Info chief sides with Oxford Mail against police: Not ‘vexatious’ to ask about RIPA spying

Oxford Mail is first publication to be told FoI questions about RIPA were not "vexatious"
Information Commissioner orders Thames Valley Police to release information or rely on other FoI exemption
Information Commissioner says level of media interest in finding information is "understandable"
Office is critical of police forces' reliance on national ACPO guidance

The Information Commissioner has ruled that the Oxford Mail was not “vexatious” to ask Thames Valley Police, under the Freedom of Information Act, whether it has secretly accessed journalists' phone records.

The Mail asked the force whether it was among the 19 forces to have used the Regulation of Investigatory Powers Act to obtain journalistic records and find sources in a three-year period to the end of 2014. This figure – 19 – was revealed by an Interception of Communications Commissioner’s Office (IOCCO) report in February. It did not name the 19 forces.

Police forces are no longer able to access journalistic phone records in this way without prior judicial approval following the success of Press Gazette’s Save Our Sources campaign.

Press Gazette was labelled “vexatious” by a number of police forces this year over RIPA FoI requests. Several journalists, as well as the website Guido Fawkes, have been accused of “working collectively” with Press Gazette to obtain this information.

At the end of May, after months of preparation and with the backing of pro-bono lawyers, Press Gazette submitted an appeal to the Information Commissioner’s Office over several police forces’ refusal to answer questions about RIPA. As well as challenging the “vexatious” rejections, Press Gazette’s appeal went further to address rejections on the grounds of national security. This has not yet been responded to.

The Oxford Mail’s challenge to the Information Commissioner's Office (ICO) was made in April and centred on a “vexatious” section 14(1) rejection.

The ICO has now ruled that this was not an acceptable excuse for not answering the FoI. Thames Valley Police now has 35 days to either provide the information to the Mail, or to reject on different grounds.

On 6 February, after the release of the IOCCO report on the extent of police spying on journalists via RIPA, the Mail asked Thames Valley Police: Was it one of the 19 forces to have used RIPA in this way over the three-year period; if so, on how many occasions; and, if so, whether it had done so in a specific case. There were also several other more specific questions.

Thames Valley Police rejected the request under section 14(1) and upheld this decision following a judicial review request.

The ICO said yesterday: “The Commissioner’s decision is that the request is not vexatious and he requires TVP to take the following steps to ensure compliance with the legislation: disclose the requested information or issue a fresh refusal notice in compliance with section 17 of FOIA.

“TVP must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.”

Mail editor Simon O’Neill said: “RIPA is there for a very good reason. But that reason is not to snoop willy-nilly on journalists going about their lawful business with no oversight or accountability. It is just a shame that forces, driven no doubt by the Association of Chief Police Officers, have been so incredibly unhelpful and secretive about this. It’s worth remembering that if they can do it to a journalist, they can do it to anyone.”

In the response, shared with Press Gazette by assistant editor Jason Collie, who was behind the requests, the Information Commissioner acknowledged “that the media have pursued the issues related to police use of RIPA persistently but persistence is not necessarily an indicator of a vexatious request”.

He said: “The level of media interest in the issue is understandable given the interaction with fundamental issues of freedom of expression, including Human Rights under Article 10 of the European Convention. “

It added: “It is not necessary or appropriate for the Commissioner to comment in detail about key findings of the IOCCO report. The Commissioner recognises that the report goes some way in meeting the public interest. The report provided important context and reassurance about police use of RIPA but also made some important recommendations about safeguards.

“The Commissioner recognises that there was still a public interest in revealing information about the use of RIPA in relation to journalists, following the publication of the IOCCO report.”

The ICO was also critical of the force's reliance on guidance from the Association of Chief Police Officers (now the National Police Chiefs’ Council). The ruling said: “TVP has relied on advice which, the Commissioner understands, has been made available to the police service as a whole. No real consideration seems to have been made of this request in isolation.

“The Commissioner has seen no evidence, nor has it been suggested in the ACPO advice, that this complainant is part of any sort of organised campaign.

“Whilst the complainant may have been aware of other requests by media organisations the Commissioner considers that it would be inappropriate to consider the request in question as a burden in the context of a wider 'media campaign'.

It added: “The Commissioner would also like to use this case to remind public authorities of the importance of considering requests on the basis of their own analysis. From time to time central co-ordination bodies, such as ACPO, will provide advice on handling certain types of request. This advice can have value in enabling applicants to receive consistent responses, risks of inadvertent disclosures are avoided, and expertise on handling certain types of requests can be shared.

"However centrally provided advice is just that – advice – and public authorities should take responsibility for considering requests in their own circumstances. In this case the advice provided by ACPO was broad in its direction and required further consideration by forces in the circumstances of the requests received. The Commissioner does not suggest that it was inappropriate for some form of central advice to be issued in relation to these requests but he does question the value of general advice given – that all requests on this subject matter are classed as vexatious.

“The Commissioner is also sending a copy of this decision notice to the NPCC. “

Mail assistant editor Collie said: “Hopefully this decision knocks away the last shaky defences that the police were trying to hold up against quite legitimate enquiries about the extent of their use, or as some would argue misuse, of RIPA.

"Their position that it will aid terrorism, is vexatious and frankly that the public just don’t have a right to know what they’ve been up to is no longer tenable. And hopefully the ruling on our application will be replicated for others to the Information Commissioner’s Office, including Press Gazette’s own fine campaign on this.”

Read the full Oxford Mail report here.