The Metropolitan Police has said it is "disappointing" that journalists continue to make Freedom of Information requests on the use of the Regulation of Investigatory Powers Act against news organisations.
Over the last two days, website Guido Fawkes and a number of other journalists have been accused of "working collectively" with Press Gazette to gather this information.
This was after they sent similar – but not identical – requests for information about data being gathered on news organisation telephone numbers under FoI. They, like Press Gazette earlier this month, had their requests branded "vexatious" and rejected under section 14(1) of the FoI Act.
Press Gazette has now had another FoI request rejected on the same grounds when requesting information provided by the Met Police to the Interception of Communications Commissioner's Office, for its report on police use of RIPA against journalists
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This time, though, the Met provided a more substantial response, which was also sent to Matt Burgess, of the FoI Directory. It said:
- Requests on journalists and RIPA have placed a "disproportionate burden" on the force
- It "would have expected experienced investigative journalists to have had some grasp of the sensitive environment in which these requests were being made into"
- It was "somewhat disappointing" that requests continued after explanations on why other requests could not be answered
- In 2015, it has received 16 FoI requests relating to RIPA, all but two of which have referred to journalists
- The IOCCO report showed that the Met had not been misusing RIPA, and therefore it is not in the public interest to disclose information.
Press Gazette asked the Met earlier this month: "Can you please provide me with copies of all correspondence between your force and the Interception of Communications Commissioner's Office in relation to its inquiry, published yesterday, into police use of RIPA to find journalistic sources. Please redact names and personal information where necessary… I would like to clarify that as part of this request I would like in addition to correspondence copies of any forms filled out by your force for the IOCCO."
The Met's response accepted that the FoI Act is "designed to provide opportunities whereby the public can shine a torch on the decision making and workings of a public authority".
It said: "However, this does not mean that information has to automatically be disclosed. To do so without some thought process would be reckless and likely to breach other relevant legislation, such as the Data Protection Act (DPA), and in this case, potentially, the Regulation of Investigatory Powers Act (RIPA) itself.
"In addition to this, disclosure of information relating to the police use of surveillance may also lead to damage to investigations, tactics, covert activity and operations. Therefore any requests for relevant data have to be carefully thought through and the relevant exemptions and public interest factors considered."
It said that these considerations are not simple and that neither is the process of finding the information. The response said: "There is no ability to simply press a button and the data will appear when the request is focussed on a particular occupation or circumstance in which RIPA has been used."
All previous requests to the Met were rejected on cost grounds "as the retrieval of the data would exceed the 18 hour limit".
But it said the FoI department still has to "engage with the information owners, in order to ascertain if the data can be retrieved, as we have a statutory obligation to do so".
"This immediately places additional workloads and distractions on policing departments whose primary function is to investigate the more complex and serious crimes that we have to deal with."
The response added: "In the case of requests for our use of RIPA and journalists we did not do so when the first request was received in September 2014, instead we have adopted an approach whereby applicants have been issued with refusals outlining the cost issues or where that was not applicable, complex exemptions and neither confirm nor deny responses.
"Many of these responses attracted negative articles in many national press publications such as:
"It is also important to note, that although the first request purely focused on use of RIPA and journalists was received in September 2014, we have always had requests on the more general use of RIPA. As such there is much in the public domain outlining our approach, where headline figures are released, such as:
"And
"https://foi.west-midlands.police.uk/ripa-6614/"
The response also highlighted that there have been 846 requests to various public authorities on the subject of RIPA on the whatdotheyknow.co.uk website, and said: "Analyses of the responses show that generic data is often disclosed but more focussed low level detail is more often than not refused.
"It is therefore fair to say that in addition to individual responses sent to applicants on this subject matter there is a wealth of open source data on the approach to disclosures of RIPA data under the Act, and we would have expected experienced investigative journalists to have had some grasp of the sensitive environment in which these requests were being made into.
"It is therefore somewhat disappointing if they did not already have a feel for the fact that the initial responses would not include disclosure of the low level data required. Even if they had no concept the initial responses to the early requests often contained lengthy explanations of the issues in a balanced and informative format."
The Met said that it had begun warning that requests could start to be considered "vexatious" towards the end of 2014. It said: "This has not prevented us from continuing to receive the requests, often duplicated word for word, or simply asking for the same information in a slightly different manner.
"In 2015 alone the MPS has received 16 requests relating to Interception of Communication data. Of these, all but two relate to journalists, journalistic establishments or records relating to journalists. Many of these requests are identically worded or substantially similar."
It said: "The initial requests came on the back of concerns in the world of media, post Leveson, with regard there being potential police misuse of RIPA. Whether these concerns affected the decision making under the Act and what they meant in terms of disclosure are covered later under the 'public interest and value of requests' section. However, it is relevant here as the issue caused parliament to become involved and that led to select committee recommendations:
"https://www.publications.parliament.uk/pa/cm201415/cmselect/cmhaff/711/71103.htm
"The recommendations were that all the data be provided to IOCCO, in order that the matter could be properly reviewed. The work involved in that, although a separate burden on the relevant police business areas, nevertheless had a direct correlation to the effect on Police Forces in terms of processing requests under the Act as their resources became further restricted with the IOCCO work obviously taking priority.
"Overall, we are therefore surprised that applicants, particularly journalists, did not appreciate that firstly repeated requests on the subject would not be likely to invoke a different response and that each one was complex in terms of the processing and the burden on forces. The burden of persistent applications has been clearly articulated and should be obvious to a reasonable person."
Under the headline "Public Interest and the Value of Requests", the Met said that there is no "public interest test" under section 14(1) rejections.
But it said: "However, the examination of whether there is any real value in a request is pertinent, and uniquely in this case, we feel that does relate to the public interest.
"The use of RIPA is a contentious area; it is for that reason that the usage of the legislation is very carefully monitored and subject to independent scrutiny. Although a critical law enforcement tool it is contrary to our expected levels of privacy and 'state' monitoring. It has to therefore be carefully managed.
"It is not unreasonable to therefore expect focus on the subject, when there is a belief that the rules have in some way been breached. So serious are the issues that it led here to parliamentary intervention as outlined above.
"The importance of the public being made aware of the issues, so that proper informed debate could take place was always factored into early decision making when responding to the subject of journalists and the police use of RIPA. It was, and still is, a powerful public interest factor which was not easily overcome."
The response added: "However, the fact remains that journalists, as a collective group, can be caught up in RIPA activity for a myriad of reasons. This does not mean they themselves were necessarily under surveillance, but they could be victims of crime, whose data is captured through police investigation, potential witnesses or innocent parties, who have been contacted by others under investigation, so captured within third party communications data, or they could be criminals themselves, who are being investigated and occupation is irrelevant. The same could be said of any other identifiable group such as teachers, taxi drivers and of course police officers.
"There will always need to be in such circumstances a strong desire to protect police activity so that investigations are not disrupted, nor is anything placed in the public domain which renders police tactics less effective. The harm this would cause should not be underestimated. RIPA legislation also includes the deployment and usage of CHIS, and we have solemn vows to protect them and their activities. The risk in some of these cases could result in extreme harm befalling individuals and the police level of trust severely eroded. This is not to say that such assets have ever been involved in investigations involving journalists, but any disclosure under the Act simply on the subject of RIPA has wide ranging repercussions.
"As serious as these issues are, they have to be balanced against the public right to know, and as clearly articulated non disclosure was not a decision taken lightly, in the relevant cases."
The Met said that the "public interest had now changed", also, with the publication of the IOCCO report.
It said: "The report clearly states that the police have not been found substantially wanting in terms of the illegal use of the legislation as being claimed by several journalists. It states at section 8.3 'Police forces are not randomly trawling communications data relating to journalists in order to identify their sources'.
"There have been localised individual disclosure of cases, where things did not go as well as we would have hoped, and those disclosures, coupled with IOCCO's findings, have severely reduced the strength of that public interest in disclosure.
"It is primarily this, coupled with unreasonable persistence on the subject that must lead us to now consider there to be little value in the continued application of requests under the Act on the subject.
"The sensitivities on disclosure have not changed, whereas the need to inform the public has been catered for through other mediums. The Act was never designed to enable applicants to continue a campaign or determined pursuit of information when there are concerns over public authority activities, if these activities have been adjudged to be correct and appropriate."
The summary of the response said:
Requests on the subject of journalists and the police use of RIPA clearly meet the bar set in the definitive caselaw on protecting public authorities' resources from unreasonable requests, which was the Upper Tribunal in the case of Information Commissioner vs Devon County Council & Dransfield [2012] UKUT 440 (AAC), (28 January 2013).
Several key indicators were outlined in this case and we feel that evidence exists in these requests which enables us to conclude they are vexatious, under the terms of Section 14(1) of the Act. Primarily, the burden on the authority, unreasonable persistence, unfounded accusations (albeit we accept there are no accusations within the requests per se), frequent or overlapping requests and 'fishing' for information.
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