Uncensored version of "'Site Blocking' to reduce online copyright infringement

TJ McIntyre made this Freedom of Information request to Office of Communications

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was successful.

Dear Office of Communications,

In accordance with the Freedom of Information Act 2000 please now furnish an unredacted version of your report "Site Blocking" to reduce online copyright infringement - A review of sections 17 and 18 of the Digital Economy Act.

Yours faithfully,

TJ McIntyre

Julia Snape, Office of Communications

1 Attachment

Dear Mr McIntyre

Please find attached a response to your request for information.

Kind regards

Julia

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Dear Ofcom,

I am writing to request an internal review of the handling of my FOI request for an uncensored version of the document 'Site Blocking' to reduce online copyright infringement.

As you are aware, due to the inadequate redaction of that document the entire text is now widely available online, making any claim to confidentiality in its contents absurd.

In some circumstances this might make it unnecessary to pursue this request further. However, in the context of both academic research and policy formation it is important to be able to refer to original documents and to enable others to independently verify their contents. This is particularly so in the current case. These redactions do nothing to ensure confidentiality - but do, however, make it harder for bodies concerned about the impact of such measures to reference an authoritative report into the specific merits of each blocking regime.

Turning to the specifics of your refusal, I note first that you have abandoned the original basis put forward for redaction, i.e. that there was a "low risk" of this information being useful to people wanting to bypass the IWF blocking system. While I welcome this belated acknowledgement that this was not a proper basis for withholding information, it nevertheless raises the question why it was considered appropriate to rely on this point in the first place. Also, more significantly, this about-face as to the reason for withholding information suggests that the current reliance on the section 36 exemption is merely a post-hoc rationalisation.

Your reliance on section 36 is based on a chilling effect argument. Having had the benefit of reading the redacted material, all of which is purely technical and factual, I find this rather a surprising argument to make. The publicly available portion of the report states amongst other things that "For all blocking methods circumvention by site operators and internet users is technically possible and would be relatively straightforward by determined users" (p.5). Given this blunt statement, it is impossible to see how revelation of the well-known technical details underpinning this result could be said to have a chilling effect. Again, I note that this argument was not advanced when the report was originally redacted.

I also note that your expansive interpretation of section 36 is not supported by either the ICO or the decisions of the Information Tribunal. The ICO has made it clear that the section 36(2)(b) exemption "include[s] expressions of opinion and recommendations but will not include purely factual material or background information." (Awareness Guidance 25, p.5) As you are aware, the redacted material in this case is entirely factual in nature. Similarly, your reliance on section 36(2)(c) contradicts the guidance of the ICO, who has stated that this exemption is intended for "rare situations" and "would only be available in cases where the disclosure would prejudice the public authority’s ability to offer an effective public service". (Awareness Guidance 25, p.6)

It is also clear that your chilling effect argument is a general one - it does not rely on any particular harm to be caused by the release of this particular information. (Nor could it, given that the information has already been released by you.) Instead the argument relies on an argument of a more general lack of candour going forward. In this regard I refer to the ICO guidance in LTT130, where it is noted that:

"It should be borne in mind that the Tribunal has given little weight to general arguments about wide ranging “chilling effects” that are not specifically related to the information in question. Whilst there may be cases where the Commissioner would accept that a wider “chilling effect” would occur, such arguments should not be accepted as general ‘arguments of principle’ and a public authority would need to make a convincing case as to why disclosure of the information in question would have this wider effect."

Finally, I must point out the simple absurdity of the redactions. To take just two examples, it is clear that no reasonable decision maker could consider it appropriate to withhold the following:

"Anonymous Web Proxy - Service that allows users to place web requests via an intermediary server. The proxy server makes the connection on behalf of the user thereby hiding originating IP address and bypassing blocking network techniques."

"The Onion Router (ToR) - Anonymity network originally developed by the United States Navy. Used in many countries to bypass state censorship." (Both from Annex 1)

The claim that providing this information could prejudice the effective conduct of public affairs is implausible on its face. If maintained, it can only be expected to undermine any future attempts by Ofcom to rely on exemptions under the FOI.

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

Yours faithfully,

TJ McIntyre

Information Requests, Office of Communications

1 Attachment

Dear Mr McIntyre

Please see the attached correspondence.

Yours sincerely

Jonathan Ayres

:: Jonathan Ayres
Compliance Manager
020 7981 3854
[email address]

:: Ofcom
Riverside House
2a Southwark Bridge Road
London SE1 9HA
020 7981 3000
www.ofcom.org.uk

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Dear Mr Ayres

As you know, the Information Commissioner has stated that a reasonable time for completing an internal review is 20 working days from the request for review. In relation to longer periods, the Commissioner has stated that:

"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."

As I haven't received any such notification, I take it that you don't consider this to be an exceptional case and I would be obliged if you could now inform me when I can expect to receive a decision.

Yours sincerely,

TJ McIntyre

Jonathan Pillinger, Office of Communications

Mr McIntyre

I am handling the internal review of our decision regarding your FOI request. Apologies for not getting back to you sooner. I am considering your case at the moment at hope to get back to you soon with a decision.

Kind Regards

Jonathan

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Jonathan Pillinger, Office of Communications

1 Attachment

Dear Mr McIntyre

Freedom of Information: Internal Review of case 1-185091529

Thank you for your request for an internal review of our decision not to
release an unredacted version of the report 'Site blocking to reduce
online copyright infringement  information - A review of sections 17 and18
of the Digital Economy Act’.   We received your request for an internal
review on 26 August 2011.  First of all let me apologise for the time it
has taken to review our initial decision.  I have now reviewed all the
documents relating to the case and the basis for our original decision and
have reached a decision.

 

Our original decision was to withhold the information redacted from the
document above on the basis that its release would likely prejudice the
conduct of public affairs, thus being exempt from disclosure under Section
36 of the Freedom of Information Act.  The public interest test that
applies to this exemption was considered by Graham Howell as a ‘qualified
person’ and he concluded that it was not in the public interest to release
the information for the reasons set out in our original response.

 

Having reviewed all the information and correspondence relating to this
case my decision is as follows: the release of the aforementioned document
will not significantly prejudice the conduct of public affairs and as a
result the public interest test does not need to be enacted.   You mention
in your request for an internal review that all the information you have
requested already exists in the public sphere either as part of unredacted
copies of the report or in other documents related to site blocking.  This
was also a contributory factor in me reaching my decision.  As a result we
are releasing the document unredacted, a copy of which is attached.

 

If you have any queries about this letter, please contact me. Please
remember to quote the reference number above in any future communications.

 

Yours sincerely,

 

 

Jonathan

 

 

If you are not content with the outcome of this 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

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

 

 :: Jonathan Pillinger

   Compliance Manager 

   Content, International and Regulatory Development

   Direct Line: 020 7981 3876

   [1][email address]

 

:: Ofcom

   Riverside House

   2a Southwark Bridge Road

   London SE1 9HA

   020 7981 3000

   [2]www.ofcom.org.uk

 

 

 

 :: Jonathan Pillinger

   Compliance Manager 

   Content, International and Regulatory Development

   Direct Line: 020 7981 3876

   [3][email address]

 

:: Ofcom

   Riverside House

   2a Southwark Bridge Road

   London SE1 9HA

   020 7981 3000

   [4]www.ofcom.org.uk

 

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