Recently in HO Terrorism Act 2000 s44 Authorisations Category

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

Why has it taken the Home Ofice so long not to consider the new balance of Public Interest in favour of disclosure, compared to our original Freedom of Information Act request back in 2007 ?

What is so difficult about telling us exactly when and where tempoarary , extrordinary legal powers actually apply ?

Given the revelations by the new Conservative / Liberal Democrat governmet of so many mistakes by Regional Police Forces, the central Metropolitan Police unit, Home Office civil servants and the politicians at the Home Office, regarding these Terrorism Act 2000 section 44 / 45 Authorisations, which haveresulted in in hundreds or thousands o illegal stops and searches, we must conclude that, contrary to the Freedom of Information Act, the real reason for the refusal of our FOIA request is politcal coverup rather than genuine national security.

Home Office
Office for Security and Counter-Terrorism
2 Marsham Street, London SW1P 4DF
OSCTFOI@homeoffice.x.gsi.gov.uk Website: www.homeoffice.gov.uk

FOI reference: 15213

[name]
[email]

27 September 2010

Dear [name]

I am writing further to my e-mail of 1 September 2010 about your request for information on s44 (Terrorism Act 2000) authorisations. Your request has been handled as a request for information under the Freedom of Information Act 2000.

You made a request for similar information on s44 authorisations in November 2007. The request for that information was considered by the Home Office and, subsequently, the Information Commissioner's Office (ICO). In their Decision Notice of 8 February 2010 (ref: FS50198733) the Commissioner held that the requested information was properly withheld under the exemption at section 24 (1) of the Freedom of Information Act. Consequently, I am of the opinion that the Home Office has fully considered the requests for information on points 1 - 5 in your current request. I do not believe that it is necessary to address these requests once more as our assessment remains that the disclosure of the information you requested would damage national security, for the same reasons as previously provided.

In addition to the above requests, you also asked to be informed of which Ministers have confirmed which s44 authorisations (and when) between February 2001 (when the Terrorism Act 2000 came into force) and 11 June 2010. In the ICO's Decision Notice of February 2010, the Commissioner indicated that the disclosure of details such as dates, times and geographical locations (i.e. which forces have authorised use of the power) could assist terrorists by allowing them to '...ascertain the likelihood of their activities coming to the attention of the police or anti-terrorist agencies'. The Commissioner was of the opinion '..that any advantages gained by further informing the public would be significantly outweighed by the factors for protecting the public by maintaining the exemption' (i.e. Section 24(1)). Consequently, the Home Office considers that details of the forces who had S44 authorisations in place and when these authorisations were in place come within the exemption at S24(1). From the information available,however, I have provided a list of those Ministers who have confirmed s44 authorisations in this period - see annex A.

If you are dissatisfied with this response you may request an independent internal review of our handling of your request by submitting a complaint within two months to the address below, quoting reference 15213. If you ask for an internal review, it would be helpful if you could say why you are dissatisfied with the response.

Information Access Team

Home Office
Ground Floor, Seacole Building
2 Marsham Street
London SW1P 4DF
e-mail: FOIRequests@homeoffice.gsi.gov.uk

As part of any internal review the Department's handling of your information request will be reassessed by staff who were not involved in providing you with this response. If you remain dissatisfied after this internal review, you would have a right of complaint to the Information Commissioner as established by section 50 of the Freedom of Information Act.

Yours sincerely

[name of civil servant]


The list of Labour politicians who have signedTerrorism Act 2000 Section 44 Stop and Search *Wwithout* Reasonable Supicion requests, is long and dishonourable.

We do not trust any of these people::

Annex A

PREVIOUS ADMINISTRATION

Name Appointment

John Denham Minister of state,

Home Office: 2001- 2003

Beverley Hughes Minister of State, Home Office:2002-04

Keith Bradley Minister of State, Home Office, 2001-02.

Bob Ainsworth Parliamentary Under-Secretary of State

Home Office, 2001-03

Angela Eagle Parliamentary Under-Secretary of State, Home
Office, 2001-02

Jeff Rooker Minister of State: 2001-02

David Blunkett Secretary of State for the Home Department: 2001-
04

Hilary Benn Parliamentary Under-Secretary of State, Home
Office, 2002-03

Michael Wills Parliamentary Under-Secretary of State: 2002-03

Lord Falconer of Thoroton Home Office (Criminal Justice, Sentencing and Law
(Charles Falconer) Reform) 2002-03,

Baron Filkin of Pimlico (Life Parliamentary Under-Secretary of State and
Baron), David Geoffrey Nigel Government Spokesperson for:
Filkin Home Office 2002-03,

Paul Goggins Parliamentary Under-Secretary of State:
Home Office 2003-06,

Caroline Flint Parliamentary Under-Secretary of State, Home
Office 2003-05;

Fiona MacTaggart Parliamentary Under-Secretary of State, Home
Office, 2003-06

Hazel Blears Minister of State, Home Office, 2003-06

Baroness Scotland of Asthal Minister of State and Government Spokesperson for
(Life Baroness), Patricia Janet Home Office 2003-07;
Scotland;

Des Browne Minister of State Home Office, 2004-05

Charles Clarke Secretary of State for the Home Department, 2004-
06.

Tony McNulty Minister of State Home Office, 2005-08;

Andy Burnham Parliamentary Under-Secretary of State, Home
Office 2005-06

John Reid Secretary of State for the Home Department, 2006-
07

Jacqui Smith Secretary of State for the Home Dept, 2007-09

Vernon Coaker Parliamentary Under-Secretary of State, 2006-08

and Minister of State, 2008-09

Meg Hillier Parliamentary Under-Secretary of State Home Office
2007-10

David Hanson Minister of State
Home Office 2009-10

Adm. Alan William John West Parliamentary Under-Secretary of State and
Government Spokesperson, Home Office 2007-10
Lord West of Spithead


It is interesting that, according to this FOIA response, neither Home Secretary Theresa May , nor any other Conservative / Liberal Democrat Home Office Ministers, apart from Baroness Neville-Jones have signed any such Authorisations:

CURRENT ADMINISTRATION

Baroness Neville-Jones of Hutton Roof Parliamentary Under-Secretary of State,
Home Office 2010 -

How long will the Home Office bureaucrats atempt to delay our request for an Internal Review ?

Another month of prevarication and delay - what is so difficult about this ?

Home Office
Office for Security and Counter Terrorism
2 Marsham Street, London SW1P 4DF
E-mail: OSCTFOI@homeoffice.x.gsi.gov.uk Website: www.homeoffice.gov.uk

{email]

[name]

FOI Reference: [nnnnn]

1 September 2010

Dear [name]

I am writing in relation to your information request dated 11 June 2010 and further to
my letter of 4 August 2010.

In keeping with the decision of the ICO (ref: FS50198733) we need to consider fully the use of the exemption in section 24 (1) of the Act, which relates to information supplied by or relating to national security.

No you do not ! Such information was not requested.

See the FOIA Section 24: National Security

It is inconceivable that any warnings or intelligence about terrorist threats passed on to Chief Constables would be exactly duplicated in the geographical extent of the area which a section 44 Authorisation would cover - it is almost certain that the area which the Police would ask for an Authorisation for, would be larger than the actual target e.g. several streets around a political party conference hotel, an area of several kilometres around an airport terminal building or runway etc.


I have noted the point you have made about section 31 in your email of 6 July. As you are aware, however, the ICO did not consider use of the exemption at section 31(1) (a), (b) and (c).

See the FOIA Section 31: Law Enforcement exemption

If this section 44 extraordinary, temporary power for "stop and search" without reasonable suspicion is meant to act a s a deterrent, the time, date and geographical location of when and where it is in force must not be kept secret !

Publishing such information would have no effect whatsoever on operational security or investigations, since the numbers and types of Police deployed to unspecified roadblocks and checkpoints is not part of such Authorisations nor was it even asked for in this FOIA request.

We will still need to address the use of this exemption when responding to your request. To take account of the points raised in your most recent email we need more time and will need a further extension. We now aim to let you have a full response by 30 September 2010.

I would like to take this opportunity to apologise for the further delay in replying to your request and assure that we will respond as quickly as possible.

Should you have any queries about the handling of your information request then please do not hesitate to contact us at the above address quoting reference [nnnnn].

Yours sincerely

[name of civil servant]


This is now the second extension of the Public Interest Test which the Home Office is taking.

The 30th of September 2010 would be 77 working days after the initial FOIA request.

This is now contrary to the Information Commissioner's Office guidelines which say that such Public Interest Test should take no more than 40 days in total, even in the most complicated cases

See Time limits on considering the public interest (GPG4) (..pdf)

[...]

our view is that public authorities should aim to respond fully to all requests within 20 working days. In cases where the public interest considerations are exceptionally complex it may be reasonable to take longer but, in our view, in no case should the total time exceed 40 working days.

Where any additional time beyond the initial 20 working days is required to consider the public interest, the public authority must still serve a "refusal notice" under section 17 of FOIA within 20 working days of a request even in those cases where it is relying on a qualified exemption and has not yet completed the public interest test.

[...]

By taking so long to consider the same Public Interest Tests which they have already done before, the Home Office seems to be trying to delay a complaint to the Information Commissioner's Office, who will not accept a complaint until the departmental Internal Review procedures have been exhausted.


We seem to be going down the same path of deliberate delay and obstruction, with the Home Office breaching the spirit of the Freedom of Information Act 2000, as before.

Remember, all that we are asking to be published is the bare minimum laid down in the text of the Terrorism Act 200 sections 44 and 45 and 46 i.e. the time and duration and geographical location of each Authorisation to suspend the normal rule of law regarding Stop and Search Without Reasonable Suspicion.

Given the recent revelations of thousands of clerical errors with the Authorisations, rendering thousands of Stops and Searches illegal and the Conservative / Liberal Democrat coalition policy changes and promises to review this legislation, surely the Public Interest is now even more in favour of full publication.

The unnecessary secrecy appears to have been used for political coverup purposes rather than for any demonstrable national security benefit.

Office for Security and Counter Terrorism
2 Marsham Street, London SW1P 4DF
E-mail: OSCTFOI@homeoffice.x.gsi.gov.uk Website: www.homeoffice.gov.uk

{email address]

[name]

FOI Reference: [nnnnn]
4 August 2010

Dear [name]

I am writing in relation to your information request dated 11 June 2010 and further to my letter of 6 July 2010. I can confirm receipt of your email dated 6 July 2010.

In keeping with the decision of the ICO (ref: FS50198733) we need to consider fully the use of the exemption in section 24 (1) of the Act, which relates to information supplied by or relating to national security. I have noted the point you have made about section 31 in your email of 6 July. As you are aware, however, the ICO did not consider use of the exemption at section 31(1) (a), (b) and (c). We will still need to address the use of this exemption when responding to your request. To take account of the points raised in your most recent email we need more time and will need a further extension. We now aim to let you have a full response by 2 September 2010.

I would like to take this opportunity to apologise for the delay in replying to your request and assure that we will respond as quickly as possible.

Should you have any queries about the handling of your information request then please do not hesitate to contact me quoting reference [nnnnn]

Yours sincerely

[name of civil servant]

A reminder to the Home Office, from the previous ICO Decision Notice:

69. Although they do not form part of this Decision Notice the Commissioner wishes to highlight the following matters of concern.

[...]


Information Notice

75. During the course of his investigation, the Commissioner has encountered considerable delay on account of the Home Office's reluctance to meet the timescales for response set out in his letters. The delays were such that the Commissioner found it necessary to issue an Information Notice in order to obtain details relevant to his investigation.

76. Accordingly, the Commissioner does not consider the Home Office's approach to this case to be particularly co-operative, or within the spirit of the Act. As such he will be monitoring the authority's future engagement with the ICO and would expect to see improvements in this regard.

See ICO Decision Notice FS50198733 - Home Office: Terrorism Act 2000 s44 stop and search Authorisations

[Home Office logo]

Office for Security and Counter Terrorism
2 Marsham Street, London SW1P 4DF
E-mail: OSCTFOI@homeoffice.x.gsi.gov.uk Website: www.homeoffice.gov.uk

{email address]#ho_foia@nym.hush.com

[XXXX]

FOI Reference: nnnnn

6 July 2010

Dear [XXXX],

Thank you for your e-mail of 11 June 2010, in which you ask for details of stop and search authorisations under Section 44 of the Terrorism Act 2000. Your request is being handled as a request for information under the Freedom of Information Act 2000.

We are considering your request. Although the Act carries a presumption in favour of disclosure, it provides exemptions which may be used to withhold information in specified circumstances. Some of these exemptions, referred to as 'qualified exemptions', are subject to a public interest test. This test is used to balance the public interest in disclosure against the public interest in favour of withholding the information. The Act allows us to exceed the 20 working day response target where we need to consider the public interest test fully.

The information which you have requested is being considered under the exemptions in sections 24 and 31 of the Act, which relate to information supplied by or relating to national security and law enforcement. These are qualified exemptions and to consider the public interest test fully we need to extend the 20 working day response period. We now aim to let you have a full response by 4 August 2010.

If you have any questions about the handling of your information request then please do not hesitate to contact us quoting the reference nnnn

Yours sincerely,

{name of civil servant]


N.B. our FOIA request re-emphasised that we are not requesting any information from the background or tactical intelligence, which may have been submitted to the Home Secretary in order to justify the supposedly temporary suspension of the normal laws on stop and search in a particular area, so there does not need to be any "public interest test" under the FOIA section 24 national security exemption.

Such background intelligence may well be necessary to make a reasonable decision as to whether to grant or deny an Application by a Chief Constable for Section 44 extraordinary powers, but that is not mentioned in the wording of the Terrorism Act 2000,. This Act only specifies that the Application has to include time, duration and location data and that it has to requested by someone of the appropriate rank i.e. Chief Constable / Commissioner of Police or their Deputies.

Surely, since hundreds or thousands of people may have been illegally stopped and searched, not just once or twice, but dozens of times, as the Home Office has now admitted, the public interest balance in favour of disclosure must also apply under the FOIA section 31 law enforcement exemption.

See:.

Ministerial Statement to the House of Lords:
Terrorism: Stop and Search
10 June 2010

by Baroness Neville-Jones the Minister of State (Security) at the Home Office,

http://www.theyworkforyou.com/wms/?id=2010-06-10a.66.0&s=speaker%3A13936#g66.1
HL Deb, 10 June 2010, c66WS

http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/100610-wms0004.htm#10061034000361

The number of such stupid errors would have been vastly reduced or even totally eliminated, if the Home Office had published the times, durations and location of each application of the extraordinary, supposedly temporary, section 44 stop and search without reasonable cause powers., simply because members of the public, the press and the lower rank and file of of the Police forces themselves, would have acted as a check on the handful of secretive slap dash bureaucrats and politicians who messed things up, over and over again.

If they had been open and transparent by publishing the information requested in our FOIA request, the European Court of Human Rights in Strasbourg could not have ruled against the Labour Government and the Home Office, in the CASE OF GILLAN AND QUINTON v. THE UNITED KINGDOM:

87. In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, "in accordance with the law" and it follows that there has been a violation of Article 8 of the Convention.

If the Government had been open and transparent about the supposedly temporary, strictly time and location limited Terrorism Act 2000 section 44 stop and search without reasonable suspicion powers for Police Constables in Uniform, then they would not have got into the mess which was revealed by Baroness Neville-Jones on Thursday.

In the light of the even greater public interest in disclosure, Spy Blog has repeated the FOIA request of 14th November 2007.

There must be a suspicion that the previous FOIA request was refused, not on the grounds of national security, as claimed, but to cover up administrative incompetence.

Home Office
Direct Communications Unit
2 Marsham Street
London SW1P 4DF

E-mail: To: FOIrequests@homeoffice.gsi.gov.uk
cc: public.enquiries@homeoffice.gsi.gov.uk
cc: info.access@homeoffice.gsi.gov.uk

Friday 11th June 2010

FOIA request: Terrorism Act 2000 section 44 stop and search *without* reasonable cause Authorisations (time, date, geographical extent and Ministerial authorisation only)

Dear Sirs,

Under the Freedom of Information Act 2000, please disclose the following information:

Regarding the Terrorism Act 2000 stop and search *without* reasonable cause legal power for a Constable in Uniform:

Section 44 Authorisations
http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000011_en_5#pt5-b2-l1g44

and

Section 46 Duration of authorisation
http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000011_en_5#pt5-b2-l1g46

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)

4) Authorisations which have been cancelled by the Secretary of State under Section 46 (6)

5) Authorisations renewed in writing under Section 46 (7)

6) Given the numerous administrative failures and the thousands of illegal searches, mentioned in the Ministerial Statement of 10th June 2010 by Baroness Neville-Jones (HL Deb, 10 June 2010, c66WS), I also want to see exactly which Minister signed which Authorisation and when.

Please disclose all of the Authorisations since the Terrorism Act 2000 came into force until today Friday 11th June 2010.

If that is deemed to be too many Authorisations, then please advise how this FOIA request may best be modified, according to your duty under the Freedom of Information Act 2000 Section 16 Duty to provide advice and assistance.

N.B. as per my previous Freedom of Information Act 2000 request for the same information, submitted back on the 14th November 2007 (see the ICO Decision Notice attached), I am *not* requesting any of the background intelligence material produced to support the granting of such an Authorisation.

I am *only* interested in the time, date, duration and geographical extent (either in words or on a map or plan etc.) of each Authorisation made under section 44 of the the Terrorism Act 2000.

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

ICO Decision Notice on my previous FOIA request.

For your information, I have attached a (.pdf) copy of the Decision Notice Reference: FS50198733 of the 8th February 2010.

http://www.ico.gov.uk/upload/documents/decisionnotices/2010/fs_50198733%20.pdf

There must not be a repeat of the delays which caused the Information Commissioner to issue an Information Notice, breach of which amounts to a Contempt of Court by the individuals responsible:

"63. The information request in this case was made on 14 November 2007. The public authority failed to comply with section 1(1) until 8 February 2008. In failing to provide a response compliant with section 1(1) within 20 working days of receipt of the request, the public authority breached section 10(1).

[...]

Information Notice

75. During the course of his investigation, the Commissioner has encountered considerable delay on account of the Home Office's reluctance to meet the timescales for response set out in his letters. The delays were such that the Commissioner found it necessary to issue an Information Notice in order to obtain details relevant to his investigation.

76. Accordingly, the Commissioner does not consider the Home Office's approach to this case to be particularly co-operative, or within the spirit of the Act. As such he will be monitoring the authority's future engagement with the ICO and would expect to see improvements in this regard."


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

Ministerial Statement to the House of Lords:
Terrorism: Stop and Search
10 June 2010

by Baroness Neville-Jones the Minister of State (Security) at the Home Office,

http://www.theyworkforyou.com/wms/?id=2010-06-10a.66.0&s=speaker%3A13936#g66.1
HL Deb, 10 June 2010, c66WS

http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/100610-wms0004.htm#10061034000361

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

Please provide the requested information, ideally by publishing it on your public world wide website, or alternatively by email.

Ideally this should *not* be in the form of a "copy and paste" locked Adobe .pdf file, or similar, attachment.

In the unlikely event that this information is not already available in a standard electronic format, then please explain the reasons why, when you provide the information in another format.

If you are proposing to make a charge for providing the information requested, please provide full details in advance, together with an explanation of any proposed charge.

If you decide to withhold any of the information requested, you should clearly explain why you have done so in your response, by reference to the Freedom of Information Act 2000 legislation.

If your decision to withhold is based upon an evaluation of the Public Interest, then you should clearly explain which public interests you have considered and why you have decided that the public interest in maintaining the exception(s) outweighs the public interest in releasing the information.

I look forward to receiving the information requested as soon as possible and in any event, within the statutory 20 working days from receipt of this email i.e. no later than Wednesday 7th July 2010

Yours Sincerely,

Given the recent European Court of Human Rights judgement about the controversial and widely abused Terrorism Act 2000 section 44 "stop and search" without "reasonable suspicion" legal powers, and, without any measurable positive effect on terrorism, we think that the Home Office and the Information Commissioner's Office are both very wrong in their decision to refuse our modest Freedom of Information Act request.

See European Court of Human Rights Judgment against the Terrorism Act 2000 section 44 stop and search without reasonable cause powers

More comments on this Decision Notice soon, when we have some feedback from our expert friends.

Reference: FS50198733

Information Commissioner's Office

Freedom of Information Act 2000 (Section 50)
Decision Notice Date: 8 February 2010

Public Authority: Address:
The Home Office
Seacote Building
2 Marsham Street
London
SW1P4DF

[...]

Summary


The complainant requested copies of all Authorisations for the power to stop and search issued under the Terrorism Act 2000. During the investigation, the request was refined as being for certain information contained within those Authorisations.

The public authority refused to release any information citing the exemptions at section
23 (Information supplied by or relating to, bodies dealing with security matters), section
24 (National security) and section 31 (Law enforcement). The complainant did not contest any information withheld by virtue of section 23.

The Commissioner's decision is that the exemption at section 24(1) is engaged and that the public interest in maintaining the exemption outweighs the public interest in disclosure. He finds that this exemption applies to all the remaining information sought by the complainant so the exemption at section 31 has not been further considered.

The Commissioner has also identified procedural breaches which are outlined in the Notice below. The complaint is therefore partly upheld.

[...]

59. As cited in paragraph 34 above, "... 'national security' means the security of the United Kingdom and its people". The Commissioner is of the opinion that releasing the requested information would cause specific and real threats to national security. He believes that the information could be used by terrorists to support and influence their activity. He therefore believes that any advantages gained by further informing the public would be significantly outweighed by the factors for protecting the public by maintaining the exemption. The complaint is therefore not upheld.

60. As the Commissioner finds that all of the remaining requested information (to
which section 23 does not apply) is exempt by virtue of section 24(1) he has not gone on to consider the exemption at section 31(1 )(a), (b) and (c).

[..]

The decision


66. 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 requested information was properly withheld under the exemption at section 24(1) of the Act.

67. However, the Commissioner has also decided that the following elements of the request were not dealt with in accordance with the Act:

  • in failing to provide a response compliant with section 1(1 )(a) within 20 working days of receipt of the request, the public authority breached section 10(1);
  • in exceeding the statutory time limit for providing a response the public authority breached section 17(1).

Steps required


68. The Commissioner requires no steps to be taken.


Other matters


69. Although they do not form part of this Decision Notice the Commissioner wishes to highlight the following matters of concern.

[...]


Information Notice

75. During the course of his investigation, the Commissioner has encountered considerable delay on account of the Home Office's reluctance to meet the timescales for response set out in his letters. The delays were such that the Commissioner found it necessary to issue an Information Notice in order to obtain details relevant to his investigation.

76. Accordingly, the Commissioner does not consider the Home Office's approach to this case to be particularly co-operative, or within the spirit of the Act. As such he will be monitoring the authority's future engagement with the ICO and would expect to see improvements in this regard.

[...]

Read the full Decision Notice (hopefully without too many OCR and editing errors):

The Information Commissioner's Office (ICO) has now drafted a Decision Notice, which is going up the the management hierarchy for signature, regarding the Home Office and Terrorism Act 2000 section 44 "stop and search without reasonable suspicion" Authorisations.

We did not request any of the background national security intelligence on why such Authorisations were or were not justified. We simply requested the time, date, duration and geographical area locations of where the section 44 powers were in force. These extraordinary legal powers are explicitly not meant to be used for general policing, or to be in force everywhere, all of the time.

There is no difference in practice between "secret laws", which are meant to be an anathema to British justice, and the application of an Act of Parliament in secret - the end result is just as nightmarishly Kafkaesque for thousands of innocent people caught up by them in error, without apology or compensation.

Remember that not a single terrorist has ever been caught "red handed" as a result of the hundreds of thousands of these section 44 stop and searches, Neither have any of the recent Irish republican terrorist attacks in Northern Ireland nor any of the Al Queada inspired attacks in England or Scotland been deterred by such secret stop and search Authorisations.

See this blog's HO Terrorism Act 2000 s44 Authorisations catgory archive.

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

25th June 2009

CASE REFERENCE NUMBER FSnnnnnnnn

XXX

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

[...]

Regards

[name]

Senior Complaints Officer

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

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

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

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


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

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

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

The ICO have already turned up a reference to the

Home Office Circular 038 2004

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

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

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

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

The correspondence so far:

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.

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