minimised even further by the Protection of Freedoms Act 2012 (sections 37 and 38) which came into force on 1st November 2012. This changes the procedure for the authorisation of local authority surveillance under RIPA. From 1st November, local authorities have been required to obtain the approval of a Magistrate for the use of any one of the three covert investigatory techniques available to them under RIPA namely Directed Surveillance, the deployment of a Covert Human Intelligence Source and accessing communications data. On 5th November, Gateshead Council received (what could be) the first Magistrates’ approval.

The case of Mark Kennedy (and others) does beg the question; Is it time the police were required to seek judicial approval for surveillance under RIPA? Should we even stop there? What about surveillance abuses by the press which have come to light as a result of the Leveson Inquiry? Is it time to RIPA it up and start again?

Act Now can help you prepare for the new RIPA process. We have an update  course in December in London. If you would like advice on what needs to be done or customised in house training, please get in touch.

Finally all RIPA authorities need to revise their guidance and policy documents. See our RIPA Policy and Procedures Toolkit.

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