Examination of Witnesses (Question Numbers
1820-1839)
MR CHRISTOPHER
GRAHAM AND
MR DAVID
CLANCY
2 SEPTEMBER 2009
Q1820 Paul Farrelly: What is new
in the public domain.
Mr Graham: But it is not evidence
of what is going on now. What we have got is more information
in the public domain legitimately or illegitimately of what was
the case in 2006 when What Price Privacy? and What Price
Privacy Now? were published. We have not got any further information
to share with the Committee about journalistic practices now.
Q1821 Paul Farrelly: That is not
my question.
Mr Clancy: I think it is fair
to say in the Taylor case that a number of documents were obtained
by Mr Taylor's representatives which, they believed, would assist
them to evidence the fact that News International were carrying
out, in effect, a new investigation against their client and that
the means that they used potentially were unfair and in breach
of the Data Protection Act. Therefore, I think it is something
we would build in support of evidence and it would not be evidence
in relation to the actual hacking.
Q1822 Paul Farrelly: Can you tell
us in what respects Mr Taylor's name features in the Motorman
files?
Mr Clancy: I cannot exactly name
every piece of information that is in there, but there would have
been obviously references to News International at some point
seeking information in relation to Mr Taylor which would not be
found in the public domain.
Q1823 Paul Farrelly: What sort of
information, from your knowledge?
Mr Clancy: I cannot make a particular
comment in relation to that, but obviously there is a massive
amount of information there in relation to his legal representative
seeking access to that information, and that was done via another
department within our office, it was not the investigations team
who managed that.
Q1824 Paul Farrelly: Did the documents
provide details of accessing the sort of information through means
which would clearly seem to be illegal?
Mr Clancy: I think clearly, if
it was information which was contained within ledgers, it would
be evidence to say, "This is the particular activity of journalists.
They're obtaining information which cannot be obtained normally",
such as vehicle registration details, telephone conversations,
converting their telephone number into an address, ex-directory
numbers.
Mr Graham: What it does not contain
is usually the technique used, though in one or two cases it does
say on the face of the purchase order or the ledger log, "blag",
but it does not say, "hack" or "tap". So we
do not know how this information would have been obtained, except
where it specifically says, "blag", which of course
is just ringing up and pretending to be somebody else.
Q1825 Paul Farrelly: But, just in
respect of the Taylor case, which is one of the reasons why you
are here again, there is evidence within the Motorman files of
potentially illegal activity in relation to getting information
connected, or to do, with Gordon Taylor?
Mr Clancy: Yes.
Q1826 Paul Farrelly: I just wanted
to wrap up and just explore the reasons for not publishing the
Motorman files in the public interest and whether you got this
decision correct. Is it correct that individuals or organisations
that have been targeted can only get that information now when
they are being told by, in this case, a particular assiduous Guardian
journalist? Is it satisfactory that people will only be able to
get access to those records if they are generally determined or
wealthy enough to take out a civil action and get court orders
to instruct you to provide those details? Also, just in terms
of the natural justice, have you considered whether your refusal
to publish those, be it in redacted form, is undermining the process
of press self-regulation? Let me give you an example from the
latest article on Monday. In his article, Nick Davies talks of
a case brought by, I assume it is a lady, Syrita Collins-Plante,
"who complained to the PCC that The Sunday People
had invaded her privacy and harassed her in search of a story
about the boxer, Lennox Lewis, phoning her repeatedly until a
police officer asked the newspaper to stop. The PCC ruled that
her privacy had not been breached—without knowing that her
private address and phone number had been blagged out of BT by
Whittamore's network." Now, in other spheres that would count
as a miscarriage of justice, so have you considered whether your
refusal to publish the data, be it in redacted form or not, is
actually undermining press self-regulation?
Mr Graham: If I published it in
a redacted form, it is of no use to man or beast. You could have
pages and pages of material that you have already got from me,
but it is supremely uninformative, so that does not help us. If
I publish it in a non-redacted form, I am publishing personal
information that the Data Protection Act is there to stop, so
in sort of general terms of publication I am between a rock and
a hard place. I am specifically charged under section 59 of the
Data Protection Act under penalty of a criminal offence, myself
as Information Commissioner, my predecessors and staff, if we
make available information that we collect in the course of our
duties, except for a lawful purpose, so the question then is:
what is a lawful purpose? If you are confronted with a court order,
that is manifestly a lawful purpose. Now, I am not saying everyone
has got to go off and get a court order to have a look at this
stuff. I have already said that we will follow the precedent that
we have established with the consulting database and help people
who may be worried about it. And you mentioned the former Minister,
Mr Kilfoyle; I think I had better contact him and say, "Can
we sort this out?" It does not have to be by court order
if people have good reason to come along. I showed the Chairman
the files the other day.
Q1827 Paul Farrelly: Indeed, and
how does that square with your duties?
Mr Graham: Because it was for
assisting a parliamentary committee and I thought that, once your
Chairman had seen what we were talking about, he would see the
difficulty that I was in. So it would not have to be by court
order. But we are not playing games here. I have statutory responsibilities
to do things and also not to do things. What the Information Commission
has been concerned to do is to flag up the issue, as I have said.
Now, in relation to self-regulation, I have just come from being
Director General of the Advertising Standards Authority, which
of course is a self-regulatory body, so I know about this sort
of thing. I would not presume to tell the PCC what to do, nor
do I know the circumstances of this case, but it is perfectly
open to the PCC to go back to the titles who were defending that
particular charge and say, "We think we've been misled and
we want to have a look at this again" in the same way as
this Committee is doing.
Q1828 Paul Farrelly: But it is making
decisions without the full knowledge of the facts. Can I just
take issue with your assertion, Mr Graham, that a redacted form
would be of no use to man or beast. Can I suggest that what would
be very helpful in the public interest, it would certainly act
as a very strong deterrent and it would allow those people in
the general public, be they the man or woman in the street or
public figures, to know whether they have been targeted and by
whom, if you published the files in the following form: with the
name of the journalist and the newspaper group involved, the kind
of information requested, the person targeted, but not to the
extent that the information is actually in the meticulous files
kept by Mr Whittamore, and not the response to the information.
That would be very helpful in the public interest and certainly
would be very useful. It would mean that anybody bringing a complaint,
for instance, the PCC, would know whether they have been targeted
and the PCC would know it as well, just to take one example.
Mr Graham: I just think that is
not what I am here to do. If I listed the names of all the journalists,
I am in danger of guilt through association. I do not know whether
some of those journalists' enquiries, for example, the head of
the list in the Guardian referred to The Observer, and
I do not know whether The Observer was dealing in the tittle-tattle
and sex life of some popstar or whether it was a major scandal
involving Ministry of Defence contracts, but those names would
be up there with people who were simply dealing with celebrity
gossip, but, having considered this, perhaps I had better go away
and consider it further. At first blush—
Q1829 Paul Farrelly: I used to work
for The Observer.
Mr Graham: And they did tittle-tattle?
Q1831 Paul Farrelly: I imagine The
Observer did not do tittle-tattle and I imagine that the journalists,
to the extent that they are still working for The Observer
or are now working for other news organisations, will have their
public interest defences there.
Mr Graham: Is it not also a gross
invasion of privacy, Mr Farrelly, to list all the subjects of
enquiry? They may not want it placed in the public domain that
they were. It might be, you know, "no smoke without fire",
and we are talking about principals, their wives, their families,
their girlfriends, their friend and family numbers, but this is
just not what the Information Commission is here to do. We are
here to stop the child benefit records going missing, we are here
to help administer the Freedom of Information Act and we are here
to deal with data-sharing between government departments. There
is a lot to do and, if this Committee really wants me to devote
the resources I should be spending on that to an after-the-event,
line-by-line investigation of 17,000 pieces of paper, I think
it is the wrong priority. What I want you to do and Parliament
to do is to activate that section of the Act and introduce the
custodial sentence. That will shut this down at a stroke. David,
you were talking to one of these merchants the other day about
it, were you not?
Mr Clancy: Yes, we speak to private
investigators quite a lot and we have had situations where, when
executing a search warrant, we find information which has been
unlawfully obtained and the individual turns round and says, "Maximum
fine £5,000? I'll write the cheque out now". Alternatively,
at this moment in time a section 55 offence is not a recordable
offence, it does not appear on the PNC, but I had a PI phone me
up the other day to say, "I've been convicted. Does it appear
on the PNC because my wife wants to go to Florida with the kids
to see Mickey Mouse and I don't want to go if I'm going to get
stopped on the plane because it's a conviction?" I had to
tell him that it is not recorded and it is up to him whether he
declares it. If we had that custodial penalty, it is as simple
as that, it is a deterrent and people will go and find employment
elsewhere doing stuff where they cannot get a custodial penalty.
Mr Graham: It is not just in this
sort of sleazy world of husbands trying to find out what their
wives are really worth in divorce proceedings, which is the one
that is up on the site you mentioned at the moment, because the
husband wants to reopen a consent order to get a better deal under
the divorce settlement and he thinks his wife has been hiding
assets from him. Charming stuff. But it is also things that interest
the Serious Organised Crime Agency, SOCA, it is about witness
intimidation, it is about jury-tampering. That is the sort of
thing you can buy. Parliament, I think, was seduced by the siren
voices of Fleet Street, saying that this was going to have a chilling
effect on investigatory journalism, despite the fact that the
journalist simply has to establish that the story was a serious
story. I am not going to go after somebody who is doing something
manifestly in the public interest, but I will go after people
who play fast and loose with data protection legislation to no
good purpose. I need that custodial sentence in place and I need
it now.
Q1830 Chairman: When you say that
Parliament was seduced by siren voices, Parliament was not given
an opportunity because, as we understand it, the Prime Minister
received a call from Paul Dacre, Les Hinton and, I think, The
Daily Telegraph, a sort of concerted lobby, and, as a result,
the Government changed its policy.
Mr Graham: Well, I think that
the issue goes so much wider than journalism that a strong recommendation
from this Committee might put some backbone into it.
Q1831 Janet Anderson: I just wanted
to pursue that, Mr Graham, and really a lot of the points I wanted
to raise have been dealt with. The Chairman has said that he feels
the Government did essentially what was a U-turn on this particular
clause in the Criminal Justice and Immigration Bill which would
have imposed a custodial sentence as a result of pressure from
Fleet Street. Are you aware that that was the case, and do you
know whether the ICO at the time strongly objected to that?
Mr Graham: Well, the position
of the ICO at the time is set out in What Price Privacy?
and What Price Privacy Now? I am afraid we are getting
into territory I cannot comment on because I simply was not there.
I only started on 29 June and I was not concerned with the higher
politics of all this.
Q1832 Janet Anderson: But will you
be lobbying the Government now that you are in post to restore
that particular clause in some way because they have actually
made it into a suspended clause and it is not quite clear what
is needed to reactivate it? Will you be lobbying to make sure
that it is reactivated?
Mr Graham: Yes, I contacted the
Ministry of Justice last night and said that this would be the
burden of my song before the Committee, and I understand it would
involve a ministerial order. I do not think it even involves further
parliamentary consideration. It is designed to be there as a Sword
of Damocles. The trouble is that the threat is a wasting asset.
The extent to which everyone is on their best behaviour at the
moment is, I think, because of the Goodman jailing and because
of all the talk about custodial sentences. But anyone reading
the papers today, seeing that you get £100 plus £100
costs and the judge regretting that he cannot do more is pretty
much an invitation to get back to the old business, so I think
we really do need to have that custodial sentence in place.
Q1833 Janet Anderson: So you would
like that to be a recommendation of this Committee to the Government
that they reactivate that clause?
Mr Graham: I would very much welcome
that, and it would only be repeating what you said in your previous
Report, that you were convinced that the custodial sentence was
necessary.
Q1834 Philip Davies: I understand
your point about the custodial sentence, but, given that we do
not seem to be able to keep murderers, rapists and even terrorists
in prison, I think your chances might be slim, to be perfectly
honest. Just on this point of deterrent, I was intrigued by your
earlier answer to the Chairman about why you did not take any
action previously, and the answer that you gave was that you were
filing it under "Too difficult" or "Too time-consuming"
perhaps, that there were 400 separate investigations you would
have to carry out and, therefore, you just did not bother because
there was too much to go at. Surely, whatever the penalties are,
if something is taking place on such a wide scale that you cannot
investigate it, it does not matter what the penalties are because
nobody will ever be brought to justice anyway because, if it is
so wide-scale, you are just going to file it under "Too time-consuming".
Mr Graham: We are not filing it
under "Too difficult" or "Too time-consuming".
Every regulator you deal with has to make decisions and choices.
The Better Regulation approach urges us all to be proportionate
and to pick our battles. When I was at the Advertising Standards
Authority, I used to be infuriated that the Office of Fair Trading
were not always willing to pick up the cases I wanted them to
pick up. You know, you have to make choices. The question of the
penalty is its deterrent effect; it is the big stick in the cupboard.
As David has said, if people have to factor that risk in, it is
a business that it is not worth being in, and the example he gave
was of somebody concerned that his criminal record would show
up and that would even spoil the family holiday in Florida. The
problem at the moment is that it is simply a business cost and
you just write it off against expenses; it is peanuts. Now, we
need the big stick in the cupboard. At the moment, all we have
got in the cupboard is a sort of promissory note, saying, "If
it happens again, we will send off for a stick". Now, that
is not a deterrent. So, if we have the custodial sentence in place,
then I confidently believe that the sort of operation we have
been talking about of people dealing in confidential, personal
information for no good purposes will stop at a stroke because
it just will not be worth it, it will not be sufficiently profitable
to make it worthwhile. At the moment, it is very profitable, thank
you very much, and any fines you get in the magistrates' court
you simply dock off as expenses.
Q1835 Philip Davies: But what you
said in your earlier answer seemed to indicate that, if somebody
acts alone and there is one example of it, you will deal with
it because there is only one to deal with and, if it is totally
widespread and it is endemic across the whole board and there
is so much of it, then you just have not got the resources to
deal with it.
Mr Graham: No—
Q1836 Philip Davies: That appeared
to be what you were saying.
Mr Graham: No, Mr Davies, you
are misrepresenting what I said. I said that it was so big, with
17,000 individual items, 305 journalists and Lord knows how many
titles, that the appropriate response was to make a big issue
of it, to produce formal reports to Parliament, to call for a
change in the law, to get the PCC moving to call on the industry
and so on and so on. That is how you can deal with information
in the mass. Individual applications from individuals, saying,
"Assist me with what you may or may not have got on the file",
I can deal with. What I cannot deal with is going through forensically
to the standard of proof to work in a court of law 17,000 particular
instances and attaching them to stories and then working out whether
the story was or was not in the public interest and working out
whether my lawyers would be able to beat their lawyers. That simply
would have been irresponsible given everything else that Parliament
has charged the Information Commissioner's Office with doing.
I think the public would be outraged if they thought we were so
up ourselves that we were just looking at journalists and not
looking at the wider societal problems of witness intimidation,
jury-tampering, people getting in the way of the course of justice
in family proceedings and all these other things which are the
big issue which we have it in our power to deal with. I do not
want to get drawn into a battle between two newspaper groups and
nor, I suggest, should the Committee.
Q1837 Philip Davies: Do you not think
that the public might be outraged if you were aware of lots of
things that were going wrong, but you were not doing anything
about them because they were too time-consuming to deal with and
you were looking at other things instead?
Mr Graham: But, as I have said,
that is not what I said. We were tackling it at source in dealing
with the dealers in the information and at the top by dealing
with legislation. We were let down. We were let down by the courts
who did not seem to be interested in levying even the pathetic
penalties they had at their disposal, we were rather let down
by Parliament in the end because nothing came of the legislation
and I think, frankly, we were let down by the newspaper groups
who clearly did not take it as seriously as the ICO.
Q1838 Mr Watson: I am hopefully going
to try and get your ideas for what we could do as a Committee
to satisfy ourselves that this will not happen again, and you
have raised a very important point about what legislation can
be enacted to make that happen. I would like to tease you a little
bit on whether you think that self-regulation in this area is
working and, in particular, the test that a journalist has to
make about public interest, how that is assessed and whether there
could be self-regulatory rules that make sure that they are not
just at it.
Mr Graham: I do not think it is
the job of the Information Commissioner to offer a view on self-regulation
of the press. I have already said that, coming from my previous
job only a few weeks ago as Director General of the Advertising
Standards Authority, I think effective self-regulation can be
an extremely effective way of proceeding, but perhaps that is
for another day. The idea of a public interest defence for the
legitimacy of journalistic activity is absolutely fundamental
and it is not just to do with the PCC, it is a defence under the
Data Protection Act, and in my role I will, both under the Data
Protection Act and the Freedom of Information Act, have to take
many decisions, balancing sometimes competing interests in deciding
where the public interest lies. I gave the example of the famous
Guardian investigation into the Aitken family's stay in that French
hotel and the subterfuge that was employed to extract the bill
from the vaults in the hotel, a very exciting story, and anyone
who has been involved in journalism, as I have, would say that
that was a legitimate piece of activity, so sometimes you do slightly
doubtful things in a good cause. I suppose the issue is whether
the undoubtedly doubtful things are simply in the cause of fluff
and tittle-tattle.
Q1839 Mr Watson: Given that there
is a public interest defence in the Data Protection Act, presumably
what is in the public interest will be defined by case law?
Mr Graham: There will be similar
cases which will no doubt inform, but I think every case has to
be looked at on its merits. Of course it is a truism, is it not,
that the public interest is not necessarily what interests the
public?
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