Tag Archives: journalism

THIS is the purpose of subject access requests

In a recent blogpost the rather excellent Bilal Ghafoor (who goes by the handle of “FOIKid”, although I note he’s now extended this to “FOI (and DP) Kid”, evidently having rather belatedly discovered the joys of data protection) asked “What is the purpose of subject access requests?“. He drew attention to the potential discord between approaches by the Information Commissioner and by the courts (in cases such as Durant  v Financial Services Authority [2003] EWCA Civ 1746) to such requests (made under section 7 of the Data Protection Act 1998 (DPA)).

In a comment on that post I argued that the Court of Appeal in Durant was perhaps not as out-of-step with, at least, the EC data protection Directive 95/46/EC as is sometimes thought

it’s important to note that the Court of Appeal were keen to stress the fact that the Act gives effect to the Directive, and that the Directive and its recitals have a “primary objective” to “protect individuals’ fundamental rights, notably the right to privacy and accuracy of their personal data held by others…

This particular primary objective is illustrated quite starkly by the news from the Press Gazette that comedian/journalist Mark Thomas discovered, through submitting a subject access request, that his name is on a “domestic extremist database”:

police held a file of seven pages containing more than 60 individual items of intelligence…”a bizarre list of events monitored by the police, lectures given, panels attended, even petitions I have supported…the police have monitored public interest investigations in my case since 1999″

Thomas says he is taking legal action to have his name removed. This will be an interesting case if it reaches court, joining a line of cases where people try to effect removal of records from police systems.

What is also interesting though is that Thomas, and the National Union of Journalists (NUJ), are encouraging journalists to submit subject access requests to the police. As Thomas says

I know of other NUJ members on the database….Which is why I am asking NUJ members to take action. If your work brings you into contact with the police whether covering riots or climate camp, from Plebgate to the NSA, then the police could have you on their database

and the NUJ general secretary Michelle Stanistreet adds

we want as many other members as possible to find out what information the Met is holding

In answer to Bilal’s question, then, I think that this – the investigation of how an arm of the UK state monitors and records the activities of the free press – is a vitally important example of what the purpose is of subject access requests.

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Leveson, LJ – defender of the press

Lord Justice Leveson, new President of the Queen’s Bench Division, is not the most popular judge amongst journalists and press barons.

So, in the week before the Privy Council meets to decide which system of press regulation will prevail, his detractors might take a moment to read a recent judgment of his in the Court of Appeal (Jolleys, R. v [2013] EWCA Crim 1135).

The appeal, by the Press Association, represented by the formidable Mike Dodd, was from a decision of a Recorder in Swindon Crown Court, purporting to have been made under section 39 of the Children and Young Persons Act 1933 preventing media reporting of information relating to the youngest (15-year-old) child of the defendant in the case (despite the fact that some of the information had been in the public domain prior to the making of the order). It was said that the court specifically prevented a reporter present from making representations prior to its making:

the order was put into place until it would be “properly argued” by counsel and “by somebody from the press if need be” [para 4]

This was, as Leveson LJ identified, in breach of rule 16 of the Criminal Procedure Rules, which provides that the court must not impose a rerporting restriction “unless each party and any other person affected…is present; or has had an opportunity (i) to attend, or (ii) to make representations”:

It cannot be suggested that the press were not affected by the order; indeed, it was specifically to restrict what could be reported that the order was made. This failure to allow representations at that stage represented a serious inroad into the respect owed to the press concerned to report criminal proceedings. [para 6]

Section 39 of the Children and Young Persons Act 1933 provides that

In relation to any proceedings in any court the court may direct that –

a. no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either, as being the person by or against, or in respect of whom proceedings are taken, or as being a witness therein;

b. no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;

except in so far (if at all) as may be permitted by the court.

And the Press Association successfully argued that “concerned in the proceedings” in section 39(a) could not be extended to a child who was merely the son of a defendant, but otherwise unconnected:

In relation to criminal proceedings, this can only include a child or young person who is the victim of an alleged offence, or the defendant or a witness; in civil proceedings, it could also include a child or young person on behalf of whom an action was being brought, for example, in relation to a road traffic accident or medical negligence. [para 12]

and this was supported by the unanimous view of the House of Lords in Re S (A Child) (Identification: Restrictions on Publication) [2005] AC 593  and the Court of Appeal in Re Trinity Mirror and others (A and another intervening) [2008] EWCA Crim 50 in which latter case the court had also rejected the proposition that a court’s inherent jurisdiction justified the making of an order to similar effect on Article 8 grounds

We must however add that we respectfully disagree with the judge’s further conclusion that the proper balance between the rights of these children under Article 8 and the freedom of the media and public under article 10 should be resolved in favour of the interests of the children. In our judgment, it is impossible to over emphasise the importance to be attached to the ability of the media to report criminal trials…If the court were to uphold this ruling so as to protect the rights of the defendant’s children under article 8, it would be countenancing a substantial erosion of the principle of open justice to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them [paras 32 and 33 of Re Trinity Mirror and others]

Leveson LJ identified other problems with the Recorder’s approach

he [also] approached the issue from the wrong direction. It was for anyone seeking to derogate from open justice to justify that derogation by clear and cogent evidence…The order was made when defence counsel asserted the likelihood of the defendant’s son suffering “the most extraordinary stigma through no fault of his own” which caused the Recorder to ask the reporter what the need for identifying the son was, rather than whether it was necessary to restrict his identification. [para 16]

and the point was made that a section 39 order, although generally obeyed in spirit as well as letter by the press, may not be the most appropriate form of order, applying as it does only to reports in newspapers, and in sound and television broadcasts: social media are not caught by it (“any further developments in this area of the law must be for Parliament”). This purported order had been “loosely” made, and Leveson LJ stressed that

Where such orders are made, they should be restricted to the language of the legislation

Mike Dodd had stated that the problems identified by this case were not uncommon, and the appeal was brought to

highlight what he contends is a continuing problem for journalists and the media, namely the willingness of courts to make unnecessary orders or to assume powers that they do not have. He submits that the courts all too often seem unaware of the guidance that is available and leave it to individual reporters (who will not be as versed in the law as the court, with the assistance of counsel, should be) to attempt to challenge the approach.

This concern was recognised

The requirements of open justice demand that judges are fully mindful of the underlying principles which this judgment has sought to elucidate

and Leveson LJ calls for – in those cases where “there is the slightest doubt, or any novel approach is suggested” regarding the appropriateness of a section 39 order being made – notice to be given in good time but also (without prejudice to the right of the press to advance its own arguments) for counsel “to research and develop the arguments to assist the court in a balanced way”.

Who said Leveson was an enemy of the press?

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ICO – no Code of Practice for data protection and the press

On the 12th of August the Information Commissioner’s Office (ICO) announced that, following a period of consultation, it would not – contrary to previously-stated intentions – be issuing a Code of Practice on Data Protection and the Press. The proposed Code had been in response to Lord Justice Leveson’s recommendations that the ICO produce

comprehensive good practice guidelines and advice on appropriate principles and standards to be observed by the press in the processing of personal data

As the ICO’s Steve Wood says in the blogpost

Leveson did not stipulate a code but we proposed it as a possible vehicle for the guidance

Indeed they did, stating at the time that it was not

the ICO’s intention to purport to set ethical standards for journalists, or to interfere with the standards which already apply under relevant industry guidance, such as the Editors’ Code of Practice, the Ofcom Broadcasting Code, and the BBC Producers’ Guidelines. Nevertheless, the existing industry guidance does not consider the requirements of data protection law in any detail, and the ICO’s code will complement existing industry standards by providing additional coverage of this issue

However, the latest announcement – that the ICO is “looking to produce a guidance document” rather than carrying through with the issuing of a Code of Practice – is accompanied by the publishing of a summary of consultation responses to the draft Code of Practice. In fairness to the ICO, those who responded appeared not to want a Code, and, as any public authority will be aware, a consultation in name only (e.g. one with a predetermined outcome) is unlikely to be a lawful one. We are not told specifically who these responses were from, but that they were from “several media companies, individuals, regulators and representative bodies” (although there were only 16 responses overall, a figure which perhaps shames us all, or, alternatively, supports a view that not that many people were particularly aware of or bothered about the consultation). Seven responses specifically rejected the idea of a Code of Practice, with some concerns being

a code of practice implies a new set of rules or regulations;
risk of the ICO becoming a ‘mainstream de facto regulator of the press’;
risk of a proliferation of codes; and
risk of potential confusion with existing codes such as the Editors’ Code.

After pausing to note that the now-proposed ICO guidance will apparently be issued in draft (for further consultation) before the end of the year, which is a long, long way from meeting Leveson’s recommendation that any guidance be implemented within six months of his report,  it might be helpful to look at just why some respondents might have been unhappy with a Code of Practice, as opposed to “mere” guidance.

As is well-known, there is a very broad exemption, at section 32, from most of the obligations of the Data Protection Act 1998 (DPA) where:

(a)the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,
(b)the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and
(c)the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes [emphasis added]

This, broadly, means that, as long as personal data is processed with a view to journalistic publication (note: not that it has to be published) it is exempt from effectively all of the DPA (although not the 7th “security” principle) as long as the press body “reasonably believes” publication would be in the public interest. This has generally been taken to mean that it will be extremely difficult for a data subject to enforce her rights against, or for the ICO to regulate the activities of, the press. And, indeed, instances of successful DPA claims, or successful enforcement, against the press, are rare (privacy cases against the press, where they have included DPA claims, have tended to see the latter sidelined or dropped in favour of meatier claims in tort – see e.g. Douglas v Hello [2005] EWCA Civ 595 (where the DPA claim did succeed in the first instance, but only resulted in nominal damages) and Campbell v MGN [2002] EWCA Civ1373 (where, by contrast, the section 32 defence succeeded)). As Leveson LJ says

the effect of the development of the case law has been to push personal privacy law in media cases out of the data protection regime and into the more open seas of the Human Rights Act [page 1070 of Leveson Report]

 As everyone knows, the press kicked back strongly against parliament’s proposal of a Royal Charter for the press (that proposed Charter itself being the result of a rowing back by the political parties from Leveson’s proposal for some form of direct statutory underpinning of any regulatory scheme (“Guaranteed independence, long-term stability, and genuine benefits for the industry, cannot be realised without legislation”)). Both proposed Charters (the parliamentary-backed one and the Pressbof-backed one ) are to be considered by the Privy Council.

What has perhaps not been so widely-known, or widely-understood was that an ICO Code of Practice, if it had been designated by the Secretary of State (by means of an Order pursuant section 32(3)(b) of the DPA), would itself have constituted a form of statutory underpinning. This is because a Code designated in this way could have been taken into account by a court, or by the ICO, when determining whether personal data had been processed (for the special purposes) by the data controller in the reasonable belief that it had been in the public interest. The now-proposed “mere” guidance will not have the same status.

This might seem a minor point, and perhaps it is (bear in mind that there are already other Codes of Practice designated pursuant to section 32(3)(b), including the Press Complaints Commission Code of Practice) but, although we don’t know specifically who responded to the ICO’s consultation, it is safe to say that those who did included in their number organisations strongly opposed to (and alive to the threat of) any form of what they perceive to be statutory regulation of the press.

In this post I draw heavily on previous posts by Chris Pounder, on his Hawktalk blog, and if, as he suggested earlier this year, the then-proposed ICO Code raised the prospect of enhanced protection for ordinary data subjects, it is perhaps the case that the dropping of the proposal means no such enhanced protection.

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The Fog of War (on Drugs)

A recent Freedom of Information (FOI) request to Nottinghamshire police by a local newspaper resulted in the press headline

Police winning war on production of cannabis in county

The request was apparently for “the number of cannabis farms discovered” in the county, and the number of arrests in relation to production of the drug. Over a five year period the data showed that both were down, by 19% and 25% respectively. The paper reported that

Police say the figures prove a crackdown on cannabis production is having an impact

Do the figures prove that? I don’t think so. In fact, I think you could just as reasonably extrapolate that, for instance, police are actually “losing the war on drugs” and have chosen to expend fewer resources in discovering the farms, or, that producers have got a lot better at hiding them. The figures don’t “prove” these assertions either, but each seems to me to be as valid a conclusion as the one reported.

I read the article in light of an exchange on twitter about whether public authorities, when responding to FOI requests, were entitled to include a statement to be used in the event that the requester wished to publish an article.

Provided that the response to the FOI request itself is compliant with legal requirements I see no problem with this approach, which is really only an extension of the practice of providing explanatory comment to FOI disclosures.

What I would be critical of, though, is an unquestioning approach by journalists to such accompanying statements.

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The Right to Unknown Information

It is important to note that there is no requirement in the FOIA that those intending to make requests for information have any prior knowledge of the information they are requesting.

These words of the Information Commissioner (IC) in, Decision Notice FS50465008, are an important statement about the role of the Freedom of Information Act 2000 (FOIA) in investigative journalism and activism. They establish that, at least in the IC’s view, FOIA requests may be made on a speculative basis, without a knowledge of the specific contents of documents.

To many users and practitioners they are probably also an obvious statement about the right to information conferred by FOIA. If someone is asking for information from a public authority, it is self-evident that, at least in the large majority of cases, they do not know what the information specifically consists of – otherwise, why request it? As the IC goes on to say

The idea of a requirement of prior knowledge that the relevant information exists is itself contrary to the very purpose of the legislation, let alone prior knowledge as to what it comprises

The request in question, made – as those who followed the “Govegateimbroglio might have guessed – by the impressively dogged journalist Christopher Cook (who has given me permission to identify him as the requester), was to the Cabinet Office for

the last email received by the [Prime Minister] personally on government business via a private non-GSI account. I also want the last government email sent by the PM via such an account

It was made in the context of suspicions that attempts might have been made to circumvent FOIA by conducting government business using private email accounts. For obvious reasons Chris was unlikely to be able to identify the specific type of information he sought, and the Cabinet Office knew this, telling the IC that

he has no idea of the nature of the information that may be contained in such emails, if indeed such emails even exist…For a request for a document to be valid, it needs to describe (if it would not otherwise be apparent) the nature of the information recorded in the document. The Cabinet Office does not accept that asking a public authority to undertake a search for emails without any subject matter, or reference to any topic or policy, sent using a particular type of account can satisfy the requirement on the application to ‘describe the information requested’

However, the IC rejected this, splendidly demolishing the Cabinet Office’s position with an argument by analogy

a request for the minutes of the last Cabinet meeting would clearly describe the information requested, even though it does not describe the content by reference to the matters discussed

I think this decision is particularly important because it accepts that, sometimes, a person contemplating requesting information from a public authority might not have a fully-formed view of what it is she wants, or expects to get. Authorities sometime baulk at requests which they see as “fishing expeditions”, but the practice of investigative journalism (in de Burgh‘s classic formulation “…to discover the truth and to identify lapses from it in whatever media may be available…”) will often involve precisely that, and the IC recognises this

Whilst public authorities might find such requests irritating, the FOIA does not legislate against so-called ‘fishing expeditions’

 The Cabinet Office must now treat Chris’s request as properly-made under FOIA. That does not mean that they will necessarily disclose emails from the PM’s private email account (in fact I’d be amazed if they did), but no one ever suggested the trade of investigative journalism was easy.

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Filed under Cabinet Office, enforcement, Freedom of Information, Information Commissioner, transparency, Uncategorized

Shaft? You’re damn right

There was a heartening story in the Leicester Mercury a few days ago. Journalist  David MacLean praised Lynn Wyeth, Leicester City Council’s Head of Information Governance for her promotion of transparency (and her assistance in giving him “countless stories over the past two years”). The article illustrates how, when it comes to the Freedom of Information Act 2000 (FOIA), a relationship of mutual respect and openness between a public authority and the media can help both sides.

Contrast this with an item on Newbury Today’s site this morning. This is a follow-up to a recent series of FOIA requests made to police forces around the country. It appears that the Press Association asked for information relating to thefts of police property. I don’t know exactly what the request said (I don’t have a Press Association log-in, and the main release is unclear) and it has been variously reported as being specifically about thefts from police stations or simply thefts in general from the police (I rather suspect it was the latter, but if anyone can clarify this, I’d be most appreciative).

The Daily Mail highlighted that Thames Valley Police (TVP), with 90 incidents, “tops the list of crime-hit forces”. No public authority likes to be “top” of any of these type of lists, and the Newbury Today article shows TVP hitting back

…force spokesman Craig Evry…explained that the majority of the thefts took place from “trap cars” and added: “Thames Valley Police is one of several forces to use ‘trap houses’ and ‘trap vehicles.’ These are used in areas which police believe are being targeted by burglars or thieves.“When criminals break in, they could be recorded by cameras or any property taken may be remote tagged or marked with ultraviolet inks allowing police to quickly track it down. It’s a useful criminal reduction and evidence tool and criminals should realise that the home or vehicle they’re breaking into might be covered by hidden cameras. Hopefully using this technology might make them think twice about committing a crime.”

One initially wonders, why didn’t they say that in the first place? Well, they say they did:

The FoI response included the caveat: “Please note that of the above thefts recorded, all but six involved ‘trap vehicles’ deployed specifically to be targeted by offenders.”
Mr Evry said: “They simply misinterpreted the data.”

Most, if not all, FOI officers have been here. A request is received for “All the information on X”. Now, you hold this information, but, taken in isolation, it might be misinterpreted, so you add an explanation, or a disclaimer. However, for whatever reason, the disclaimer is lost in the bustle of preparing a story for print, and suddenly your nuanced explanation of the information is lost, and you are being lambasted in the press.

In fairness to the Press Association, it seems that the background details to their original story might have included TVP’s disclaimer. For instance, the Oxford Mail, writing three days before the Daily Mail, referred to it in their article. So maybe the fault is only with those media organisations who misinterpreted, or chose to misrepresent, the Press Association material. Nonetheless (and I can speak from bitter experience here) journalists may want to ask themselves whether the helpfulness of FOI officers might be inversely related to the likelihood of their getting shafted as a result of that helpfulness.

 

 

 

 

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