Dear Sir or Madam,

BERR recently responded to the EU Commission on behalf of the UK
government. You have chosen not to release the response in full to
the press.

It is in the public interest to disclose why the UK government
feels that Phorm and BT, the UK's largest telecoms provider, can
secretly monitor tens of thousands of its customers' web browsing
habits without consent, and why so far the Information
Commissioner's Office and the police have not taken any enforcement
action.

I request full disclosure of that letter, and specifically the
answers to the following questions:

1. What are the United Kingdom laws and other legal acts which
govern activities falling within the scope of Articles 5(1) and 6
of Directive 2002/58/EC on privacy and electronic communications
and Articles 6, 7 and 17(1) of Directive 95/46/EC?

2. Which United Kingdom authority(-ies) is (are) competent (i) to
investigate whether there have been any breaches of the national
law transposing each of the above-mentioned provisions of Community
law arising from the past trials of Phorm technology carried out by
BT and (ii) to impose any penalties for infringement of those
provisions where appropriate?

3. Have there been any investigations about the past trials of
Phorm technology by BT and what were their results and the
conclusions of the competent authority(-ies)? Are there ongoing
investigations about possible similar activities by other ISPs?

4. What remedies, liability and sanctions are provided for by
United Kingdom law in accordance with Article 15(2) of the
Directive on privacy and electronic communications, which may be
sought by users affected by the past trials of the Phorm technology
and may be imposed by the competent United Kingdom authority(-ies)
including the courts?

5. According to the information available to the United Kingdom
authorities, what exactly will be the methodology followed by the
ISPs in order to obtain their customers' consent for the deployment
of Phorm technology in accordance with the relevant legal
requirements and what is the United Kingdom authorities' assessment
of this methodology?

Yours faithfully,

Dear Sir or Madam,

This request was due a response on October 14th. It has not even
been acknowledged.

I should not need to remind you that section 10(1) of the Freedom
of Information Act states the time limit for compliance is the
twentieth working day following the date of receipt of the request.
Your failure to respond within the time limit is a breach of the
Act.

I look forward to receiving the requested information promptly
otherwise I will have no option but to request an internal review.

Yours faithfully,

I Cooper

<<Reply sent on FoI case 08-0619 Freedom of Information request - BERR
response to EU on Phorm BT trials.pdf>>
Dear Mr Cooper

I refer to your request of 17 September 2008 made under the
Freedom of Information Act 2000.

Please find the reply to your enquiry attached.

Please accept my sincere apologies for being one day late with
the reply.

Yours sincerely

Patrick Balchin

Patrick Balchin,
Department for Business, Enterprise and Regulatory Reform,
1 Victoria Street
London
SW1H 0ET
Direct Tel: 0207 215 1772
E-mail [email address]
http://www.getsafeonline.org/

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Dear Patrick Balchin (BR2),

RE: FoI case 08-0619

Thank you for your letter. I appreciate that the response was only
one day late but the Act specifically states 20 working days and
not 21.

You state that the content of the letter is being withheld by
application of sections 27 (1) (b) and 35 (1) (a) of the Freedom of
Information Act.

'Section 27 (1) (b) exempts information if its disclosure would, or
would be likely to prejudice, relations between the United Kingdom
and any international organisation. This would include, for
example, the European Commission.'

The letter in question has been sent to the EU Commission therefore
they already have a copy. As for the initial views of the
Commission, it should be noted that the Commission seem quite happy
to release details of their letter to the UK government. A full
copy of the initial letter sent to the UK government has been
published and is in the public domain. Therefore I fail to see how
disclosure of the BERR letter can prejudice relations.

Your response also mentions negotiations. The EU letter to the UK
government made no reference to negotiations. The Commission has
simply asked why the UK government believes that previous Phorm
technology trials did not contravene EU law. I requested full
disclosure so that the British public can see why the UK government
believes that Phorm technology does not contravene EU law.

As a result I do not believe that section 27 gives sufficient
grounds for refusal to release the contents of the letter.

'Section 35 (1) (a) provides that information is exempt if it
relates to the formulation or development of government policy'

It would appear that the government is giving assertions that Phorm
technology does not contravene EU laws. I do not see this as
development or formulation of government policy, unless of course,
the government is formulating policy to allow private businesses
the option of ignoring laws they don't particularly like.

With regard to the five questions quoted in the original request,
the answers to those five questions should be contained in the
letter to the EU. Therefore I consider the full request to be valid
and simply ignoring the questions is unjustified.

It is my belief that the reasons given for refusal to disclose any
of the requested information are unreasonable and therefore I
request an internal review of this decision.

Yours sincerely,

I Cooper

Dear Patrick Balchin (BR2),

It is now the 29th of October 2008.

I wrote a reply on the 17th of October to your response dated 15th
October 2008 regarding the original enquiry.

In that reply I requested an internal review. To date I have not
received an acknowledgement of my request for an internal review.

Out of common courtesy, could either yourself or some other person
within BERR (BR2) acknowledge the request.

Thank you.

Yours sincerely,

I Cooper

Thanks for your message. I am out of the officeon a trainig course on Wednesday 29 October.

If you need an urgent response on ICT USer matters please contact either Anna Stacey (tel 020 7215 1409) or Jane Chelliah-Manning (020 7215 1630), or on Communication Supply and resiliance matters please contact Pauline Tordoff on 020 7215 1202

Please note that your e-mail will not be accessed until my return on Thursday.

The generic BERR e-mail format is [email address]

Regards

Patrick

Patrick Balchin
Communications Supply & ICT User Impact teams
Department for Business, Enterprise and Regulatory Reform
direct line : 020 7215 1772
e-mail [email address]

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Dear Mr Cooper
Thank you for your e-mail.

I am sorry your request for an internal review has not been
acknowledged. I am sorry to say that it is an oversight on my part.

I would be grateful if you would treat this e-mail as confirmation that
your request was received on 17 October and that your request for an
internal review is being actioned under the requirements of the FoI Act.
A letter acknowledging the request is also being sent for your records.

Yours sincerely

Patrick Balchin

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