July 2011 Archives

The Information Commissioner's Office have eventually got around to a Decision Notice regarding the Spy Blog FOIA request which aimed to test whether the new Conservative / Liberal Democrat Coalition Government had really changed the culture of secrecy with which the Labour government used to try to hide its incompetency from the public, regarding the controversial Terrorism Act section 44 stop and search without reasonable suspicion powers for Police Constables in Uniform.

Even though the balance of public interest test must surely have changed even more in favour of disclosure, the ICO has weaselled out of ruling in favour of ordering full disclosure, again, by not considering anything which happened after our FOIA request back in June last year.

Is there a coded message that if we re-submit the request now that the new law on stop and search is actually in force, we might be more successful this time ?

As is usual with all of our FOIA requests, the Information Commissioner has found the the Home Office broke the law, yet again, by failing to meet the statutory timescales for answering our request - why can't they be at least fined each time that they do this ?


Reference: FS50374879

ICO

Freedom of Information Act 2000 (Section 50)
Decision Notice Date: 21 July 2011

Public Authority: Address:

Home Office
Peel Building
2 Marsham Street
London
SW1P4DF



Complainant: Address:

[name and address]

Summary
The complainant requested information relating to Authorisations for stop and search powers under section 44 of the Terrorism Act 2000. The public authority withheld the information on the basis of the exemption at section 24(1), and further decided that, in all the circumstances of the case, the public interest in maintaining the exemption outweighed the public interest in disclosure.

The Commissioner upheld the public authority's decision to withhold the information on the basis of section 24(1). He however found the public authority in procedural breach of the Act.

The Commissioner's Role

The Commissioner's duty is to decide whether a request for information made to a public authority has been dealt with in accordance with the requirements of Part 1 of the Freedom of Information Act 2000 (the "Act"). This Notice sets out his decision.

Background

2. Prior to 18 March 2011, Authorisations for stop and search powers under section 44 of the Terrorism Act 2000 could be granted by the Secretary of State to police forces across the United Kingdom for a maximum of 28 days. In November 2007 the complainant requested information from the public authority regarding Authorisations approved for stop and search powers under the Terrorism Act 2000. The public uthority's refusal to disclose the information requested on the basis of the exemption at section 24(1) was subsequently upheld by the Commissioner in a decision notice issued on 8 February 2010.1

1 The decision is available at:
http://www.ico.aov.Uk/~/media/documents/decisionnotices/2010/FS 50198 733.ashx


3. Following the European Court of Justice's (ECJ) decision in Gillan and Quinton v the United Kingdom (Application no. 4158/05) in January 2010, the Secretary of State issued a Remedial Order2 amending parts of the Terrorism Act 2000. The Order which came into force on 18 March 2011 repealed sections 44 to 47(g) relating to Authorisations for stop and search powers. The repealed sections were however replaced with provisions which include granting senior police officers the power to authorise the use of stop and search powers for a maximum of 14 days.

2 Prevention and Suppression of Terrorism. Terrorism Act 2000 (Remedial) Order 2011 No.631

The Request

4. On 11 June 2010 the complainant requested the following information in relation to stop and search powers under the Terrorism Act 2000:

The Time, Date, Duration, and Geographical extent (either in words or on a map or plan etc) of:

1. Authorisations which the Secretary of State has been informed of under section 46(3)
2. Authorisations which have not been confirmed by the Secretary of State and which have lapsed under section 46(4)
3. Authorisations modified by the Secretary of State under section 46(5)e
4. Authorisations which have been cancelled by the Secretary of State under section 46(6), and
5. Authorisations renewed in writing under section 46(7)
6. The name of the Minister who signed each authorisation and when the approval was given.


5. He specified that the information provided should cover the period from when the Terrorism Act 2000 (referred to hereinafter as the Terrorism Act) came into force to the date of the request. The public authority confirmed that the Terrorism Act came into force in February 2001. The request was therefore treated as covering related information from February 2001 to 11 June 2010.

6. The complainant had made substantively the same request to the public authority in November 2007 regarding Authorisations for the power to stop and search under the Terrorism Act 2000.

7. On 6 July 2010 the public authority issued a refusal notice relying on the exemptions at sections 24(1) and 31. It however advised the complainant that it needed additional time to consider the public interest fully.

8. On 27 September 2010 the public authority responded following a number of additional extensions to consider the public interest. It noted that the complainant had requested similar information in November 2007 which was refused. The public authority further noted that the Commissioner did not uphold the subsequent complaint in relation to the refusal to disclose the information in November 2007. The public authority therefore explained that it was withholding the information requested on the basis of section 24(1) for the same reasons already considered by the Commissioner in the previous complaint. It however provided the complainant with a list of Ministers who had confirmed authorisations within the period covered by the request.

9. On 7 November 2010 the complainant requested a review of the public authority's decision.

10. On 6 December 2010 the public authority wrote back to the complainant with details of the outcome of the internal review. The original decision to withhold the information requested was upheld.

The Investigation

Scope of the case

11. On 7 February 2011 the complainant contacted the Commissioner to complain about the way his request for information had been handled.

12. In light of the disclosure by the public authority in relation to item 6 of the request, the Commissioner clarified with the complainant (on 21 March 2011) that the scope of the investigation in relation to item 6 would still cover 'the name of the Minister who signed each authorisation issued between February 2001 and 11 June 2010 and
when their approval was given'.

13. The information covered by the scope of the investigation in relation to items 1-5 of the request also remained as outlined in paragraph 5 above.

14. The complainant specifically asked the Commissioner to consider the points outlined below.

15. According to the complainant, the balance of the public interest had changed substantially (since his previous request in November 2007) in favour of full disclosure for the following reasons:

• The Coalition Government had effectively suspended the use of section 44 stop and search powers,
• The public authority had admitted many clerical errors which resulted in hundreds or thousands of illegal stops and searches, something which could not have happened if the limits and geographical extent of each section 44 Authorisation had be made public,
• The ECJ judgement in Gillan and Quinton v the United Kingdom made the Terrorism Act illegal, and
• It is important for public debate and for Parliamentary scrutiny of new legislation that the geographical locations and the dates and times of the 'use and abuse' of these section 44 powers should be clear and transparent.
• The complainant also suggested that subsequent to both his requests of 2007 and 2010, individual Police forces had disclosed information relevant to his requests. In his own words, " it appears that individual Police forces such as the Metropolitan Police Service have disclosed, the time, date, and geographical extent of the Section 44 Authorisation requests they have made to the Home Secretary."

Analysis

Exemptions

16. It is important to note from the outset that the Commissioner's investigation was restricted to matters which were relevant at the time of the request and not after the request was made.

17. As noted above, the Commissioner issued a decision notice on 8 February 2010 in case FS50198733 in relation to the request of November 2007 ("the previous decision notice").

18. Items 1-5 of both requests (i.e. November 2007 and June 2010) are substantively the same. However, the request of November 2007 was not restricted to the time, date, duration, and geographical extent (either in words or on a map or plan etc) of the Authorisations.

19. Item 6 was not part of the request of November 2007.

20. The public authority explained in its letters of 27 September and 6 December that, in its view, paragraph 58 of the decision notice in case FS50198733 had satisfactorily dealt with the issue of the time, date, duration, and geographical extent of the Authorisations.

21. The public authority further explained to the complainant that section 24(1) equally applied to item 6 of the request for the same reasons considered by the Commissioner in the previous decision notice.

Section 24(1)

22. Information is exempt on the basis of section 24(1) if it does not fall within section 23(1) and is required for the purpose of safeguarding national security.

23. The Commissioner finds that items 1-5 of the request were exempt on the basis of section 24(1) for the same reasons already explained in the previous decision notice especially at paragraph 58.

24. In terms of item 6, the public authority further relied on the previous decision notice to the extent that the Commissioner had specifically noted that disclosure of details of the Authorisations such as dates, times, and geographical extent could enable terrorists ascertain the likelihood of their activities coming to the attention of the police or
anti-terrorist agencies.

25. The Commissioner also considers that disclosing the information requested under item 6 would have revealed information about the Authorisations and the dates they were approved. This information could be used by terrorists in conjunction with information obtained from reconnaissance activities to ascertain the likelihood of their activities coming to the attention of security agencies.


That is utter nonsense.

The ICO and the Home Office might as well argue that revealing that there are about 30,000 Metropolitan Police Officers somewhere within the 125 mile circumference of the M25 Orbital motorway around London, could somehow reveal to terrorists "the likelihood of their activities coming to the attention of security agencies."

The FOIA request was not asking for precise details of roadblocks or patrol patterns or any background intelligence information, only for what is clearly laid down in the text of the Terrorism Act 2000 i.e. only the Time, Date, Duration, and Geographical extent of these supposedly strictly time and location limited exceptional police powers.

How can innocent members of the public be expected to obey a law which is amended in secret by the police and the bureaucrats and rubber stamped by the politicians ?

26. In summary, the Commissioner finds that the information requested in items 1-6 above was correctly withheld on the basis of the exemption at section 24(1).

Public Interest Test

27. The exemption at section 24(1) is qualified by the public interest test. The Commissioner has therefore to consider whether in all the circumstances of the case the public interest in maintaining the exemption outweighed the public interest in disclosure.

28. The public authority relied fully on the public interest arguments considered in the previous decision notice in support of its decision to withhold the information requested.

29. The Commissioner is persuaded that the public interest assessment in the decision notice applies equally to this request. He has however further considered whether the specific public interest arguments advanced by the complainant had shifted the balance in favour of disclosure at the time of the request in June 2010.

Balance of the public interest arguments

30. According to the complainant, the Coalition Government had effectively suspended the use of section 44 stop and search powers.

31. The Commissioner agrees that the power to grant Authorisations under section 44 to 47(g) of the Terrorism Act was repealed by the Remedial Order. However, Authorisations to stop and search under the Terrorism Act can still be granted by senior police officers. The difference is that the provisions in sections 44 to 47(g) of the Terrorism Act no longer apply. Also, given that the request was made in June 2010 before the Remedial Order came into force in March 2011, sections 44 to 47(g)
were in any event still in force at the time of the request.

32. Therefore, at the time of the request, the public interest was certainly not in favour of disclosure on the grounds that the use of section 44 had been suspended. In addition, the public interest was not then in favour of disclosure on the grounds that powers for Authorisations for stop and search under the Terrorism Act no longer existed. Indeed, the powers are still in use, but no longer by virtue of sections 44 to 47(g).
Therefore, for the same reasons he found in the previous decision notice that there was a stronger public interest in not disclosing details of the Authorisations, he also finds that the public interest in disclosure did not outweigh the public interest in maintaining the exemption at the time of the request in June 2010.

33. According to the complainant, the public authority had admitted many clerical errors which resulted in hundreds or thousands of illegal stops and searches, something which could not have happened if the limits and geographical extent of each section 44 Authorisation had be made public.

34. The complainant further argued that it is important for public debate and for Parliamentary scrutiny of new legislation that the geographical locations and the dates and times of the 'use and abuse' of these section 44 powers should be clear and transparent.

35. Whilst the complainant did not provide any specific evidence to support the above assertion, the Commissioner is aware that there have been quite a number of incidents where the use of section 44 powers was questioned by the media, courts and politicians. It is accurate to say therefore that the use of section 44 powers has not been without
controversy.

36. However, the balance the Commissioner has to strike is between protecting information on national security grounds and disclosure to promote transparency and accountability. The Commissioner is not persuaded that the public interest in disclosing the information about Authorisations requested in items 1-6 outweighs the significant public interest in protecting the security of the United Kingdom and its
citizens.

37. According to the complainant, the ECJ judgement in Gillan and Quinton v the United Kingdom made the Terrorism Act illegal.

38. The Commissioner has already noted that the government introduced a Remedial Order amending part of the Terrorism Act following the ECJ ruling in Gillan and Quinton v the United Kingdom.

39. The ECJ judgement was handed down on 12 January 2010. Given that Authorisations for stop and search powers under the Terrorism Act could still be granted up until 18 March 2011, the Commissioner finds that, at the time of the request in June 2010, the public interest was still in favour of maintaining the exemption at section 24(1). Also, for the reasons already noted above at paragraph 32 alone the
Commissioner in any event finds that the public interest in maintaining the exemption outweighed the public interest in disclosure.

40. The complainant also suggested that subsequent to both his requests of 2007 and 2010, individual Police forces had disclosed information relevant to his requests. In his own words, " it appears that individual Police forces such as the Metropolitan Police Service have disclosed, the time, date, and geographical extent of the Section 44 Authorisation requests they have made to the Home Secretary."

41. The complainant did not provide any specific evidence in support of the above assertion. In any event, the Commissioner would not have taken into account information which was disclosed after the request of 11June 2010.

Procedural Requirements

42. Under section 10(1) a public authority must comply with the provisions of section 1(1) promptly and in any event no later than 20 working days.

43. Under section 10(3) a public authority may extend the time for compliance where it is necessary to do so in order to properly consider the public interest.

44. Under section 17(3)(b) a public authority must complete its public interest test within a reasonable period in the circumstances.

45. The Commissioner considers that in no case should a public authority take more than 40 working days to consider the public interest. The public authority took over three months to conduct the public interest test in relation to the information withheld on the basis of the section 24(1) exemption.

46. The Commissioner therefore finds the public authority in breach of
section 17(3)(b).

The Decision

47. The Commissioner's decision is that the public authority dealt with the
following elements of the request in accordance with the requirements
of the Act:
•The public authority correctly withheld the information requested in
items 1-6 on the basis of the exemption at section 24(1).

48. However, the Commissioner has also decided that the following
elements of the request were not dealt with in accordance with the Act:
• The public authority breached section 17(3)(b).

Steps Required

49. The Commissioner requires no steps to be taken.

Right of Appeal

50. Either party has the right to appeal against this Decision Notice to the
First-tier Tribunal (Information Rights). Information about the appeals
process may be obtained from:
First-tier Tribunal (Information Rights)
GRC &GRP Tribunals,
PO Box 9300,
Arnhem House,
31, Waterloo Way,
LEICESTER,
LEI 8DJ
Tel: 0300 1234504
Fax: 01162494253
Email: informationtribunal@tribunals.gsi.qov.uk.
Website: www.informationtribunal.gov.uk

51. If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website.

52. Any Notice of Appeal should be served on the Tribunal within 28
(calendar) days of the date on which this Decision Notice is sent.

Dated the 21st day of July 2011

Signed

Graham Smith

Deputy Commissioner
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

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

Here is our PGP public encryption key or download it via a PGP Keyserver.

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.

FreeFarid_150.jpg
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)

Open_Rights_Group.png
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).

irrepressible_banner_03.gif
Amnesty International's irrepressible.info campaign

anoniblog_150.png
BlogSafer - wiki with multilingual guides to anonymous blogging

ngoiab_150.png
NGO in a box - Security Edition privacy and security software tools

homeofficewatch_150.jpg
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 ?

rsf_logo_150.gif
Reporters Without Borders - Reporters Sans Frontières - campaign for journalists 'and bloggers' freedom in repressive countries and war zones.

committee_to_protect_bloggers_150.gif
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."

Icelanders_are_NOT_Terrorists_logo_150.jpg
Icelanders are NOT terrorists ! - despite Gordon Brown and Alistair Darling's use of anti-terrorism legislation to seize the assets of Icelandic banks.

nocctv.gif
No CCTV - The Campaign Against CCTV

phnat-logo-black-on-white_150.jpg

I'm a Photographer Not a Terrorist !

power2010_132.png

Power 2010 cross party, political reform campaign

Cracking_the_Black_Box_black_150.jpg

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."

surveillance_72.jpg

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.

Syndicate this site (XML):

Recent Comments

  • wtw: This has now been published, for what it is worth read more
  • wtwu: Anonymous briefings to the mainstream press that the truncated Gibson read more
  • wtwu: Rendition report still unpublished nine months after completion Although government read more
  • wtwu: The clock is till ticking and the Cabinet Office is read more
  • GF: They obviously just wanted more time to respond, illegally (ironically read more
  • Geoff Hillyard: My police Union told be that I would be read more
  • Geoff Hillyard: My earlier letter talking about the lie that I read more
  • wtwu: Apart from an automatic email dispaly receipt from public.enquiries@homeoffice.gsi.gov.uk Spy read more
  • wtwu: This Decision Notice is now available as a(.pdf) from the read more
  • wtwu: The ICO has now published this Deciaion Notice as a read more

December 2014

Sun Mon Tue Wed Thu Fri Sat
  1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31      

Categories