Dear Mr.

Burgess
Freedom of Information request for review reference: 2015030000779
I write in connection with your correspondence dated 9th March 2015 requesting
that the Metropolitan Police Service (MPS) review its response to your request for
information (ref: 2015020000439). Please find below a response to your complaint.
Original Request
Following the publication of the report: "IOCCO inquiry into the use of Regulation of
Investigatory Powers Act (RIPA) to identify journalistic sources" - by the Interception
Commissioner please may you provide me with all materials which were sent to the
Commissioner's office for the purpose of the report.
Request for Review
In your review please reconsider all the facts of the case that resulted in you coming
to the decision that the request falls under s.14 of the Act.
My main objection is the broad way in which you have decided the request is
vexatious. The background and context of other individual's requests has been used
to consider my request as being vexatious, not the individual circumstances that
relate to my request.
Little tangible evidence which, relates to the request that I made, was provided in
coming to this decision. The request was decided to be vexatious as the force has
received various requests on the subject, which shows the increased and ongoing
public interest in the issue. In a wider context the continuing requests on the subject
also indicate a public interest in the Met's responses to questioning on the subject of
RIPA.
Furthermore the information which was requested had already been provided to the
Interception Commissioner. I believe that it is unlikely that information which has
already been sent outside of the force would be a burden to consider disclosing.
As you will be aware I have already asked the ICO to consider this request for an
expedited S.50 complaint. However, it has been decided that the force should be
given an opportunity to respond via an internal review first.
REVIEW DECISION
The MPS has completed its review and has decided to uphold the original MPS
decision to deem the request a Vexatious Request by virtue of section 14(1)
Freedom of Information Act 2000 (FoIA).
Please note it is the request that is deemed vexatious and not the individual
who submitted it.
Further reference to the FOIA can be found by way of this
link http://www.legislation.gov.uk/ukpga/2000/36/contents

Reason for decision

The review takes note of your comment My main objection is the broad way in which
you have decided the request is vexatious. The background and context of other
individual's requests has been used to consider my request as being vexatious, not
the individual circumstances that relate to my request. Little tangible evidence which,
relates to the request that I made, was provided in coming to this decision it is
therefore important to point out that the Freedom of Information Act creates a
statutory right of access to information held by public authorities. Section 1(1) of the
FoIA provides that any person making a request for information to a public authority
is entitled:
(a)
To be informed in writing by the public authority whether it holds information
of the description specified in the request, and
(b)

If that is the case, to have that information communicated to him.

This right of access to information is not without exception and is subject to a

number of exemptions and other provisions under the Act, including section 14(1)
which provides:
Section 1(1) does not oblige a public authority to comply with a request for
information if the request is vexatious.
After a careful examination of your request the review has decided to uphold the
original decision to deem this request vexatious by virtue of Section 14(1) FoIA
governing vexatious requests. Please note it is therequest that is deemed
vexatious and not the individual who submitted it. There is no public interest
test.
Considerations for making the request vexatious
The Information Commissioners Office (ICO) has provided guidance on dealing with
vexatious requests and states The Freedom of Information Act was designed to give
individuals a greater right of access to official information with the intention of making
public bodies more transparent and accountable. Whilst most people exercise this
right responsibly, a few may misuse or abuse the Act by submitting requests which
are intended to be annoying or disruptive or which have a disproportionate impact on
a public authority. The ICO further recognises that dealing with unreasonable
requests can place a strain on resources and get in the way of delivering mainstream
services or answering legitimate requests. Furthermore, these requests can also
damage the reputation of the legislation itself. Further reference to the ICO guidance
can be found by way of this link:https://ico.org.uk/media/fororganisations/documents/1198/dealing-with-vexatious-requests.pdf
ICO guidance reminds public authorities that section 14(1) is designed to protect
public authorities by allowing them to refuse any requests which have the potential to
cause a disproportionate or unjustified level of disruption, irritation or distress. The
ICO also states the emphasis on protecting public authorities resources from
unreasonable requests was acknowledged by the Upper Tribunal when it defined the
purpose of section 14 as section 14is concerned with the nature of the request

and has the effect of disapplying the citizens right under section 1(1) the purpose
of section 14must be to protect the resources (in the broadest sense of that word)
of the public authority from being squandered on disproportionate use of FOIA
Assessing purpose and value
Although in general the FoIA is considered applicant blind, there are certain
circumstances when the identity of the applicant needs to be considered. One of
these circumstances is when determining whether a request is vexatious. The ICO
advises the Act is generally considered to be applicant blind, and public authorities
cannot insist on knowing why an applicant wants information before dealing with a
request. However, this doesnt mean that an authority cant take into account the
wider context in which the request is made and any evidence the applicant is willing
to volunteer about the purpose behind their request. The authority should therefore
consider any comments the applicant might have made about the purpose behind
their request, and any wider value or public interest in making the requested
information publicly available.
In this respect then the review returns to your original request which seeks Following
the publication of the report: "IOCCO inquiry into the use of Regulation of
Investigatory Powers Act (RIPA) to identify journalistic sources" - by the Interception
Commissioner please may you provide me with all materials which were sent to the
Commissioner's office for the purpose of the report. Therefore, in order to assess
purpose and value, the review must now consider the history and context of the
request.
Considering whether the purpose and value justifies the impact on the public
authority.
The ICO advises that serious purpose and value will often be the strongest argument
in favour of the requester when a public authority is deliberating whether to refuse a
request under section 14(1) and statesThe key question to consider is whether the
purpose and value of the request provides sufficient grounds to justify the distress,
disruption or irritation that would be incurred by complying with that request. This
should be judged as objectively as possible.
The ICO further clarifies this to mean In other words, would a reasonable person
think that the purpose and value are enough to justify the impact on the authority. In
this regard the review takes note of the original response in this case which the
review finds relevant to this request Also relevant is the fact that the public portal for
making requests, whatdotheyknow.com, reveals 846 requests to various public
authorities on the subject of RIPA. 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.
It was also towards the end of 2014 that we began including warnings re continued
applications for the same information. 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.
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:
http://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.
Therefore from the history of similar requests as indicated above, including a public
website we can deduce from this the purpose of your requests, which we imagine to
be your attempts to open a variety of issues which are already subject to public
scrutiny where this has been deemed necessary. The review now has to consider
whether the purpose and value justifies the impact on the public authority and
whether this serves the wider public interest. The review has regard for the following
comments in the original response, which is clearly relevant to this request for similar
information The application of Section 14 is not subject to a public interest test.
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.
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.
Even though that was relevant in early decision making, the public interest has now
changed. IOCCO have now published their report:
http://www.ioccouk.info/docs/IOCCO%20Communications%20Data%20Journalist%20Inquiry%20Report%204Feb15.p
df

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.
It is therefore against this background, that the review finds the factors mentioned
above to be relevant in this case.
Conclusion
The purpose of the Freedom of Information Act is to grant access to information that
enables the public to scrutinise the decisions and actions taken by public authorities
and to increase the accountability and transparency of those authorities.
Whilst it could be argued that any disclosure of any information by a public authority
demonstrates transparency, and a case could invariably be made that public scrutiny
of disclosed information directly equates to the accountability of public authorities, it
is difficult to relate these arguments to this request which we deduce is an attempt to
open issues which have already been subject to public inquiry and scrutiny, as
mentioned on the Interception of Communications Commissioners Office (IOCCO)
the IOCCO is an independent oversight body independent of Government and
Parliament led by the Interception of Communications Commissioner.IOCCOs
function is to keep under review the interception of communications and the
acquisition and disclosure of communications data under RIPAIOCCO has full and
unrestricted access to all of the information required from public authorities to carry
out fully the Commissioners statutory oversight function. IOCCO conducts thorough
and robust inspections of public authorities which have powers to intercept
communications and acquire communications data. These inspections ensure they
are acting within the law.
It is for this reason that the review considers the purpose and value does not justify
the impact on the public authority in this instance and is satisfied that this request is
deemed vexatious.
If you remain dissatisfied with the MPS decision you may make application to the
Information Commissioner (ico.org.uk) for a decision on whether the request for
information has been dealt with in accordance with the requirements of the Act.
Yours sincerely
Mike Lyng
FoIA Policy, Research and Review.
LEGAL ANNEX
Section 17(5)&(6) FoIA provides:
(5)
A public authority which, in relation to any request for information, is relying
on a claim that section 12 or 14 applies must, within the time for complying with
section 1(1), give the applicant a notice stating that fact.

(6)

Subsection (5) does not apply where

(a) the public authority is relying on a claim that section 14 applies,

(b) the authority has given the applicant a notice, in relation to a previous request for
information, stating that it is relying on such a claim, and
(c) it would in all the circumstances be unreasonable to expect the authority to serve
a further notice under subsection (5) in relation to the current request.
Section 14(1) FoIA provides:
(1)
Section 1(1) does not oblige a public authority to comply with a request for
information if the request is vexatious.

COMPLAINT RIGHTS

The Information Commissioner

After lodging a complaint with the MPS if you are still dissatisfied with the decision you may make
application to the Information Commissioner for a decision on whether the request for information has
been dealt with in accordance with the requirements of the Act.
For information on how to make application to the Information Commissioner please visit their website
atwww.informationcommissioner.gov.uk. Alternatively, phone or write to:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Phone: 01625 545 700
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