I am not vexatious. The Metropolitan Police has conceded it was wrong to slap a vexatious label on my Freedom of Information request probing its use of the snooping law RIPA on journalists and their sources.
The change in position wasn’t one that followed deep reflection and consideration of all the issues, it was prompted by its ally – Thames Valley Police – being told, not once but twice, that it had used the vexatious term inappropriately on similar requests from journalists.
A meekly worded email flashed up yesterday, which concluded: “Therefore, in respect of your specific request for information relating to the Interception Commissioner the MPS, having considered its position, is no longer seeking to rely on Section 14(1) FOIA and will now consider the request anew.”
My original request was made way back on the 4th February since then the force decided the request was vexatious, upheld an internal review, and a complaint, which is still open, was filed with the regulator (the ICO) on April 14. When I last checked the Met hadn’t provided the ICO with its detailed reasoning as to why the request was vexatious. Its position has quickly changed following the decisions above. (For the nerds out there: I will still be insisting that a decision notice is issued).
The Met had tried to claim that my request, asking for the information it had sent to the Interception Commissioner’s review of RIPA used against journalists and their sources, would cause a “disproportionate burden” to reply to.
Its basic position was threefold:
1: Too many people were asking questions about the extent of police snooping against journalists.
2: Because there had been an independent review of the practice this is where it’s responsibility to be accountable stopped. The Commissioner’s review had asked questions and made recommendations, therefore, the Met said, there was little public interest in finding out more.
3: They were told to cry vexatious by the National Police Chiefs Council (the re-incarnated Association of Chief Police Officers).
To deal with each in turn:
- The BBC, Guido Fawkes, the two local newspapers above, the Sun, and more have all had requests on RIPA called vexatious by the police. It’s likely that at least some of these requests were prompted by the failure of the police to respond to (and then unsurprisingly calling vexatious) the requests of Press Gazette who have led from the front of this issue. By not being open and accountable at the earliest opportunity police forces created more work for themselves by drawing attention to their secrecy: an FOI Streisand effect (aka the public interest), if you will. As an example, FOI requests to the BBC peaked following the Jimmy Savile scandal.
- The Interception Commissioner’s original review left unanswered questions. It identified 19 police forces that had used RIPA powers to spy on journalists or their sources but it failed to name them. This failing by the Commissioner was bound to provoke more requests for information; journalists working across the country wanted to know if it could have been them. The first step in finding this out is knowing which forces had been spying and accountability doesn’t stop because there has been an independent review. Following the review the law has been altered which requires police to seek judicial approval if they want to use RIPA to access information about journalists. The most recent report from the Interception Commissioner showed that despite the change in process two police forces failed to keep to these. They also weren’t named. This failure to keep to new procedures shows the importance of being able to continue asking questions despite an inquiry having taken place.
- When a police force receives a particularly complex FOI request, or one that has been sent to multiple forces at once it can send it to the NPCC’s Central Referral Unit (CRU). The CRU then provides a line to take when answering the FOI request, police forces can dissent from this but doing so is likely to be a rarity. After dealing with a few of the requests on RIPA an journalists’ sources the NPCC changed its advice to be: “All future requests relating to RIPA/Journalists will attract the Section 14 vexatious, unless cost is relevant.” This doesn’t take into account the individual request’s circumstances, which is dubious at best.
So, what next?
The ball’s very much in the Met’s court – as it has been all along. They’re now considering the request as if it has been sent today.
They’ll come back with a “substantive” response in 20 working days – so they theory of the law says – and will undoubtedly rely on another exemption. My guess is that they’ll at least be relying on National Security (Section 24). There’ll probably be more as well.
What I am not guessing is that the whole saga has been a waste of time, public expenditure and highlighted the, often, ineptitude of the FOI process. The real “disproportionate burden” has been caused by the inadequate handling of the FOI request.
The Met’s full email is below:
From: Nigel Shankster, Senior Information Manager
“With regard to your complaint to the Information Commissioner the Metropolitan Police Service (MPS) has reviewed its position on the use of section 14(1) following the publication of two decision notices, last week, by the Information Commissioner. Those decision notices were issued in respect of the use of S14(1) FOI, to requests for information provided to the Interception of Communications Commissioners Office and the use of Chapter 2 of part 1 of the Regulation of Investigatory Act, in relation to journalistic sources, respectively.
“Therefore, in respect of your specific request for information relating to the Interception Commissioner the MPS, having considered its position, is no longer seeking to rely on Section 14(1) FOIA and will now consider the request anew.
“As Section 14 absolves us of our obligations to firstly confirm or deny that information is held, before then considering disclosure, you will understand that there will need to be consultation with key stakeholders and careful consideration of the public interest issues before a decision by the MPS can be made. As such we would hope to provide a substantive response within 20 working days’.”
Image courtesy of David via Flickr / Creative Commons Licence