All incoming and outgoing messages from the Treasury smart phone which was supplied to Amyas Morse

The request was refused by HM Treasury.

Dear Her Majesty's Treasury,

On 10 September 2019 at 13:18, an unnamed official in HM Treasury sent an email to Amyas Morse. The email contained the following sentence:

"We have been able to set you up on HMT IT so that you will have an email address and a Treasury laptop and smart phone when you come in on Thursday which you will be able to take away with you."

Amyas Morse confirmed by email at 14:30 on the same day that he would be at HM Treasury at 10am on (Thursday) 12 September 2019.

Please provide all incoming (received) and outgoing (sent) messages of any type or format, from the Treasury smart phone which was supplied to Amyas Morse, from the date he collected the phone to the date it was returned to the Treasury.

Yours faithfully,

F Thompson

FOI Requests, HM Treasury

Our ref: FOI2021/15856

Dear F Thompson,

Thank you for your request for information which we are considering under
the terms of the Freedom of Information Act 2000.

This is to confirm receipt of your request and to let you know that it is
receiving attention. If you have any enquiries regarding your request do
not hesitate to contact us.

Please note: HM Treasury has a dedicated email address for the public to
make Freedom of Information requests: [email address]

Yours sincerely

Information Rights Unit | Correspondence and Information Rights | HM
Treasury, 1 Horse Guards Road, London, SW1A 2HQ [1]www.gov.uk/hm-treasury

Correspondence and Information Rights | HM Treasury, 1 Horse Guards Road,
London, SW1A 2HQ [2]www.gov.uk/hm-treasury

References

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2. http://www.gov.uk/hm-treasury

FOI Requests, HM Treasury

1 Attachment

Dear F Thompson

Please find attached a response to your recent FOI request.

Kind regards

Information Rights Unit

| HM Treasury | Ground Orange | 1 Horse Guards Road, SW1A 2HQ |
[1]www.gov.uk/hm-treasury

References

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1. http://www.gov.uk/hm-treasury

Dear Her Majesty's Treasury,

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

I am writing to request an internal review of Her Majesty's Treasury's handling of my FOI request 'All incoming and outgoing messages from the Treasury smart phone which was supplied to Amyas Morse', as I do not accept your claim that HM Treasury does not hold information within the scope of this request.

You state in your response that 'the information requested was produced by Lord Amyas Morse in his capacity leading the Independent Loan Charge Review (the Review) and not the Treasury. Further, and as stated in the Independent Loan Charge Review (D15, page 71): “All evidence received by the Review will be destroyed at its conclusion and those that provided evidence were informed of this at the time.” The information requested would have been destroyed as part of this process'.

My request asked you to provide all incoming (received) and outgoing (sent) messages of any type or format, from the TREASURY smart phone which was supplied to Amyas Morse, from the date he collected the phone to the date it was returned to the TREASURY.

It is therefore clear that the messages (of any type) on this phone would not only contain information PRODUCED by Lord Morse (as you have referenced), but also information RECEIVED by Lord Morse. It is also clear that, following his appointment as Reviewer by the Chancellor, he was conducting government business. I need not remind you that the supply of any information requested under the Freedom of Information Act is medium-agnostic - meaning in effect that as long as these messages (of any type) were sent and/or received in relation to his work as Reviewer, they REMAIN government business - and are therefore covered by the Act. The Treasury supplied this smart phone (alongside the email address and Treasury laptop, as already admitted in the previously referenced email) and these are therefore subject to disclosure via the Freedom of Information Act - as is ANY government or public authority-related business.

Your inclusion of the statement 'all evidence received by the Review will be destroyed at its conclusion and those that provided evidence were informed of this at the time' is both disingenuous and misleading. Firstly, there was categorically no mention within the Review's Terms of Reference published by the government in September 2019 (https://assets.publishing.service.gov.uk...) of any such evidence being destroyed - it contained the scope and objectives, with the timing and recommendations making it clear that the Review will report and provide independent recommendations to the Chancellor of the Exchequer and the Financial Secretary to the Treasury by mid-November. It further states that 'the Reviewer will be appointed by the Chancellor of the Exchequer' - reiterating the fact that this was government business - and that 'they will be supported by a team of officials, drawn from HM Treasury (HMT) and Her Majesty’s Revenue and Customs (HMRC)'. The Treasury themselves - as confirmed by the email dated 10 September 2019 at 13:18 - facilitated Lord Morse's access to HMT IT systems, supplying him with an email address as well as a Treasury laptop and smart phone. It is therefore impossible for you to claim that 'HM Treasury does not hold information within the scope of this request'.

Furthermore, you seem to have deliberately attempted to conflate the reference to section D15, page 71 of the Review itself with my own request, when there is actually no relevance or connection whatsoever. The Review content makes it unequivocally clear that the 'evidence' in question relates to that which was submitted to the Review team prior to and during the period it took place, as follows:

D.10 To ensure the widest range of evidence was available and that THE PUBLIC were able to share their personal views, a request for information was published on 17th September 2019.
D.11 The request was published on gov.uk and shared by others such as LITRG and Contractor UK. The request invited submissions via email by 30th September 2019.
D.12 Over 700 personal testimonies, provided via email and through the LCAG, were reviewed alongside submissions from 37 tax and legal experts.
D.13 The Review considers the confidentiality of taxpayers to be of the upmost importance and took steps to ensure this was preserved:
• HMRC did not provide any information with which the Review could identify individual taxpayers
• no evidence received by the Review was shared with HMRC or HMT
• no information which would be used to identify individual taxpayers was shared with HMRC or HMT
D.14 HMRC offered the Review the opportunity to corroborate evidence received from taxpayers against information they hold. The Review decided not to accept this offer to preserve the confidentiality of those who provided information.
D.15 All evidence received by the Review will be destroyed at its conclusion and those that provided evidence were informed of this at the time.

This leaves no doubt that the submission of 'evidence' received by the review (up to the specified date of 30th September 2019) via EMAIL was the 'evidence' which would be destroyed at its conclusion - and NOT the evidence pertaining to the government business carried out by Lord Morse and duly retained by HM Treasury. This was further validated and confirmed by the subsequent release and disclosure of a large number of emails and attachments as part of FOI2020/00559 - which HM Treasury were obliged to disclose under the Freedom of Information legislation - and which offers irrefutable proof that HM Treasury DO hold this recorded information (in any format, which will include ALL messages, of any type and on any device) as the business of government demands. All messages on any government-supplied device would also have been recorded centrally and by the very act of using such a device, these communications must exclusively relate to the subject (and scope) of government business.

It is an example of significant note that the above requirement for the retention of this type of information was publicly demonstrated by another recent FOI disclosure from HM Treasury - as detailed in FOI2021/12494. Emails and text messages illustrating communication exchanges detailing government business and held by HM Treasury were revealed, which it is patently clear were taken from HM Treasury devices. For the avoidance of any doubt on this matter, all exchanges and correspondence in my own request should be taken to include electronic messages, including WhatsApp, email, text messages or any other forms of written communication.

The Information Commissioner's Office guidance is not open to the slightest misinterpretation on this matter, stating:
"The definition of information under FOIA is provided at section 84 and states that 'information' means information recorded in any form. Therefore, official information recorded on mobile devices, including text messages on mobile phones, or in any other media, may also be considered to be held on behalf of the public authority in the circumstances outlined in this guidance".

It further states, under the section headed 'Concealment and deletion':
"Public authorities should also remind staff that deleting or concealing information with the intention of preventing its disclosure following receipt of a request is a criminal offence under section 77 of FOIA. For example, where information that is covered by a request is knowingly treated as not held because it is held in a private email account, this may count as concealment intended to prevent the disclosure of information, with the person concealing the information being liable to prosecution".

In closing, I now request that you cease obstructing the public's rightful access to this information and disclose all incoming (received) and outgoing (sent) messages of any type or format, from the Treasury smart phone which was supplied to Amyas Morse, from the date he collected the phone to the date it was returned to the Treasury, as clearly outlined in the original submission.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/a...

Yours faithfully,

F Thompson

FOI Requests, HM Treasury

Dear F Thompson

Thank you for your email regarding your request for an internal review.  

I can confirm that your review request was received on 1 September 2021
and is receiving attention under our reference IR2021/20921. 

There is no statutory deadline for responding to internal review
requests.  

However, in line with the Information Commissioner’s guidelines and the
2018 FOI Code of Practice, we aim to complete  internal reviews within 20
working days.  

Yours sincerely 
 
Information Rights Unit | Correspondence and Information Rights | HM
Treasury, 1 Horse Guards Road, London, SW1A 2HQ  
[1]www.gov.uk/hm-treasury 

This email and any files transmitted with it are intended solely for the
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References

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FOI Requests, HM Treasury

1 Attachment

Dear F Thompson

Please find attached a response to your recent IR request.

Kind regards

Information Rights Unit

| HM Treasury | Ground Orange | 1 Horse Guards Road, SW1A 2HQ |
[1]www.gov.uk/hm-treasury

References

Visible links
1. http://www.gov.uk/hm-treasury

Dear FOI Requests,

Thank you for your response.

I remain unpersuaded that HM Treasury does not hold information within the scope of this request and, based on this refusal, consider that you are deliberately attempting to delete or conceal information with the intention of preventing its disclosure, which is a criminal offence under section 77 of the FOIA.

Lord Morse, following his appointment as Reviewer by the Chancellor, was conducting government business. As has already been evidenced, HM Treasury supplied Lord Morse with the equipment (including the smartphone) to perform that government business.

As published on https://www.gov.uk/government/ministers/..., the Chancellor has overall responsibility for the work of the Treasury. There are no grounds which would support any view that this was not government business, facilitated and supported by the Treasury as the Terms of Reference clearly indicate - "The Review will report and provide independent recommendations to the Chancellor of the Exchequer and the Financial Secretary to the Treasury by mid-November". "They will be supported by a team of officials, drawn from HM Treasury (HMT) and Her Majesty’s Revenue and Customs (HMRC). The number of people working on the Review, and the amount of their time spent, will be agreed between the Director of Personal Tax, HM Treasury, and the Reviewer prior to the start of the Review".

Cabinet Office guidance stipulates that "There is a wide range of communication tools both formal and informal. This guidance principally deals with emails but it applies equally to other forms of communications and records which deal with departmental business". Further - "if it was intended that the department would use or act on the information in the course of conducting its business that may well point to the information being government information".

Government information which is now being withheld, contrary to the purpose and intention of the FOIA.

You have chosen not to make any comment on my challenge to your prior reference to section D15, page 71 of the Review itself, when there is actually no relevance or connection whatsoever with your claims. The Review content makes it unequivocally clear that the 'evidence' in question which was to be destroyed relates to that which was submitted to the Review team prior to and during the period it took place - BY MEMBERS OF THE PUBLIC. Hence, all other evidence will have been retained, as has been proven by the disclosures in other, separate FOI requests for related information held by HM Treasury.

I reiterate these comments once again - "The definition of information under FOIA is provided at section 84 and states that 'information' means information recorded in any form. Therefore, official information recorded on mobile devices, including text messages on mobile phones, or in any other media, may also be considered to be held on behalf of the public authority in the circumstances outlined in this guidance".

Whilst you provide no actual proof or evidence of your unsubstantiated claim that "information stored on these devices was then destroyed on completion of the review", it perhaps remains immaterial to this request. Data recovery applications can be used to retrieve messages from any smartphone and those messages will also have been recorded centrally on the network provider's database. What will also be evident is that the network provider of the government-issued device which was used by Lord Morse during the course of his review will have servers with archived data records of all messages sent and received on that device. These messages are held 'on behalf of the public authority' and constitute information which is subject to FOI legislation in the same way as any other information held by the authority.

Your deliberate attempts to delete or conceal this information with the intention of preventing its disclosure, contrary to section 77 of the FOIA, will now be immediately escalated to the Information Commissioner's Office.

Yours sincerely,

F Thompson