Yes! We have no Bananas!

A few weeks ago, the Independent had a good splash over comments made by an insider in Operation Motorman, the ICO’s investigation into private investigators that started a ball rolling very slowly toward this summer’s phone hacking furore, and the remarkable humbling of Rupert Murdoch. In particular, the Independent’s source claimed that the ICO had bottled it, backing away from prosecuting those implicated in wrongdoing because they were afraid of the consequences of prosecuting journalists.
Despite the fact that seasoned ICO watchers might give this story some credence (see previous blog posts for my views on their rather lame approach to enforcing the DPA) the Information Commissioner’s Office issued a stern retort, stating firmly that the decision not to prosecute was based on “expert legal advice”: http://tinyurl.com/64vwdyx
This is a sound reason not to take action. One might wish for a Commissioner with a Quixotic urge to tilt at every windmill, but it would be expensive and a little self-indulgent. However, I was curious to read the advice to find out if it was as definitive as the ICO implied, especially given the fact that reliance on legal advice had been such a feature of the phone hacking case (i.e. the disagreement between the Murdoch clan and their erstwhile lawyers Harbottle Lewis over what HB’s advice on phone hacking meant). So I made an FOI request for the expert legal advice.
It was entirely likely that the ICO would refuse, using a possible double whammy of Section 30 (investigations) and Section 42 (legal privilege), but I thought I had a serious case of public interest on my side. Moreover, if they said no, this opened up the tantalising possibility of finally being the applicant in a worthwhile and challenging FOI case, with the added bonus that the public authority is one who will never pay me for training or consultancy (it’s bad policy to add to the workloads of potential customers, in my opinion).
So imagine my anticipation when the response finally arrived. They say yes, and I have a really interesting piece of information; they say no, and I can challenge them on the public interest. Given the gritty certainty of the ICO statement, there was only one outcome I had not foreseen despite the fact that I tell everyone I train that it’s the easiest answer in FOI, as long as it’s true: the advice is not held.
Readers of this blog (all four of you) may by now be inured to my ICO bashing, but frankly, I’m staggered. Are we to believe that the advice was received verbally, and never written down? I’m making an assumption that the advice was held, and has either been lost or destroyed. Either possibility is shocking.

The importance of the information is underlined by the way in which the Deputy Commissioner David Smith used it last month to defend the Commissioner’s Office from serious accusations. I’m not questioning anyone’s memory of what it said, but that’s a slender thread on which to hang a very weighty matter. I’ve put in a follow-up request, asking them to confirm whether or not it has been destroyed, but frankly, that’s a sideshow. I can just imagine the withering ‘Other Matters’ section of the decision notice that the ICO would take pleasure in writing if some other body was asked for such a pivotal piece of legal advice, with barbed remarks about records management. I still want to defend the ICO from people who want to abolish it, but frankly, they don’t exactly make it easy. The next time they criticise someone else for the quality of the record keeping, we should all take it with a pinch of salt.

Below is the response, including my request and their response. I’ve cut the review procedures and other elements, but left in all of their substantive response:

“Dear Mr Turner
Further to our acknowledgement dated 15 September 2011 we are now in a position to respond to your request for information under the Freedom of Information Act.

In your email dated 15 September 2011 you requested the following information:

In the Independent this morning, David Smith made the following statement.
“Our decision was based on expert legal advice that pursuing prosecutions would not be in the public interest, because of the difficulty in proving beyond all reasonable doubt that the journalists who received information from Mr Whittamore knew it could only be obtained illegally.”
I would like to request a copy of the legal advice Mr Smith refers to here. I assume you will consider the application of Section 42. Please take into account the following factors – Mr Smith has revealed the content of the legal advice, and disclosure of it is vital in terms of the public interest. The nature of the advice would assist in revealing whether allegations made in the Independent by a former ICO employee about the reasons for non-prosecution of journalists have any foundation.
In response to your request, we do not hold recorded information in relation to this request. We do not hold a written legal advice in relation to the decision not to prosecute the journalists involved in Operation Motorman.”


Comments

  1. Tim, although the UK FOIA restricts the definition of 'information' to recorded information, the NZ Official Information Act has been interpreted so as not to be limited only to this subset of what is known to an agency.Consequently, if an agency responds that it does not hold any recorded information in relation to a request where it is clear that they should, the Ombudsman (who enforces the Act there) suggests to the agency that they make a written note of what is known to them, but apparently not recorded anywhere. Sometimes when this issue arises, it has the miraculous effect of the agency finding records that it previously did not know it had…More info here:http://ombudsmen.parliament.nz/imagelibrary/100195.pdfHowever, following passage of the Public Records Act 2005, section 17 of which creates an obligation on agencies to 'create and maintain' records, the Ombudsman could also potentially make findings regarding compliance with that Act, or draw it to the attention of the Chief Archivist.

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