Examination of Witnesses (Questions 27
- 39)
TUESDAY 6 MARCH 2007
MR RICHARD
THOMAS AND
MR MICK
GORRILL
Q27 Chairman: I would like to welcome
Richard Thomas, the Information Commissioner and Mick Gorrill,
the Head of the Regulatory Action Division. It was Mr Thomas's
report What price privacy now? which, at least in part,
sparked this inquiry. I would also like to thank you, since I
gather you are also giving evidence to another committee this
afternoon.
Mr Thomas: It has been postponed
for two weeks, Chairman.
Chairman: Good. I will ask Rosemary McKenna
to start.
Q28 Rosemary McKenna: Good morning,
gentlemen. According to your report, you found evidence of systematic
breaches of personal privacy that amount to an unlawful trade
in confidential personal information. Would you say that practice
is widespread?
Mr Thomas: Yes, I would. It has
been the law since 1994 that it is a criminal offence to obtain
confidential personal information without consent. This is not
part of the European directive on data protection; it is a self-contained
part of the data protection legislation. Over the years we have
investigated allegations where this has taken place and we have
in place now memoranda of understanding with such organisations
as the Department of Work and Pensions, British Telecom and others
which hold large volumes of personal data. Over the years we have
investigated and we have brought prosecutions. Many of these have
resulted in very low penalties. One reason we wrote the report
in May of last year was to bring public attention to the nature
and the extent of this trade. A particular case which has attracted
a great deal of attention, not least in relation to the media,
is what we called the Motorman Operation. That was a very extensive
investigation which was so big that it was handed over to the
Crown Prosecution Service because there were corruption aspects
there. The information is obtained in two main ways. One is "blagging",
where private investigators either impersonate the individual
or they impersonate an employee of the organisation (DWP, British
Telecom or whatever); the other is old fashioned payment: payment
to junior staff for the disclosure of personal information. Those
cases came to the Crown Court in 2005. I do not disguise from
anybody my severe frustration that the result was no more than
a conditional discharge for the private investigators concerned.
It has been the law since 1994 but I came to the view that this
was not being taken seriously enough and needed to have a higher
profile. I am arguing for a range of measures, including increasing
the penalties, and arguing—which the Government has now
accepted in principle—that there should be a prison sentence
there as a deterrent. I am also bringing to the attention of a
wide range of organisations, not just in the media world but in
the financial services industry, the legal world and even local
authorities, who are the ultimate customers of this sort of trade,
that this is a very extensive trade and that measures needed to
be taken, both legal and, if you like, self-regulatory, to put
a stop to it. I find it wholly unacceptable. I think the view
I have is shared by very many people, not least over 60 organisations
that have now responded to the Department of Constitutional Affairs'
consultation paper, and the vast majority are supportive of taking
a tougher line against this activity.
Q29 Rosemary McKenna: Do you think
there is evidence to give real grounds for thinking that much
of the illegal trade in data never comes to light?
Mr Thomas: It is always difficult.
We can only really investigate where we have some sort of tip-off
or where a complaint is made. I mentioned the protocols we have
for the various organisations. They would invite us in when they
had suspicions. Although the Motorman Inquiry was the one which
attracted most attention, we have carried out a number of other
investigations since that report was published which brought other
cases to court. They are documented in our December report. We
have three or four cases now in the pipeline, another case coming
to court next month, and others coming later this year. It is
a pernicious trade; so extensive that we were able in our first
report to publish the tariff for virtually any person in this
room today. It would cost between £150 to £200 to find
out the owner of the car parked outside your house last night.
It would cost between £65 and £75 to get hold of your
ex-directory phone number. It would cost £750 to get hold
of your call records, the mobile phone or the fixed line record
of whom you have called over a fixed period of time. It would
cost £500 to get details of your criminal records. I found
this quite outrageous. That is why I have put this into this report,
bringing it to public attention.
Q30 Rosemary McKenna: There is a
widespread belief among people in the public eye that there are
journalists and detectives out there trawling through the backgrounds
of families and family members. Is that illegal?
Mr Thomas: It is illegal if you
obtain the personal data from a so-called data controller (an
organisation which holds the information) without their consent,
unless one of the defences applies. We will come on later to talk
about the public interest defence. It is also a defence if you
are doing it for the purpose of detecting or preventing crime.
So there are a number of defences but it is a clear illegal, criminal
matter—and it has been for many years now—to do this
where you are obtaining information from a data controller (an
organisation holding information). Of course, many organisations
now, on databases and otherwise, hold vast amounts of personal
information about all of us.
Q31 Rosemary McKenna: But it is not
illegal to get information from private individuals.
Mr Thomas: It would not be an
offence under the Data Protection Act to go into your dustbin,
as it were, and go through your personal dustbin.
Q32 Rosemary McKenna: But public
interest in that is—
Mr Thomas: I can only speak in
my role as Information Commissioner responsible for the Data Protection
Act and the Freedom of Information Act. My personal view is that
trawling through dustbins is equally unacceptable but it does
not form part of the existing law.
Q33 Paul Farrelly: I read some of
the names who were involved in paying this private detective and
thought, "Some of them have never broken a decent investigative
story in their lives." They got caught with their fingers
in the cookie jar; they just realised that it was possible to
get this sort of information. I have never paid for a story but
I have traded information. I will do a favour for a favour and
I do not ask where I got the telephone number from or the bank
records from and neither does my libel lawyer. I have one of my
old libel lawyers, Louise Hayman, in the audience here. They do
not ask either; they want to know whether it is true or not. We
have some of the fiercest libel laws in the country. If I did
not ask the question where you got that number or that bank account
and those details, when pursuing people who are money laundering
or serious crooks, and you said to me, "You shouldn't do
that," I would say you were being prissy.
Mr Thomas: With respect, Mr Farrelly,
I am not sure it is prissy to break very clear criminal law. If
you had got hold of my bank records, I would say, "How did
you get those? You must have known they were confidential."
Q34 Paul Farrelly: But I would not
go for yours.
Mr Thomas: It could be anybody.
Q35 Paul Farrelly: I might go for
Mr Ivanovich, who might have a Chelsea estate from money laundering
into London.
Mr Thomas: If I could give an
indication of the sorts of victims who were uncovered in our various
investigations. A lot has been said, not least to this Committee
in evidence, about public interest. I am frankly very sceptical
about why that is being put forward. We are talking about fishing
for tittle-tattle. We are talking about footballers and football
managers, broadcasters, politicians, members of the royal household.
You might argue possibly that some of these raise public interest
issues.
Q36 Paul Farrelly: No, I am not.
I am talking about investigating serious crooks.
Mr Thomas: If it is for the prevention
or detection of crime, you have a cast-iron defence. That is part
of the existing Act already. No one is suggesting any change to
that. But where we come on to the sister of the partner of a local
politician, the secretary of a Member of Parliament, the mother
of a man linked to a Big Brother contestant, the mother
of an aspiring star in the show-business world, these are the
sort of people who are sucked into this web of illegal gathering
of activity and then it is completely ordinary members of the
public. The painter and decorator whose white van was checked
out: we discovered that the private investigator had gone to DVLA
illegally and from a corrupt official there had obtained the ownership
of that white van. Why was he investigated? Because he was painting
the house of a recent lottery winner.
Q37 Paul Farrelly: Suppose Mr Iliich
Ivanovich, to invent a name—and I am subject to privilege
here but I hope there is no one like that out there wearing a
hoodie who is going to shoot me—came to you when I published
a story, the story went through the libel lawyers and he was "bang-to-rights"
for money laundering out of Russia. If he came to you and said,
"This journalist got my number and my bank record unethically"
how would you adjudicate that?
Mr Thomas: We would investigate.
Mick, I am sure, will say a few words in a moment about the process
of investigation. Mick is a former senior officer in the Greater
Manchester Police and essentially we use police methods to investigate.
We have search warrant powers. We gather the evidence. We would
raise this with the perpetrators. In the example you are postulating,
they might start saying "public interest". I want to
make absolutely clear I am a very strong champion of the public
interest. Wearing my freedom of information hat, it is fundamental
to the success of the freedom of information law that there should
be very clear activity in the name of the public interest. Perhaps
I could refer you to the source material which we have published
on what is in the public interest. Under the FOI legislation we
have published seven pages of guidance defining the public interest
but, if I could summarise it, in terms of informing public debate
on key issues—promoting accountability and transparency
for decisions in public spending; tackling fraud corruption and
other crime; promoting probity, competition and value for money;
clarifying incomplete or misleading information; promoting health
and safety. We can recognise public interest when we see it but
I have to tell you that in the cases we are dealing with under
this legislation, where we have gone in and we have investigated
the private detectives, I have not seen a whiff of public interest.
Q38 Paul Farrelly: So it is acceptable
for people like me to break the law to bring someone to book.
Mr Thomas: If you are gathering
information without the consent of your organisation and you can
show that was justified in the public interest, you are not breaking
the law, you have a good defence, and we would not dream of prosecuting,
let alone a court convicting, in a case like that.
Q39 Chairman: Mr Thomas, in your
subsequent report, your follow-up, as a result of a Freedom of
Information request you published a table listing all the various
newspapers and a number of their journalists whose names were
found, I think, in the client list of the people arrested under
Operation Motorman. The press would respond by saying that there
is no evidence that just because they appeared in a client list
they were involved in anything illegal and nothing has been produced
to suggest that. How would you respond?
Mr Thomas: The first thing I would
need to share with this Committee is that the 3,000 or 4,000 transactions
identified in this table came from a total of 13,000 transactions
in this one operation alone. We were careful only to put forward
those where there was some sort of hard evidence of the transaction
being positively identified as involving a journalist for a newspaper.
We put this table together, as you say, in response to an FOI
request and we then published it in our December report, but we
were also at pains to spell out and the paragraph which precedes
the table does say very clearly, that "The Commissioner recognises
that some of these cases may have raised public interest or similar
issues but also notes that no such defences were raised by any
of those interviewed and prosecuted in Operation Motorman."
I would remind you that, although they have ended up only with
a conditional discharge, there were convictions. The detectives
concerned were found guilty of the section 55 offence. They could
have raised a public interest defence; they did not do so. They
were convicted.
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