Notices under regulation 10 of SI 859/2009

Dear Sir or Madam,

Please could you supply me with a list relating to all notices
under regulation 10 of the Data Retention (EC Directive)
Regulations that have been given since 6th April 2009.

Ideally I would like a list in spreadsheet format giving:

1. data the notice was sent
2. identity of the addressee

Yours faithfully,

Francis Davey

Dear Sir or Madam,

I note that the 20 days' long stop for a response to my earlier
Freedom of Information request has now passed. Please could I ask
that you act promptly in responding or at least provide an
explanation as to why you have not done so.

Yours faithfully,

Francis Davey

Dear Sir,

Thank you for your reply.

For the avoidance of doubt: my original request is at least as
concerned with the dates on which notices were sent as the
addressees of those notices. I do not require copies of the notices
under this request.

I am assuming your reply is intended to be one made under section
17(2)(b). That being the case, can I ask for clarification pursuant
to section 17(1)(c) as to why you consider that sections 31 and 43
apply?

The reason I ask is that it is not apparent to me why knowing when
a public telecommunications provider received a notice should
prejudice its interests, or indeed why it should prejudice the
enforcement of law.

I apologise if this is a failing on my part and hope you can
clarify the matter. I had not anticipated this request being in any
way controversial.

Yours faithfully,

Francis Davey

Dear Sir or Madam,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Home Office's
handling of my FOI request 'Notices under regulation 10 of SI
859/2009'.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/no...

My reasons for requesting the review are as follows:

1. On the question of s.31 (law enforcement), the information that
I have requested would not reveal the nature of any particular
criminal investigation or law enforcement activity. Nor do I seek
to know the details of the data retention carried out by public
communications providers - their legal obligations are already a
matter of public record.

The only way in which s.31 could be engaged is if the secretary of
state had failed in his duty to send notices under s.10 to public
communications providers who could then be targeted by criminals in
the knowledge that there would be no general data retention.

That seems to me unlikely, unless there were a serious failure to
comply by the secretary of state. If that were the case, there
would be a very strong public interest in his failure being made
known.

I suggest that the public interest outweighs any prejudice to s.31
interests.

If you do not accept this argument, I invite you to explain clearly
how you think s.31 interests might be engaged and the nature of the
balancing exercise you have carried out. Unless I understand the
reasons for your decision I will have to refer the matter to the
Information Commissioner's Office.

2. Disclosing redacted information

A second ground of review is that you have not disclosed to me
redacted information. I would find it useful to know the dates on
which notices were sent, even without knowing the names of the
addressees. It is inconceivable that knowledge as to when notices
were sent (but not to whom) could prejudice law enforcement or any
commercial interests.

Such redaction would only require the removal of a column from a
spreadsheet which should be technically straightforward.

Failing that, disclosure of the *number* of notices sent to date
would be of some use and would be a further alternative if you are
not prepared to give me the redacted information.

3. Commercial interests (s.41)

I suggest that it is very unlikely that the commercial interests of
any public communications provider could be prejudiced in any
materially significant way. All public communications providers may
be required to carry out data retention, many already do even
without having been notified by the secretary of state. There is
unlikely to be a significant move of customers to unnotified
providers given that notification may occur at any time.

I look forward to hearing your proposed time-scale for the review
and receiving such information as you are able to give me.

Yours faithfully,

Francis Davey

Dear Lister Ian,

I note your previous email gave a target date of 19th November 2009
for a substantive response to my request for an internal review. It
is now 19th December 2009. Please could you explain the reason for
the delay and any progress that has been made.

It seems to me that some of the information I have requested ought
not to be covered by any exception and could be released to me
promptly even if the remainder needed further consideration. I
would be grateful for some information even if it takes longer to
pursue the remainder.

Yours sincerely,

Francis Davey

Your reference: T11995/9

Dear Home Office,

I made a request for information under the Freedom of Information
Act on 13 July 2009. I received a substantive reply, which was a
refusal, on 18 September 2009. I requested an internal review on 24
September 2009.

An Ian Lister of the Information Access Team responded indicating
that he was dealing with the review and that I should correspond
with him. He set a target date for completion of the review of 19
November 2009.

On 19 December 2009 I emailed him asking for a progress update and
received a response suggesting he was out of the office until 30
December 2009.

May I draw your attention to the Freedom of Information Good
Practice Guidance No. 5 issued by the Information Commissioner
which states:

"In view of all the above the Commissioner considers that a
reasonable time for completing an internal review is 20 working
days from the date of the request for review. There may be a small
number of cases which involve exceptional circumstances where it
may be reasonable to take longer. In those circumstances, the
public authority should, as a matter of good practice, notify the
requester and explain why more time is needed.

In our view, in no case should the total time taken exceed 40
working days. In such cases we would expect a public authority to
be able to demonstrate that it had commenced the review procedure
promptly following receipt of the request for review and had
actively worked on the review throughout that period. "

Clearly this matter has exceeded by a wide margin all reasonable
time limits. I am therefore keen to see it expedited rather than
allow further delays while the allocated officer is away.

I look forward to your prompt response.

Yours faithfully,

Francis Davey

Dear Information Access,

Thank you for your clarification. I think it was clear in context
that your last email was not meant to be a substantive response but
it is always helpful to know.

As it happens I now have had the opportunity of reading your draft
response.

It will save unnecessary to-ing and fro-ing if I suggest now that
you should consider the possibility of giving me a reduced set of
information than that which I requested. This is something I raised
in my request for a review and which isn't addressed in the draft.

For example: I now know that some notices have been sent. It would
be useful as part of my studies to know that timescale (eg that 2
notices were sent on a particular date) even without knowing their
contents or the identity of the communications provider.

Also, it would be helpful if your review dealt with the different
public interest considerations concerning the national security and
commercial prejudice questions. Clearly the prevention of (say)
terrorism weighs more strongly than the potential embarrassment of
a number of economic actors for a short period of time (since as I
pointed out everyone will be getting these notices as the minister
is obliged to send them).

That balancing question public interest v interest in maintaining
the exception, is that is at the heart of the FOI Act and as I am
sure you are aware is an important part of properly responding to
an FOI request. I hope that your review properly considers that
balance.

I look forward to hearing from you in due course. While some
information would be useful, I believe that I am entitled to what I
have asked for.

Yours sincerely,

Francis Davey