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Consultation between BT, Phorm and BERR
To Department for Business, Enterprise and Regulatory Reform by I Cooper 24 July 2008
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To Department for Business, Enterprise and Regulatory Reform by P Seurre 16 September 2008
Meeting with BT and 'Line Taken' in the response to the EU Commission
To Department for Business, Enterprise and Regulatory Reform by Paul Hancocks 19 October 2008
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Copies of correspondence between BERR/DBIS and FCO concerning 121media/Phorm
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To Department for Business, Innovation and Skills by P. John 30 September 2009
BERR response to EU on Phorm / BT trials
I Cooper made this Freedom of Information request to Department for Business, Enterprise and Regulatory Reform
The request was refused by Department for Business, Enterprise and Regulatory Reform.
From: I Cooper
16 September 2008
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,
Anon left an annotation ( 2 October 2008)
You can discuss the BERR response to the EU along with other discussions regarding general online privacy on the following forum: https://nodpi.org
From: I Cooper
15 October 2008
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
From: Balchin Patrick (BR2)
15 October 2008
Reply sent on FoI case 08 0619 Freedom of Information request BERR response to EU on Phorm BT trials.pdf
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<<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]
[1]http://www.getsafeonline.org/
show quoted sections
Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.
References
Visible links
1. http://www.getsafeonline.org/
Steve Hankin left an annotation (15 October 2008)
I am personally quite surprised at the lack of attention given to this request. It seems that only question 1 has been addressed at all. I woudl seek advice as to the failure to address the other questions - is the authority allowed to ignore them?
Josh Smith left an annotation (16 October 2008)
Page eight of "Hints for Practitioners handling FOI/EIR requests" says:
"Requests which are not for recorded information, but instead ask questions, such as “please explain your policy on x” or “please explain your decision to do y” are not requests for recorded information and therefore should be treated as routine correspondence."
http://www.ico.gov.uk/upload/documents/l...
So it would seem that BERR are entitled to simply ignore your questions as they did.
BERR are, however, required under the FOI Act to provide advice and assistance to you. Maybe it would be worth responding to Mr Balchin asking that he assist you in rephrasing your questions so they become a valid request?
From: I Cooper
17 October 2008
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
P Seurre left an annotation (20 October 2008)
It's been three days since the request for an internal review has been made, but no acknowlegement has been sent back. Has anybody at BERR actually bothered to read the reply?
From: I Cooper
29 October 2008
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
From: Balchin Patrick (BR2)
29 October 2008
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]
show quoted sections
Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.
From: Balchin Patrick (BR2)
30 October 2008
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
show quoted sections
Paul Hancocks left an annotation ( 9 December 2008)
Hello, I'm just wondering how long a review is likely to take. Because of the awful actions of BT PLC in their interception of their customer's private email and internet communications in 2006 and 2007 (which the police and Government seem happy to ignore so far) there are many many people in this country who want to know what our Government is actually saying in response to the European Union's justifiably challenging questions. And we'd like to know now because we see that there are already laws in this country to protect privacy but they appear not to be being enforced. The idea that the questions or answers are to be kept secret because they involve discussion of policy is bunkum; we should have one policy which does not alter and that is that we enforce the existing laws of the land here in Britain.
From: I Cooper
17 December 2008
Dear Patrick Balchin (BR2),
Two calendar months have now passed since the 17th of October, the
date I requested an internal review.
I would appreciate knowing when the review will be completed and
why, if possible, more time is needed to complete the review than
the Information Commissioner deems to be "reasonable".
The ICO considers that "reasonable" should be taken to
mean a target of 20 working days and an absolute limit of 40.
Yours sincerely,
I Cooper
From: Balchin Patrick (BR2)
18 December 2008
Dear Mr Cooper
Thank you for your e-mail.
Your internal review is being dealt with.
It is our intention to complete the review in a proper timely manner.
It is important that the review considers all the exemptions that were
applied to arrive at the original decision.
Under the rules of the internal review we are required to re-examine the
reasons that were given for non-disclosure of information which has been
requested. We are not permitted to merely assume that the reasons which
were given at the time of the original request are still applicable to
the information.
As your case made use of the exemption allowed under Section 27 -
International relations, we have returned to the European Commission
and asked them to re-examine their reasoning as to whether disclosure
would materially harm the relationship between the UK and the EC.
We are still to receive their reply. Once we have their reply we will
be able to complete the review and pass the decision on to you.
Yours sincerely
Patrick Balchin
show quoted sections
Steve Hankin left an annotation (19 December 2008)
When Patrick says: As your case made use of the exemption allowed under Section 27 - International relations, we have returned to the European Commission and asked them to re-examine their reasoning as to whether disclosure would materially harm the relationship between the UK and the EC.
It would have been nice to know how long ago this request was sent to the EC. Was it yesterday? Was it a month or two months ago? I don't think we should need to be requesting that kind of detail under another FOI request, it should be automatic and forthcoming.
Patrick if you read these annotations, can I ask you to provide this detail or does it require a separate FOI request?
Mr/Ms I Cooper: Suggest you request that information in any case just for clarity.
From: Balchin Patrick (BR2)
23 January 2009
Dear Mr Cooper
The internal review that you requested has now been completed. Please
see the attached letter.
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]
show quoted sections
Alex Skene left an annotation (23 January 2009)
I've OCR'ed the text - pasted below:
======================================
Department for Business Enterprise & Regulatory Reform
BERR Ref 01.04.05.3877c
15 January 2009
Dear Mr Cooper
Freedom of Information request 08/0619
I refer to your request of 17 October 2008 under the Freedom of information Act 2000 for an internal review of the Department's decision to withhold some information you requested in your original letter of 17 September 2008 to which we replied on 15 October 2008.
Your request has been the subject of an internal review process. In carrying out the review, we have carefully looked again the material held by this Department and failing within the scope of your request. In particular we have considered and fully reviewed the material which was withheld on the basis of the exemptions in section 27 and 35 of the Freedom of Information Act 2000. As a result of that review process, the Department is satisfied that these exemptions were applied correctly, and that in each case the public interest in maintaining those exemptions outweighs that in disclosing the information to you.
The Department considers that disclosure of the letter sent by BERR to the Commission, regarding the use of Phorm and its legality would result in a detrimental effect on relations between the United Kingdom and the European Commission for the reasons explained in Patrick Balchin's reply of 16 October.
We consider that in the present case, premature and unilateral disclosure of correspondence by the UK could affect the free and frank exchange of views between the UK and the Commission and potentially hinder the ability of the United Kingdom to freely discuss and negotiate in this area in the future. The guidance provided by the Ministry of Justice makes this clear (see http://www.justice.gov.uk/docs/foi-exemp.... Annex A).
As part of the internal review, 1 have paid particular attention to the application of Section 27(1)(b).
As you are aware, Sections 27 and 35 are a qualified exemptions and that a public interest test must be applied before any decision is taken to release or withhold any information
There is a clear public interest in enabling the public to be aware of the working of government, BERR and of the European Commission. Disclosure could enhance the public's knowledge of the powers held by these institutions to intervene of behalf of consumers and its willingness to use those powers. However there is also a clear interest to the public that any negotiations between member states and the Commission can be undertaken in the clear understanding that a free and frank discussion of the issues and exchange of views can be achieved.
However, and as explained above, the Department is satisfied with the way in which the public interest test has been applied to your request, which resulted in the decision not to disclose.
The Freedom of Information Act allows public authorities to regard questions that are not for recorded information to be dealt with as routine correspondence, and that is the case here. I am satisfied that the letter of 16 October 2008 answers your questions fully and appropriately Further guidance on this matters is available in the publication "Freedom of Information and environmental Information Regulations - Hints for Practionners handling Fol/EIR requests" produced by the Information Commissioner's Office.
====
What is an Information request?
It is very important to draw a distinction between requests and routine correspondence Requests for information that can be provided without any question - such as recruitment brochures, leaflets, press releases and the text of public speeches - should be treated as business as usual Requests which are not for recorded information, but instead ask questions, such as "please explain your policy on x" or "please explain your decision to do y"are not requests for recorded information and therefore should be treated as routine correspondence. Public authorities will need to decide for themselves if they wish to record these requests
===
http:///www.ico.gov.uk/uploaddocuments/l...
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at
Information Commissioner's Office
Wychffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Yours sincerely
Mark Gibson
Director General, Enterprise and Business Group
Paul left an annotation (10 February 2009)
Is it possible to seek access to letter through the EU's public register of documents system?
Things to do with this request
- Add an annotation (to help the requester or others)
- Download a zip file of all correspondence
Francis Irving left an annotation (22 September 2008)
Link to this