THAMES Valley Police has been told by the Information Commissioner it was wrong to keep secret whether or not it had spied on journalists using anti-terrorism powers.
The Oxford Mail had asked Thames Valley if it was one of 19 forces which had used the Regulation of Investigatory Powers Act (RIPA) – originally intended to fight terrorism and organised crime – hundreds of times to find out who journalists spoke to.
Police forces had been using RIPA to search journalists' phone records with only the approval of senior officers. The Government has said, following an investigation by the Interception of Communications Commissioner's Office, that a judge should approve such applications.
Thames Valley refused to say, following an application under the Freedom of Information Act, if it had used RIPA to access information about journalists including phone records in the previous three years, claiming our request was "vexatious" and that it would be too much of a burden to to collate the information.
The Oxford Mail appealed this and yesterday the Information Commissioner – which oversees Freedom of Information requests – released his decision ruling Thames Valley was wrong and giving the force 35 days to either reveal if it had been spying on journalists or come up with new reasons to keep that secret.
It is the first time the Information Commissioner has issued such a ruling against a police force.
The ruling said: “[The Commissioner] accepts that detailed requests in relation to RIPA can be burdensome for the police service as a whole given the co-ordination that may be required in certain types of cases. However, he notes that the request does not require any such detail.
“It only seeks to ascertain whether TVP is one of the 19 forces referred to in the IOCCO Report and, if so, how many cases were involved and the type of newspaper/s that the authorisation/s specified.
“The majority of this information has already been gathered for the purposes of the IOCCO investigation [and] the Commissioner does not accept that there could be any real burden in providing a response, if indeed any data is held.
It added: "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."
Thames Valley Police spokeswoman Michelle Nichols said the force could not comment because Chief Constable Francis Habgood was in a meeting all day.
However, Society of Editors executive director Bob Satchwell said: “This is not just a matter of a row between the police and the media.
“Overzealous use of a law that was intended for out purposes can also be directed at the public. It is important, therefore, that the public is told just how much use of this legislation was made for purposes other than terrorism and serious crime.
"It's good that the Information Commissioner's Office has seen the common sense on this.
"Hopefully Thames Valley Police will take heed and share that good sense."
Oxford 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.
“We really have to guard against the steady creep of authoritarian powers and the state secrecy that goes with it. It makes an absolute mockery of any claims that we live in a truly open society when these powers are targeted against the very people they are meant to protect.”
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In its initial refusal and labelling the Oxford Mail as vexatious, Thames Valley Police had also tried to claim there had been a campaign by journalists to use the FoI Act to find out about the use of RIPA. The Information Commissioner ruled: “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.
“The Commissioner has seen no evidence, nor has it been suggested in the Association of Chief Police Officers 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”.
The Information Commissioner also said Thames Valley had been wrong in the way it had used the ACPO advice as a reason to turn down the Oxford Mail’s request.
The decision stated: “The Commissioner considers that this request has not been considered on an individual basis. Rather it has been categorised as a particular type of request and refused in a blanket fashion without due regard to its specific content.
“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.”
As a result, the ICO is also sending his decision to ACPO’s successor the National Police Chiefs’ Council – which is coincidentally now headed up by Sara Thornton, the Chief Constable of Thames Valley when it turned down this request.
This was the third request about RIPA to Thames Valley Police the force had turned down.
In the first, a document obtained by the Oxford Mail showed then-Assistant Chief Constable John Campbell endorsed the decision to reject the request on grounds that included “as having a likelihood of impacting upon the reputation of Thames Valley Police”.
And with the second, Jonathan Hands, from the Public Access team at Thames Valley Police, claimed revealing if RIPA had been used against journalists may impact on the fight against terrorism.
Thames Valley Police has made costly mistakes over misusing RIPA before the three-year period covered by the Oxford Mail’s request.
A court case collapsed when a judge ruled their bugging of a car to find out who a weekly reporter was speaking to was in violation of basic journalistic rights.
And in the early 2000s it seized the phone records of INS News Agency in its hunt to try to find the company's source for stories. Initially it tried to claim it had used RIPA and then other acts before backing down and having to pay the company thousands.