Reference: FS50544470

Freedom of Information Act 2000 (FOIA)

Decision notice

Date: 3 March 2015

Public Authority: Home Office

Address: 2 Marsham Street
London
SW1P 4DF

Decision (including any steps ordered)

1. The complainant requested a copy of a notice that he believed had been

served upon the telecommunications service provider Talktalk requiring
it to retain communications data. The Home Office refused to confirm or
deny whether it held this information and cited the exemptions provided
by the following sections of the FOIA:

24(2) (national security)

31(3) (prejudice to law enforcement)

43(3) (prejudice to commercial interests)

2. The Commissioner’s decision is that the Home Office applied section

24(2) correctly and so it was not obliged to confirm or deny whether it
held the requested information.

Background

3. The request refers to the power of the Home Secretary to require a

public telecommunications operator to retain communications data
where it is necessary and proportionate to do so under one or more of
the purposes listed in section 22(2) of the Regulation of Investigatory
Powers Act 2000. Amongst these purposes is the interests of national
security.

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Request and response

4. On 15 May 2014, the complainant wrote to the Home Office and

requested information in the following terms:

"Please provide me with a copy of the Notice of Commencement under

section 10 of the [Data Retention Regulations 2014] issued to the
internet service provider Talktalk."

5. The Home Office responded on 12 June 2014. It refused to confirm or

deny whether it held the requested information and cited the
exemptions provided by the following sections of the FOIA:

24(2) (national security)

31(3) (prejudice to law enforcement)

43(3) (prejudice to commercial interests)

6. The complainant responded on the same date and requested an internal

review. The Home Office responded with the outcome of the internal
review on 23 July 2014. The refusal to confirm or deny was upheld on
the same grounds as cited previously.

Scope of the case

7. Following the completion of the internal review, the complainant

contacted the Commissioner on 8 September 2014 to complain about
the refusal of his information request. The complainant indicated that he
did not agree with the exemptions cited by the Home Office.

Reasons for decision

Section 24(2)

8. Section 24(2) provides an exemption from the duty to confirm or deny

where this is required for the purpose of safeguarding national security.
The approach that the Commissioner takes to the term “required” as it
is used in this exemption is that this means “reasonably necessary”.
Therefore, section 24(2) is engaged if exemption from the duty to
confirm or deny is reasonably necessary for the purpose of safeguarding
national security.

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9. This exemption is qualified by the public interest. This means that if the
public interest in the maintenance of the exemption does not outweigh
the public interest in disclosure, the information must be disclosed.

10. Covering first whether this exemption is engaged, the argument of the
Home Office concerned obscuring where notices of the type referred to
in the request are used. It argued that a consistent neither confirm nor
deny response was necessary for requests on this subject in order to
avoid a picture emerging through responses to a number of requests.

11. The Home Office considered that if, for example, a similar request to
that above was made about a particular service provider and it
responded denying that information was held, a subsequent neither
confirm nor deny response about a different service provider would be
an indication that information was held. It believed that consistently
refusing to confirm or deny whether information on this subject matter
was held was necessary in order to avoid that result.

12. The Commissioner agrees with the basis of the Home Office argument.
An inconsistent approach across a number of requests could lead to a
picture emerging of whether information is held. As to whether that
argument is relevant to section 24(2), the Commissioner notes that the
subject matter of the request is within the arena of national security.
One of the purposes for which a notice of the type referred to in the
request can be issued is where this is in the interests of national
security.

13. He also agrees that enabling a picture to emerge of where these notices
have been issued could be harmful to national security by enabling
those involved in attempts to harm national security to use service
providers that have not been issued with a notice. As a result, the
Commissioner accepts that disclosure from the duty to confirm or deny
is reasonably necessary in this case for the purpose of safeguarding
national security. The exemption provided by section 24(2) is, therefore,
engaged.

14. Having found that the exemption is engaged, the next step is to
consider the balance of the public interest. In forming a conclusion on
the balance of the public interest in this case, the Commissioner has
taken into account the considerable public interest inherent in the
maintenance of the exemption, as well as the specific factors that apply
due to the subject matter of the information request.

15. Covering first factors in favour of confirmation or denial, the issue of

telecommunications suppliers being legally obliged to retain
communications data so that this may be available to the authorities has
been a matter of controversy. Many people believe that the powers

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granted to the authorities in this area are disproportionate and in

contravention of civil liberties. Given this background there is a public
interest in confirmation or denial in order to add to public knowledge on
how the law in this area is operating in practice.

16. The Commissioner has carried out brief desk-top research on the issue
of whether there was any particular controversy in relation to retention
of data by the service provider Talktalk. No evidence of this was found.

17. Turning to the public interest in the maintenance of the exemption, in

any situation where section 24(2) is found to be engaged, the
Commissioner must recognise the public interest inherent in this
exemption. Safeguarding of national security is a matter of the most
fundamental public interest; its weight can be matched only where there
are also fundamental public interests in favour of confirmation or denial
as to whether the particular information requested is held by the public
authority.

18. In this case, the Commissioner has recognised the valid public interest
in favour of confirmation or denial arising from the subject matter of this
information request. However, he considers it clear that this does not
equal the weight of the public interest in safeguarding national security.
His conclusion is, therefore, that in all the circumstances the public
interest in the maintenance of the exemption outweighs the public
interest in disclosure. The Home Office was not, therefore, obliged to
confirm or deny whether it held the information requested by the
complainant.

19. Having reached this conclusion it has not been necessary to go on to

also consider sections 31(3) or 43(3).

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Right of appeal

20. Either party has the right to appeal against this decision notice to the
First-tier Tribunal (Information Rights). Information about the appeals
process may be obtained from:

First-tier Tribunal (Information Rights)

GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ

Tel: 0300 1234504

Fax: 0870 739 5836
Email: [email protected]
Website: http://www.justice.gov.uk/tribunals/general-regulatory-
chamber

21. If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website.

22. Any Notice of Appeal should be served on the Tribunal within 28

(calendar) days of the date on which this decision notice is sent.

Signed ………………………………………………

Graham Smith
Deputy Commissioner
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF