September 2009 Archives

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


[name]
[email]

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
London
SW1P 4DF
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]


Annex
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.

Home Office FOIA Internal Review - now delayed 3 times

There appears to be something seriously wrong with the FOIA request management systems in the Home Office.

Even this Internal Review has now been delayed 3 times !

From: [IMS civil servant]@homeoffice.gsi.gov.uk>
To: "[email]
Date: Tue, 01 Sep 2009 12:07:56 +0100

Dear [name]

Further to my correspondences below, I regret to inform you that your
internal review (Time Complaint) is yet to be completed. I am
experiencing difficulty In ascertaining the specifics of the case and
have elevated these issues up the managerial chain. I apologise for
this ongoing delay and again assure you that I am doing everything in my
power to get the response issued to you as soon as possible. I now aim
to respond to you by no later than the 25th September 2009.

You have the right of complaint to the Information Commissioner, as
established by section 50 of the Freedom of Information Act. Please
find below the address you can write to him at:

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

Many Thanks

{IMS civil servant]
Information Management Service | Financial and Commercial Group
Ground Floor | Seacole Building | Home Office | 2 Marsham Street |
London SW1P 4DF
Switchboard Number: 0207 035 4848


-----Original Message-----
From:{IMS civil servant}
Sent: 14 August 2009 11:39 AM
To: [email]
Subject: nnnnn - [name] - Internal Review - Time Complaint -
Further Deadline extension and apology

Dear [name]

Further to my correspondence on the 30th July 2009, I must once again
inform you that your Internal Review (Time Complaint) has not yet been
completed. I apologise for this delay and assure you that I am doing
everything within my power to complete this Time Complaint review and am
also still pushing for the response to be issued in regard to your
original request for information.

I now aim to respond to you by no later than the 1st September 2009.

If you have any questions please feel free to contact me.

Many Thanks


[IMS civil servant]
Information Management Service | Financial and Commercial Group
Ground Floor | Seacole Building | Home Office | 2 Marsham Street |
London SW1P 4DF
Switchboard Number: 0207 035 4848


-----Original Message-----
From: [IMS civil servant]
Sent: 30 July 2009 3:14 PM
To: [email]
Subject: nnnnn - Internal Review - Time Complaint - Deadline extension
and apology letter

Dear [name]

I write further to my original correspondence below sent on the 20th
July 2009. I regret to inform you that the Internal Review (Time
Complaint) has not yet been completed. This is due to a number of
issues surrounding this case. I offer my sincerest apologies and now
aim to complete the review no later than the 14th August 2009.

In the mean time I will still be pressing that a response to your case
should be issued as soon as possible.

If you have any questions please feel free to contact me.

Yours Sincerely

[IMS civil servant]
Information Management Service | Financial and Commercial Group
4th Floor | Seacole Building | Home Office | 2 Marsham Street | London
SW1P 4DF
Switchboard Number: 0207 035 4848


-----Original Message-----
From:[IMS civil servant]
Sent: 20 July 2009 9:50 AM
To: [email]
Subject: nnnnn - Internal Review - Time Complaint - Acknowledgement
letter

[name]

I am writing to you in response to your request for an Internal Review
(Time Complaint) of the handling of your request within your email
received by the Home Office on the 16th July 2009.

I will be conducting the procedural review and the request case number
is nnnnn We aim to send you a response to this complaint by the 29th
July 2009. I will be in touch again shortly, but please do not hesitate
to contact me if you have any queries about the handling of your request
in the meantime.

Many Thanks

[IMS civil servant]
Information Management Service | Financial and Commercial Group
4th Floor | Seacole Building | Home Office | 2 Marsham Street | London
SW1P 4DF
Switchboard Number: 0207 035 4848


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Finally after a request for an Internal Review (which itself has been delayed 3 time - see next blog article), aand a complaint to the Information Commissioner's Office (which was to be resolved informally), here is the sort of reply we were expecting in the early part of June 2009:


From: public.enquiries@homeoffice.gsi.gov.uk Add contact
To: [email]
Date: Wed, 26 Aug 2009 16:14:53 +0100

Reference : Tnnnn/9

Thank you for your e-mail enquiry of 02/06/2009 11:06:56 AM

An Interim reply is attached.

---------------------

Direct Communication 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

[email]
[name]


Reference: Tnnnn/9

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 can confirm that this information is held, but I regret that we are unable to send you a full response to your request within 20 working days, as required by the Freedom of Information Act. This is because we are considering whether or not the information should be disclosed.

In reaching that decision, we need to consider whether Section 31 (Prejudice to Law Enforcement Concerns) or Section 43 (Commercial Interests) apply and whether disclosure of the information would be in the public interest.

I would like to apologise for this delay and for any inconvenience that this may cause. I would like to assure you that we are dealing with your request as a matter of urgency, and that we will send you a full reply as soon as possible. We now aim to send you a full reply by 16 September

If you have any queries about the handling of your information request in the meantime then please do not hesitate to contact me.

Yours sincerely,

[name of civil servant]

About this blog

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.

If you have suggestions for other FOIA requests,  bearing in mind the large list of exemptions, then email them to us, or use the comments facility on this blog, and we will see  what we can do, without you yourself having to come under the direct scrutiny of  "Sir Humphrey Appleby" or his minions.

Email Contact

Please feel free to email us your views about this website or news about the issues it tries to comment on:

email: blog @spy[dot]org[dot]uk

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WhatDoTheyKnow.com

WhatDoTheyKnow.com - FOIA request submission and publication website from MySociety.org

Campaign Button Links

Watching Them, Watching Us - UK Public CCTV Surveillance Regulation Campaign
UK Public CCTV Surveillance Regulation Campaign

NO2ID Campaign - cross party opposition to the NuLabour Compulsory Biometric ID Card
NO2ID Campaign - cross party opposition to the NuLabour Compulsory Biometric ID Card and National Identity Register centralised database.

Gary McKinnon is facing extradition to the USA under the controversial Extradition Act 2003, without any prima facie evidence or charges brought against him in a UK court. Try him here in the UK, under UK law.
Gary McKinnon is facing extradition to the USA under the controversial Extradition Act 2003, without any prima facie evidence or charges brought against him in a UK court. Try him here in the UK, under UK law.

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FreeFarid.com - Kafkaesque extradition of Farid Hilali under the European Arrest Warrant to Spain

Peaceful resistance to the curtailment of our rights to Free Assembly and Free Speech in the SOCPA Designated Area around Parliament Square and beyond
Parliament Protest blog - resistance to the Designated Area restricting peaceful demonstrations or lobbying in the vicinity of Parliament.

Petition to the European Commission and European Parliament against their vague Data Retention plans
Data Retention is No Solution - Petition to the European Commission and European Parliament against their vague Data Retention plans.

Save Parliament: Legislative and Regulatory Reform Bill (and other issues)
Save Parliament - Legislative and Regulatory Reform Bill (and other issues)

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Open Rights Group

The Big Opt Out Campaign - opt out of having your NHS Care Record medical records and personal details stored insecurely on a massive national centralised database.

Tor - the onion routing network
Tor - the onion routing network - "Tor aims to defend against traffic analysis, a form of network surveillance that threatens personal anonymity and privacy, confidential business activities and relationships, and state security. Communications are bounced around a distributed network of servers called onion routers, protecting you from websites that build profiles of your interests, local eavesdroppers that read your data or learn what sites you visit, and even the onion routers themselves."

Tor - the onion routing network
Anonymous Blogging with Wordpress and Tor - useful Guide published by Global Voices Advocacy with step by step software configuration screenshots (updated March 10th 2009).

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Amnesty International's irrepressible.info campaign

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BlogSafer - wiki with multilingual guides to anonymous blogging

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NGO in a box - Security Edition privacy and security software tools

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Home Office Watch blog, "a single repository of all the shambolic errors and mistakes made by the British Home Office compiled from Parliamentary Questions, news reports, and tip-offs by the Liberal Democrat Home Affairs team." - does this apply to the Conservative - Liberal Democrat coalition government as well ?

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Reporters Without Borders - Reporters Sans Frontières - campaign for journalists 'and bloggers' freedom in repressive countries and war zones.

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Committee to Protect Bloggers - "devoted to the protection of bloggers worldwide with a focus on highlighting the plight of bloggers threatened and imprisoned by their government."

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Icelanders are NOT terrorists ! - despite Gordon Brown and Alistair Darling's use of anti-terrorism legislation to seize the assets of Icelandic banks.

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No CCTV - The Campaign Against CCTV

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I'm a Photographer Not a Terrorist !

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Power 2010 cross party, political reform campaign

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Cracking the Black Box - "aims to expose technology that is being used in inappropriate ways. We hope to bring together the insights of experts and whistleblowers to shine a light into the dark recesses of systems that are responsible for causing many of the privacy problems faced by millions of people."

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Open Rights Group - Petition against the renewal of the Interception Modernisation Programme

Yes, Minister

Yes, Minister Series 1, Episode 1, "Open Government" First airtime BBC: 25 February 1980

"Bernard Woolley: "Well, yes, Sir...I mean, it [open government] is the Minister's policy after all."
Sir Arnold: "My dear boy, it is a contradiction in terms: you can be open or you can have government."

FOIA Links

Campaign for the Freedom of Information

Office of the Information Commissioner,
who is meant to regulate the Freedom of Information Act 2000 in England, Wales and Northern Ireland.

Scottish Information Commissioner,
who similarly regulates the Freedom of Information Act (Scotland) 2002

Information Tribunal - deals with appeals against decisions by the Information Commissioners.

Freedom of Information pages - Department for Constitutional Affairs

Friends of the Earth FOIA Request Generator and links to contact details for Central Government Departments and their Publication Schemes

UK Government Information Asset Register - in theory, this should point you to the correct Government documents, but in practice...well see for yourself.

Access all Information is also logging some FOIA requests

foi.mysociety.org - prototype FOIA request submission, tracking and publication website

Blog Links

Spy Blog

UK Freedom of Information Act Blog - started by Steve Wood, now handed over to Katherine Gundersen

Your Right To Know - Heather Brooke

Informaticopia - Rod Ward

Open Secrets - a blog about freedom of information by BBC journalist Martin Rosenbaum

Panopticon blog - by Timothy Pitt-Payne and Anya Proops. Timothy Pitt-Payne is probably the leading legal expert on the UK's Freedom of Information Act law, often appearing on behlaf of the Information Commissioner's Office at the Information Tribunal.

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