Why won’t you read my secret guidance?!

The Office of Surveillance Commissioners (OSC) is in charge of reviewing the exercise of powers and duties under the Regulation of Investigatory Powers Act 2000 (RIPA) and the equivalent Scottish Act. It does not regulate RIPA (that is the role of the judiciary) but conducts inspections, provides reports and issues guidance. That guidance is, effectively, secret.

I can understand why details of specific instances of lawful surveillance must not be disclosed publicly. I have never fully understood why guidance from the person appointed to review the exercise and performance of powers and duties conferred or imposed by or under RIPA should not be disclosed publicly

The Office of Surveillance Commissioners’ remit is

keeping under review (except in relation to the interception of communications and the intelligence services) the exercise and performance of powers and duties conferred or imposed by or under Part II (covert surveillance) and Part III (encryption) of RIPA and its Scottish equivalent RIP(S)A

(interestingly that website contains a typo – this remit is contained in section 62 of RIPA, not section 63).

This is an important role (which is in addition to the OSC’s remit under the Police Act 1997 to review authorisations by law enforcement agencies “for operations involving entry on, or interference with, property or wireless telegraphy, without the consent of the owner”). RIPA is muchmaligned, although, ironically enough, in key areas it merely provides a regulatory framework for intrusions  into private lives which were formerly permissible at common law (i.e. the sort of surveillance RIPA regulates perhaps always used to happen, it’s just that it was not prima facie unlawful).

However, the Chief Surveillance Commissioner never seems happy with his lot. In his latest report he bewails the limits on his office’s funding

The Home Secretary is required…to provide me with the support necessary to fulfil my responsibilities. The support I receive continues to be, in some respects, inadequate. In particular, information technology for many years has failed to meet the demands of remote, secure and mobile working which is an integral part of the inspection process. Promises of improvement are not fulfilled and there appears little urgency to resolve recurring problems. Similarly, I have to rely on archaic facsimile machines which repeatedly malfunction. (¶3.13)

If true, this is pretty shoddy. I would suggest that if anyone needs to be sure about their information security it’s the Chief Surveillance Commissioner (and why is he still reliant on “facsimile machines”?).

He is also unhappy with some authorities he has inspected

My Inspectors are not lawyers and they address their reports to me. Their reports are subject to my endorsement which I will make clear in my covering letter to the chief officer of the authority inspected. It is therefore important that conversations with them during an inspection are not misquoted or shared with others without prior agreement…There have been a few occasions when correspondence from me to a single public authority has been promulgated by that authority to others as a general interpretation. Usually my guidance relates to specific facts and may not be applicable in circumstances which may appear to be, but which on analysis are not, similar.(¶3.3-3.4)

This reluctance to be open about things he and his inspectors say carries through – in spades – to the guidance he produces. In the most recent report he says

my Commissioners from time to time publish guidance in a single document for use by public authorities. I do not wish to apply a security marking to my guidance but, despite clear instructions, I am dismayed at thoughtless disclosure of a document which provides information which necessarily alludes to covert tactics. The Home Office has not yet provided me with a website capable of balancing the need for transparency to the public with controlled access to specific guidance by a limited audience.

and refers back to the previous year’s report which provided reasoning for not publishing it

my small office does not have the capacity to answer the inevitable influx of requests for clarification this would invite…law enforcement agencies in particular are concerned that tactics might unnecessarily be revealed…it is not a comprehensive document which covers every eventuality and it might be misconstrued or misused; and…it is not my remit to provide free legal advice, though I proffer guidance to public authorities which I have a responsibility to review, in order to raise standards and promote consistency (¶3.4)

although not before regretting it is not always readily available to those who need it

If I continue to find this document is not readily available to those who need it, or is not promoted by national associations, I may make it publicly available on my website

Which seems to me to be a case not of threatening to take your bat home with you, but going home and leaving your bat behind.

All this seems to reveal an attitude rather, shall we say, paternalistic and ante-Freedom of Information Act. Needless to say, someone tried, a couple of years ago, to use FOIA to get a copy (asking the OSC, which is not a public authority for the purposes of FOIA, nonetheless to use the Act’s spirit as a model for discretionary disclosure). Although the OSC refused, the requestor, on the admirable whatdotheyknow.com site*, later found that a local authority had helpfully uploaded a copy as part of a committee report. Perhaps this was one of the naughty authorities lambasted by the OSC. If so, he hasn’t done much about it, because the report is still there, happily providing guidance and – I hope – not actually causing him any trouble whatsoever.

 

*I’ve not linked to it, out of deference to the OSC – I can tug my forelock with the best of ’em – but a bit of googling will get you there in no time.

 

 

 

 

 

1 Comment

Filed under Freedom of Information, RIPA, surveillance, surveillance commissioner

One response to “Why won’t you read my secret guidance?!

  1. William

    OSC do a vital job I’d have thought but are clearly not happy people. They might note that the new GDS was kitted out with state of the art Apple laptops, mobile, broadband etc for 18% the cost per head of bog standard Cabinet Office kit. So there are smarter and better ways to get kitted out. But yeah: open up the guidance!

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