Personal Data

In an earlier post we disclosed a previously redacted paragraph from the Met Police (Specialist Crime Unit) case assessment report – to which we had recently gained access care of the Information Commissioner’s Office (ICO).

The report in question had been, as you can see from our post of 10 of May 2009, almost entirely redacted by the Met who claimed that: "the majority of information contained within the report has been redacted as it is exempt by virtue of Section 40(1)&(2) of the Act."

Section 40(1) of the Freedom of Information Act refers to the personal data of the subject data applicant, whereas Section 40(2) refers to the personal data of other people .[*]
Thus, the Met implied, over 80% of their assessment of the Gaul RFI consisted of biographic detail … (!?) although in their response to our FOI request for information regarding any witnesses/ parties questioned by detectives during their assessment process, the police indicated there were none.

The Met also advised that, should we wish to request the redacted information in respect of Section 40(1) (i.e. personal data about ourselves), which is contained in that report, we would have to complete a Subject Access Request (SAR) application.

We did complete two SAR forms and paid the associated fees. The response we got, however, was the release of another few lines from their case assessment report (these, except for our names, did not contain any other personal data, but only the allegations we had made about the shortcomings of the Gaul RFI).

The rest still remained concealed. That is a big chunk of the report – paragraphs 8 to 18 – remained redacted, purportedly, under the provisions of Section 40(2) of the Freedom of Information Act, which relates to third parties’ personal data.

Now, if we take another look at the redacted report, we can see that paragraph 19 states that the case officer "reviewed the materials described at paragraphs 10 to 18" in order to assess the validity of our complaint about the undisclosed design faults of the Gaul. The materials should, therefore, have contained technical rather than personal information. For, anyway, what personal information could they have contained and about whom? Under the 1998 Data Protection Act (DPA), personal data is clearly defined as data about a living individual, who can be identified from those data.

It may be that the documents referred to in the police assessment report did, in effect, contain information relating to technical matters, but - based on the fact that those materials had an author who, by necessity, must have been a living person, and judging that any expressed opinions reveal the insights of a person’s mind - the Met may have gone as far as to conclude that disclosure of such insights were prone to lead to undue intimacy and breach, therefore, the author’s rights under the Data Protection Act.

Thus, the Met have conveniently missed the fact that personal data is information about a person, not information a originating from a person – otherwise, except that produced by non-human species, all information would be exempt.

Also, as we have already contended in our reply to the Met, a witness statement is not considered personal data under the provisions of the 1998 Data Protection Act, unless the witness himself is the focus of that information. Just because a document contains the name of a person does not mean that it is about that person.

All opinion has an author, but if the opinion is not about the author himself and his personal life, then that opinion should be able to be passed on. Besides, the Data Protection Act itself suggests the means by which information can be conveyed without revealing its source: i.e. the omission of names or other identity details.

Unfortunately, by choosing not to disclose the requested information, the Metropolitan Police have now left room for suspecting that the content of their case assessment report is either embarrassing or untrue.

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[*](1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.

(2) Any information to which a request for information relates is also exempt information if-

(a) it constitutes personal data which do not fall within subsection (1), and

(b) either the first or the second condition below is satisfied. [etc]

The Met was not quite convinced by the Gaul RFI experts...

…but left it to us to investigate the fraud

In an earlier post, we gave details of the information received from the Metropolitan Police in response to our FOI request for the police report assessing our allegations that the conduct and the outcome of the Gaul inquiry (RFI) amounted to fraud.

As the published copy of the report shows, most of the information therein had been redacted so that nothing relevant could be seen.

Last month, however, following an intervention from the Information Commissioner, the Met have, reluctantly, released an extra paragraph - one authored presumably by a superior of the case assessment officer - which simply reads:

Please thank DC Boyce for his prompt and thorough assessment of this case.

DC Boyce seems to conclude that the Inquiry’s findings as to why various chutes were open are not necessarily correct [1] when considered against conflicting expert evidence. I agree that these issues are very subjective and I do not have sufficient knowledge of these matters to either agree or disagree with the Inquiry’s conclusions. However, I accept that the evidence to support a further criminal investigation is not made out.

It is quite something to get the police to admit, however reluctantly, that the conclusions of the Gaul inquiry were not necessarily correct (one does not need specialised knowledge to admit that - just a bit of common sense).

The evidence we had provided, both to the police as well as on this blog, should have been more than enough to trigger a criminal investigation. It would have been very easy for the Met detectives to contact the few witnesses we had suggested and thus extract further details about what went on behind the scenes prior and during the Gaul RFI.

Unfortunately, the Met must have decided that it was not their job to investigate and collect evidence, but ours.

As to the rest of the redactions in the case assessment report, both the Met and the Information Commissioner’s Office suggested that a Subject Access Data Request [2](SAR) might shed some light upon those black lines, which we, accordingly, submitted. But that is another story…

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[1] The bold emphasis belongs to us.

[2] We also requested the Met to release, for a small fee, any personal data about us that was contained within the report in question.

Our brave Police force

After 5 months of delays and prevarication, the Metropolitan Police felt finally able to release a copy of the document requested by us under the provisions of the FOI Act.

And this is how the released copy looks like:

The Met’s contention that obliterating most of the text in their ‘investigation report’ was necessary in order to protect ‘personal data’ is so absurd and so blatantly insincere that makes you wonder whether their response was meant to be, in fact, some sort of joke or mockery.

Anyhow, we took them seriously and sent another request, disproving their arguments and urging them to reconsider...

... although we have serious doubts as to their willingness and ability to serve the public interest in this matter.

Can the people of this country still trust the police force to offer them any protection against the criminal ‘elite’, or have the police, nowadays, been turned into a different species - something between the rogue army of a failed state and the timorous functionaries of a conquered nation?

Contrived ignorance

Our previous post revealed that, according to the Department for Transport, the only advice received by Mr Jim Fitzpatrick, the Transport Minister, in response to our complaint about the Gaul RFI, was the draft of his letter to the Shadow Transport Minister, as jotted down by some unnamed DfT officials.

Forgetting the candid Mr Fitzpatrick for a moment, we turn our attention again towards Mr Geoff Hoon, the Secretary of State for Transport, for it is Mr Hoon himself who is obliged under the provisions of the 1995 Merchant Shipping Act to order a re-hearing of the Gaul RFI, if it “appears” to him that there are “grounds for suspecting that a miscarriage of justice may have occurred”.

In his recent statement (see HERE) the Secretary of State for Transport asserted that there were “no grounds for suspecting that a miscarriage of justice may have occurred” during the Gaul RFI, although - as his own Department currently maintains - the grounds put forward by us have never been properly examined.
In fact, Mr Hoon made sure that no adequate technical counsel was obtained, lest the ‘grounds for suspecting a miscarriage of justice’ would become too ‘apparent’ to him, obliging him to re-open the case. (That is assuming he didn’t know the truth already.)
His contrived ignorance of the matter may also be seen as a precautionary measure taken with a view to escaping future liability: if ever brought to account, Mr Hoon must have reckoned, he would be able to claim lack of knowledge about the technical basis of our arguments.

Thus, like the drug courier who refrains from looking in his suitcase, Mr Hoon has avoided asking for expert advice, shielding his eyes from any unwanted knowledge.
As a lawyer, however, Mr Hoon can be no ingénue in such legal matters and should be aware that this is not how things work in the normal world. Courts are known to have decreed many times in the past that the ignorance-pleading smuggler should have known, and they may likewise, one day, decide that Mr Hoon should have asked.

(Related POST)

Draft advice

The latest answer from the Department for Transport to one of our FOI requests contains an attractive twist.

Our initial query concerned the source of the technical advice given to the Transport Minister, Mr Jim Fitzpatrick, in response to our criticisms of the Gaul RFI.

In response, the DfT informs us that the exclusive source of that ‘advice’, which Mr Fitzpatrick claimed to have received in his letter to the Shadow Minister for Transport, was nothing else but the very draft of that letter – i.e. the one in which he declared himself advised…?!

Génial!! The DfT reply may not be very informative, but, one must admit, it has a notable artistic value.

The common practice, as far as I am aware, given that there are no marine specialists within the Department itself, is to seek technical counsel from one of the DfT’s agencies: i.e. the MCA [1] or the MAIB [2]. The DfT, however, informs us that “no request for additional information was made by the Minister”.
So which officials within the DfT assessed the technical evidence we had provided?

Are we to assume that, perhaps, the Shadow Minister for Transport was corresponding, in fact, with one of Mr Fitzpatrick’s typists?
Is it not more likely that, as it nowadays happens, the Minister outlined his politics-driven decision and then asked the DfT civil servants to draft his response along those lines? Common sense and experience tell us that no official would make ministerial decisions in his place – especially when the issues at stake are both complex and sensitive.

Whatever the case, the statement in Mr Fitzpatrick’s letter: “I am advised that there is no reason to re-open the investigation” now looks as though it had been intended to mislead his Opposition counter-part into assuming that, maybe, a great assembly of experts and scholars had been drawn in to review and offer advice on our criticism of the Gaul RFI.

Put together in one piece, all the correspondence received so far from the DfT looks like a Möbius strip: however attentively you follow it, you will always end up on the opposite side without crossing any boundary – a loop that takes you without interruption from back to front and front to back, without giving you any sign or orientation.

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[1] Martime and Coastguard Agency

[2] Marine Accident Investigation Branch

Delaying tactics

To our request for information, dated 22 October 2008, the Department for Transport is still struggling to provide a coherent reply. They have now postponed the conclusion of their second internal review on this FOI matter until the 27th of February 2009 (LINK). Four months for a simple question…!

No more forthcoming, the Metropolitan Police, have initially put off their response to our complaint until the 18th of February. “We hope to complete our internal review no later than 18 February 2009. Should there be any unforeseen delay we will contact you and update you as soon as possible”, only to advise us on the 19th of February that, due to unforeseen circumstances, they had been unable to meet the response time and that “We hope to complete our internal review no later than 27 February 2009. Should there be any unforeseen delay we will contact you and update you as soon as possible” (LINK). And so we are going on and on…

No matter that the Information Commissioner’s guidance to the FOI Act states clearly that “a reasonable time for completing an internal review is 20 working days from the date of the request for review” and that “in no case should the total time taken exceed 40 working days”, the Met have their own rhythm.

Cunning strategy, one might suspect: these cautious delaying tactics would give them more time for fixing ‘a few little things’ and limiting the embarrassment.

Somehow, I feel sorry for our humble public servants. In the quicksands of today’s politics, power struggles and uncertainty, they may find it difficult to decide when to stay still, when to jump, and which side of the fence to fall down on.

Besides, considering all the laws that our officials routinely defy nowadays, a breach of the FOI rules is a mere bagatelle.

***

UPDATE 1: On the 27th of February 2009, the Met sent us a surprise answer: "We hope to complete your review no later than 13 March 2009. Should there be any further delay, I will contact you and update you as soon as possible."

UPDATE 2: On the 13th of March the Met replied: "We hope to complete your review no later than 27 March 2009. This review is near completion and I will be in contact with you shortly to update you on the status of this case. Should there be any further delay, I will contact you and update you as soon as possible. "

UPDATE 3: And on the 27th of March the answer was: "We hope to complete your review no later than 17 April 2009. Should there be any unforeseen delay, I will contact you and update you as soon as possible."

UPDATE 4: On the 17th of April the Met duly informed us: "We hope to complete your review no later than 1 May 2009. Should there be any unforeseen delay, I will contact you and update you as soon as possible."

The Specialist Crime Unit

The New Labour Militsiya, formerly known as the Metropolitan Police, have been trying to spin their way around the institution’s publicly avowed commitment to openness and accountability.

Asked to provide information (see our FOI request HERE) about the manner in which they had dealt with our fraud and corruption allegations on the conduct and outcome of the 2004 Gaul RFI, they refused to do so, making the most of the exemption provisions in the FOI Act, and pettifogging about their grounds for absolute secrecy.

Amongst other things, they argued, disclosing the detectives’ assessment of the case and their justification for refusing to investigate our complaint could expose their “operational methodology and investigative techniques” to the general public and, potentially, to any crooks with an interest in foiling them.

Far from it being our intention to wreck the operational capability of the Met, we contend that our request was only aimed at confirming their ability to act as politically impartial public servants; we were not particularly interested in their investigative methods - which, frankly speaking, are already known to many of us, having recently read about them in the national press.

Therefore, availing ourselves, of the same FOI Act provisions and of the Information Commissioner’s interpretation thereof, we have sent the Met our reply (HERE) and insisted on a review.

The whole exchange of correspondence can be seen at:

http://www.whatdotheyknow.com/request/complaint_about_re_opened_formal

No records

When Moses received God’s commandments, he didn’t have any paper to write them down on. Still, he dutifully carved them onto clay tablets, which he carried all the way down the mountain to show his people the proof.

More than three millennia down the line, the UK Department for Transport, inexplicably, are not even able to store the instructions received from their earthly superiors, and the reasons behind some of their most important decisions are not kept in any decipherable form.

As already mentioned in a previous post, in response to our FOI request of 4 July 2008, the DfT informed us that they held “no specific technical justification [of their decision not to re-hear the Gaul RFI] recorded in any form”. Within the same reply, the DfT also mentioned that their earlier decision “fully sets out the Secretary of State’s reasoning in relation to the re-opening of the investigation”.

Unaware of what that reasoning was, we have formally asked them, via another FOI request (dated 11 September 2008), to provide us with a full account of the reasoning behind the Secretary of State’s decision not the re-open the Gaul Formal Investigation.
The DfT’s response to this latest enquiry, received on 13 October 2008, was astounding. It stated simply that “The department does not hold such an account in recorded form.”

Hmm! From the Department’s contradictory statements we are now left to surmise that either there was no analysis and justification behind their decision not to re-open the Gaul RFI, or that their reasoning has not been ‘set out’ and recorded on any physical media or legible format. It may, therefore, only exist in their heads – in the form of mental images, conceptions, impressions or phantasms. Or, perhaps, it only manifested itself via sensory representations, dispositions, moods or affections.

It is, of course, also possible that the DfT is not telling the truth. But, that would be terribly wicked and unbecoming.

The Secretary of State's justification

On the 4th of July, we lodged an FOI request with the Department for Transport, asking them to provide us with the reasons and technical arguments underpinning the Secretary of State’s earlier decision not to re-open the Gaul investigation on the basis of our disclosures.

(You can see the full exchange of correspondence at this link: http://www.whatdotheyknow.com/request/evidence_
undermining_the_results)

The DfT eventually sent us their reply in which they stated that the Secretary of State’s decision “fully sets out the Secretary of State’s reasoning in relation to the re-opening of the investigation” and that the DfT held “no specific technical justification [of that decision] recorded in any form”

The Department’s statement, short though it is, is pregnant with implied meaning.

Thence we found out that our disclosures and technical arguments made over the past two years have washed over the DfT like water off a duck’s back. This is an admission by the British government that concrete evidence, invalidating the results of a public inquiry, was not considered as required by law. (See also our post of 12 July 2007)

This, of course, is understandable since the Department know very well that the outcome of the Gaul RFI represents a miscarriage of justice, without having to review our evidence. The officials’ obstinate non-engagement with the subject is their way of maintaining the deceit without getting themselves ensnared by their tongues.

Their claim that the Secretary of State’s decision “fully sets out the Secretary of State’s reasoning in relation to the re-opening of the investigation” is already hazarded, and so untrue as to make it laughable.
Given that the response previously received from the Secretary of State only mentions that “the Department is satisfied that there is no reason to doubt the outcome of the expert analysis that led to the Re-opened Formal Investigations conclusions and consequently there is no reason to re-open the investigation”, the DfT’s latest statement can only be taken as a crude parody or as a blunt admission that this is, actually, as far as the Secretary of State’s reasoning powers normally go.

Yet, through its very brevity, the DfT’s reply provides us with further confirmation that the decision not to re-open the Gaul RFI was unlawfully taken and politically motivated.