Thomas, left, who regulates the data protection act (as
well as FOIA), wrote to the PCC, the newspaper industry regulator, urging
it to warn newspapers about the methods they often use to obtain personal
While the PCC, controversially, is not subject to the freedom of information act, the information commissioner disclosed the letters and e-mails under FOIA.
And they show that the PCC had, over a period of a year, come under heavy pressure from the information commissioner to produce “a clear public statement warning journalists and editors of the very real risks of committing criminal offences.”
Otherwise, said Thomas to Sir Christopher Meyer, PCC chairman, “The PCC and the principles of self regulation will be shown in a poor light.”
The exchange comes amid growing concerns about newspapers buying confidential information illegally – either from bin scavengers, such as Benji “the binman” Pell, or private detectives.
These concerns were heightened by investigations carried out by the metropolitan police anti-corruption group into the leaking of information from the police national computer (PNC) to the press.
And, following a lengthy investigation into the supply of private material – such as telephone, bank and tax account records – to newspapers in breach of section 55 of the data protection act (1998), the information commissioner launched a prosecution against six people working for private detective agencies. But his clampdown suffered a blow when that case was subsequently dropped.
The PCC issued guidance to editors in March 2005 over the data protection act. “It is important for journalists to understand,” its advises, that the act contains “controls and prohibitions on the way that information can be obtained and disclosed.
“There is a specific criminal offence of unlawful obtaining of personal data. A person must not knowingly or recklessly, without the consent of the data controller, obtain or disclose personal data or the information that it contains, or procure the disclosure to another person of the information contained in personal data.”
“It is also an offence to sell or offer to sell information that has been obtained without consent.”
The guidance says that a defence might be that it was “necessary for the purpose of preventing or detecting crime,” or was “justified as being in the public interest.”
The PCC’s code of practice gives guidance on what may be covered by the “public interest”, such as detecting or exposing serious misdemeanour, protecting public health and safety, and preventing the public from being misled by some statement or action of an individual or organisation.
But, the PCC guidance adds: “It would be advisable to seek legal advice before assuming whether any of these defences will apply.”
The newly released correspondence shows that the PCC and the information commissioner wrangled over the guidance, with the latter believing the former was not going far enough.
Tim Toulmin, PCC director, told Phil Jones, assistant commissioner, in one e-mail of April 2004: “I will have to strike a balance between urging caution and sounding too restrictive – something the newspaper people involved have been concerned about.”
Jones e-mailed Thomas, his boss, about the PCC’s second draft, saying: “Given that it is, in the end, up to them, I intend to acknowledge that it is a great improvement on the first draft (heavily influenced by newspapers lawyers), whilst also making clear that we don’t, in any sense, endorse it as we think that they could and should take a stronger line on [section] s55.”
Another of Thomas’s officials told him in an e-mail: “On the s55 defence, it is probably too narrow just to look at the importance of the information to justify the public interest: some proportionality to the method used will need to be demonstrated.”
However, the final guidance does not reflect this point.
The information commissioner’s office was also concerned about the PCC’s advice to journalists hoping to use the public interest defence that a court would have to decide whether obtaining the information without the agreement of the data controller “was of sufficient importance to override the protection afforded by the act.”
Jones e-mailed Toulmin in April 2004: “I would prefer a more robust version of what you cover by ‘to override the protection afforded by the act’ to emphasise that there needs to be a very strong justification to sanction obtaining which would otherwise be criminal.
“I would therefore prefer that sentence to be recast along the lines of, ‘A court would have to decide whether, in the circumstances, obtaining the information dishonestly/without the agreement of the organisation concerned, was justified/ warranted.’”
Thomas learnt at a lunch with Meyer and Toulmin in December 2004 that the PCC guidance note had “run into the sand”. Thomas wrote to Meyer the following week, saying: “My concern is that unless the attention of journalists and editors is drawn to the real possibility of committing criminal offences under the data protection act 1998 there is a real risk that the all too widespread practice of paying to obtain confidential information about people in the public eye will continue unabated.
“As you know, I am strongly of the view that the PCC and the principles of self regulation will be shown in a poor light unless – at the least – you are able to point to a clear public statement warning journalists and editors of the very real risks of committing criminal offences. Ideally, this would be reinforced by a clear message from the PCC as to the unacceptability of journalistic law breaking.”
“We were broadly content with the draft we saw earlier in the year… My particular concern is that journalists and editors might take unwarranted comfort from the [public interest] defence.”
“I fear that it might be assumed that simply because a journalist subjectively considers a particular story to be in the public interest, the prohibitions on obtaining personal information without consent can safely be ignored. I am satisfied that the courts would not accept this defence lightly. In other words, they would consider that the public interest in the obtaining (and presumably subsequent publication) of the information in question would have to be extremely strong to justify obtaining the information dishonestly.”
Meyer replied by saying that he had asked Toulmin to “resurrect” the guidance note, adding: “It goes without saying that the [PCC] cannot condone criminal behaviour, and if the note raises awareness about what journalists must do to comply with the act then that will be most welcome.”
The guidance was finally issued in March 2005, but was not altered to address the information commissioner’s “particular concern” about how the public interest defence was addressed.
So far, the information commissioner has not yet prosecuted any journalist over breaching section 55 of the act. If and when he does, the courts will decide who was right about the extent of the public interest defence.
A shorter version of this article first appeared in Press Gazette. Mark Watts is author of The Fleet Street Sewer Rat, available in hardback for £10.00 from www.fleet-street-sewer-rat.com.
Tim Toulmin wrote a letter published in Press Gazette, after a shorter version of this article appeared in that magazine, saying: “The information commissioner was pushing at an open door as far as the PCC was concerned regarding his request for us to issue guidance about the data protection act.”
“The dull truth is that the guidance was somewhat delayed by detailed queries from one of the trade bodies. It is hardly fair for us or the information commissioner to say he pressured us: when this hurdle arose we heard nothing from his office for eight months while the matter was considered further.”
We say that one benefit of FOIA is that it helps the media and public go behind the PR gloss. And so it is that while Toulmin seeks to deny that the information commissioner pressured the PCC over stopping newspapers from obtaining confidential information illegally, we know the true picture. Correspondence spanning a year up until shortly before the PCC issued advice to editors over the subject in March 2005 shows that the information commissioner pressed for that guidance to be given and repeatedly asked for drafts to be made tougher: requests that met with partial success.
The information commissioner’s office released the correspondence under FOIA. The PCC is not subject to FOIA, but that may yet change. Perhaps, we can then find out what’s really going on at the PCC.
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