Parliamentary Commissioner for Administration decision involving the Home Office and the Refusal to release a complete copy of 'Internet Detective - An Investigator's Guide', Case No: A.3/00, PCA - 4^th Report, Volume 1, Access to Official Information, Session 1999-2000, 24 May 2000.

Parliamentary Commissioner for Administration - Investigations Completed - November 1999 to March 2000

Volume 1 ACCESS TO OFFICIAL INFORMATION, 4th Report - Session 1999-2000 Presented to Parliament pursuant to Section 10(4) of the Parliamentary Commission Act 1967. Ordered by The House of Commons to be printed 24 May 2000. Originally at http://www.parliament.ombudsman.org.uk/pca/document/hc494/494-a3.htm

HOME OFFICE - A.3/00

Refusal to release a complete copy of 'Internet Detective - An Investigator's Guide'

Mr K, an academic, complained that the Home Office failed to supply him with a complete copy of 'Internet Detective - An Investigator's Guide' (Internet Detective). In response to his initial requests for the publication the Home Office said that they would provide him with a censored copy only and that Exemption 4 applied to the parts that they had withheld. After Mr K complained that less censored copies of 'Internet Detective' had already been made available to members of the press the Home Office agreed to provide him with a copy of the publication that was identical to the one that had already been released. That copy only had part 10 missing. In response to the statement of complaint the Home Office maintained that certain sections of part 10, which they later identified, were covered by Exemption 4(b). The Ombudsman held that while Exemption 4(b) did apply to the sections that the Home Office had identified the rest of part 10 should be released. The Ombudsman also made clear that the Home Office were not prevented by anything mentioned in his report from providing Mr K with a complete copy of 'Internet Detective' subject to conditions which they might choose to impose. He also found that there was room for improvement in the way that Mr K's complaint was handled. The Ombudsman found the complaint to be partially justified.

2.1 Mr K complained that the Home Office refused to supply him with information to which he had an entitlement under the Code of Practice on Access to Government Information (the Code).

Background

2.2 Mr K is an academic who specialises in law and the internet. On 30 October 1998 he sent an e-mail to the Policy Research Group (PRG) at the Home Office asking for a copy of a PRG publication entitled 'The Internet Detective - An Investigator's Guide' (Internet Detective). On 2 November PRG informed Mr K that 'Internet Detective is not for public release as it has a number of operationally sensitive parts'. Mr K e-mailed PRG back to ask if he could be given a censored copy. PRG, in reply, said that they would be prepared to provide him with a censored copy of Internet Detective if he could explain what use it would be to him. On 3 November Mr K e-mailed PRG to say that he wanted his request for Internet Detective to be treated as a request under the Code, and that the Code did not require him to tell PRG what he wanted the publication for. He said also that he would be willing to pay, if requested to do so.

2.3 On 5 November PRG e-mailed Mr K to say that they were prepared, upon the payment of a fee, to provide him with a censored copy of Internet Detective from which the 'sensitive' parts had been removed. The following day Mr K wrote to PRG, enclosing the requested fee, and asking for his copy of Internet Detective to be accompanied by an explanation, in Code terms, as to why any withheld material was not provided. In their reply, dated 9 November, PRG said that the undisclosed parts of the publication related to advice given to police officers on preventing and detecting crime via the Internet and that this advice was subject to Part II paragraph 4 of the Code.

2.4 Mr K subsequently received his copy of Internet Detective; it had parts 8-10 and Appendices C and D removed. On 11 November Mr K wrote to PRG and said that he wished to appeal against the decision to provide him with only a censored version. He said that less heavily censored copies of the publication than the one he had received had been provided to members of the media. In support of this contention he submitted to PRG a letter from a journalist who said that only section 10 had been deleted from the copy sent to him. On 12 November PRG agreed to provide Mr K with a copy of Internet Detective from which only part 10 had been removed. They explained that two censored versions of Internet Detective existed and they had inadvertently sent him the more heavily censored version of the two, for which they apologised.

2.5 On 16 November Mr K appealed again about the decision not to provide him with a complete version of Internet Detective. On 1 December PRG told Mr K that they were treating this as an Open Government appeal. They continued: 'as soon as we have spoken with ACPO (the Association of Chief Police Officers) (with whom we share the document and who, we understand, are not subject to the disclosure until the FOI Bill is passed) I will get back to you'. On 9 December PRG informed Mr K that they had decided to decline his request for the censored parts of Internet Detective 'under the exemptions in the code' and that he should confirm if he wished to 'proceed to the next stage of the Open Government Code process' which consisted of a review of their decision by the Record Management Services unit (RMS) at the Home Office. The following day Mr K wrote back to PRG to confirm that he wished to pursue an appeal.

2.6 On 5 February 1999 PRG e-mailed Mr K to the effect that they hoped to provide him with a reply by the end of the month. RMS duly wrote to Mr K on 26 February to say that, having considered his complaint, they had decided not to provide him with an uncensored version of Internet Detective. They explained that to disclose the information sought 'could prejudice the enforcement or proper administration of the law including the prevention, investigation or detection of crime'. Mr K was advised of his right of appeal to this Office.

Department's reasons for refusing access

2.7 When commenting initially on the complaint the Permanent Secretary at the Home Office said that the undisclosed part of the publication was withheld on police advice that it contained operationally sensitive material the disclosure of which could assist potential criminals in the commission of a crime. On that basis the Permanent Secretary said that he was satisfied that the information concerned had been correctly withheld and that '[his] staff were correct in accepting the police view that certain sections of Chapter 10 of the booklet were of operational sensitivity and should therefore be confined as far as practical to ''police eyes only''. The Permanent Secretary quoted a letter from ACPO in support of this approach which referred, although not directly, to Exemption 4(b) of the Code. In a subsequent letter the Permanent Secretary identified explicitly seventeen passages or part passages in Part 10 to which he thought Exemption 4(b) applied.

The Code of Practice on Access to Government Information

2.8 In their correspondence with Mr K the Home Office have referred in general to paragraph 4 of Part II of the Code. It is clear that the Home Office had in mind Exemption 4(b). This reads, in full:

'Information whose disclosure could prejudice the enforcement or proper administration of the law, including the prevention, investigation or detection of crime, or the apprehension or prosecution of offenders.'

I also draw attention to that part of the preamble to Part II of the Code which says that 'In those categories which refer to harm or prejudice, the presumption remains that the information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available'.

Assessment

2.9 My task in considering this complaint is to determine whether or not Mr K has entitlement, under the Code, to the information he has requested. It should be noted in this context that the Code gives entitlement only to information, not to documents, and it is on this basis that the complaint has been examined.

2.10 In deciding whether or not Mr K has an entitlement to the information contained in Part 10 of Internet Detective it is helpful to begin by setting out the information Mr K has already received. The first seven parts of Internet Detective consist primarily of general background to the Internet; explaining what it is, how it works, how to connect on to it and other similar information. Part 8, however, deals with the subject of hiding identities and information on the Internet and Part 9 deals with general investigative techniques. Both of these parts were originally withheld from Mr K but subsequently disclosed to him. Mr K also has the contents page for Part 10 of the book. This page is fairly detailed, giving the reader a clear idea of the topics covered. In addition Mr K has received all the appendices to the book, of which there are eleven. Two of these, Appendix C (dealing with crimes currently committed on the Internet) and Appendix D (which consists of a range of case studies) were also removed from the copy initially sent to Mr K but were subsequently made available to him. Consequently, the majority of the information contained in Internet Detective has now been given to Mr K.

2.11 In deciding whether or not Mr K should be provided with the remaining, undisclosed, information I need to consider the applicability of Exemption 4(b). Could the disclosure of this information prejudice the enforcement or proper administration of the law, given that this incorporates the prevention, detection and investigation of crime? In considering this I need also to have in mind the harm test; would the public interest in the disclosure of the information be outweighed by the harm likely to arise from disclosure? In coming to a view on this matter I have also taken into account the Cabinet Office's Guidance on Interpretation of the Code; in particular, that information which might fall to be protected under this exemption could include 'the existence, nature or details of plans or investigative techniques for tackling crime or fraud, where disclosure could assist suspects or criminals to counter lawful methods of crime prevention or detection' and 'any information which could facilitate the commission of an offence - for example, information on criminal methods or techniques.' (paragraph 4.11). I note also (paragraph 4.12) that there should be 'a reasonable expectation that disclosure could undermine the effectiveness of law enforcement processes or facilitate the commission of an offence. This need not amount to a probability, but absurd or highly speculative claims should be avoided'.

2.12 I accept that university researchers in the field of crime and law enforcement have a genuine interest in the information in Part 10 of Internet Detective, and so there is a public interest in the release of this information. However this has to be balanced against the potential for harm which could result from its unrestricted disclosure. In assessing whether such harm would be likely to result, I have noted the views of the Permanent Secretary on why the unrestricted disclosure of the specific sections of Part 10 which he identified are considered prejudicial to the investigation and detection of crime. While it may be that some of the investigative guidance and techniques referred to in these sections could be anticipated by some potential criminals, I accept that there is a reasonable expectation that their disclosure could undermine the effectiveness of law enforcement processes. I therefore conclude that Exemption 4(b) of the Code can be held to apply to those sections of Part 10 of the Internet Detective.

2.13 While I have concluded that Mr K has no entitlement under the Code to the release of that information in Part 10, it remains open to the Home Office, if they so wish, to consider releasing to Mr K, subject to any conditions they choose, some or all of this information which they are entitled to withhold under the Code. Nothing I have said in this report prevents them from doing this.

2.14 I now turn to the way in which the Home Office handled Mr K's request. All requests for information should be treated as requests under the Code and handled accordingly. In my opinion, the initial handling of Mr K's request could in some respects have been improved: in particular, PRG's offer to provide a censored copy of Internet Detective to Mr K only if he explained why he wanted it. There is no requirement under the Code for an individual to disclose the purpose for which information is sought, as Mr K himself pointed out. It was also unfortunate that Mr K was only provided with a second, less censored, copy of Internet Detective after making his own enquiries about the version of the publication which had been provided to the press. PRG apologised for the inconvenience caused by what was an error rather than an administrative decision and that seemed to me to have been only right. I also recognised that during his correspondence with the Home Office Mr K was given an explanation, in Code terms, as to why he was not to be provided with an uncensored copy of Internet Detective. It was, however, unfortunate that the review carried out by RMS, which was effectively launched by Mr K's request for a review on 10 December 1998, was not completed until 26 February 1999, almost three months later. For these shortcomings in the handling of Mr K's complaint I suggested to the Permanent Secretary that his Department should offer Mr K a further apology. In reply he said that he recognised that Mr K's complaint could have been handled better and offered him such an apology.

Conclusion

2.15 I accept that certain sections, though not the whole, of Part 10 of Internet Detective fall within the scope of Exemption 4(b).

Total Screening and Investigation time = 24 weeks

Prepared 25 May 2000

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