Home Affairs CommitteeSupplementary written evidence submitted by the Information Commissioner [PI23]
Thank you for your letter of 16 March with your follow-up points arising from my evidence of 7 February.
To respond to each of your points in turn.
Number of Private Investigators
My estimate of around 2,000 private investigators is correct.
If the committee are interested in how I arrive at that figure, the ICO has two templates under which private investigators can choose to notify. Under N810 “Private Investigation”, on 1 March 2012 the public register shows that the number of data controllers that had chosen the template N810 “Private Investigation” as the purpose on their registration was 1,061. Under N811 “Private Investigation & Debt Administration and Factoring”, on 1 March 2012 the public register shows that the number of data controllers that had chosen the template N811 “Private Investigation & Debt Administration” as the purpose on their registration was 670.
This makes a total of 1,731 altogether. However, we are aware that there are some data controllers who do private investigation work but choose a different template to either N810 or N811 and we also provide a list of purposes that can be added to a registration and P126 is the purpose code for private investigation.
On 26 March 2012, we asked our IT service provider to run a report which asked for the number of registrations on the public register which contained the P126 purpose “Private Investigation”. This found 2030.
Operation Motorman Materials
I enclose a copy of the two sets of invoices that we provided to the Culture Media and Sport Select Committee in 2009. These were redacted to remove personal information. As I have previously explained; I am prevented by section 59 of the Data Protection Act from further publishing material recovered from the investigator Steve Whittamore without “lawful authority”. I also enclose sample pages from one of the Motorman ledgers, similarly redacted.1 This is from the “yellow book”, described as containing orders from journalists working for “Mail, Express and others”. This is similar to the material supplied to the Culture Media and Sport Committee.
ICO Investigations
In the past two years, we have not prosecuted any private investigators for offences under the Data Protection Act. We have however been engaged in one long-running and complex investigation which we expect to be able to bring to court imminently.
The ICO is in a process of developing our intelligence capacity and this has resulted in a number of organisations being identified as offering services which we believe would be illegal. We have at this stage identified seven such organisations and we are at the intelligence gathering stage in relation to this exercise.
The ICO is also working with other regulators and law enforcement bodies. In February, the Serious Organised Crime Agency (SOCA) successfully prosecuted four private investigators who had been “blagging” personal information in order to facilitate various frauds. The four were gaoled under the Fraud Act. SOCA have agreed to share some of the evidence obtained in Operation Millipede with the ICO. A SOCA press statement said “SOCA worked in partnership with a number of bodies including the Information Commissioner’s Office. SOCA will now hand over any such information to its partners to determine whether further action is appropriate.” Similarly the Metropolitan Police have agreed to share some of the evidence relating to private investigators that they uncover during aspects of the Operation Wheeting investigation into phone-hacking at the News of the World. This information will be collated and used within the investigations department to inform and support proactive investigations into rogue elements within the private investigator community.
We have had a number of other complaints referred to us regarding those offering or supplying private investigation services that may have committed section 55 offences. These complaints have, on the whole, overlapped the police investigations linked to operation Wheeting and as such we have accepted that the police investigation would take precedence in those circumstances.
I regret I am not able to provide more precise statistical information for the Committee.
April 2012
Annex 1
COUNCILS SURVEY RESULTS
Name |
Employed Pis in |
Money spent in |
Standard rate |
Retainer |
Main purposes |
Guidance |
Legal advice |
DPA |
Measures taken to |
Bristol City Council |
Frequently |
Under £10,000 |
£100 for successful trace; service of documents £96 |
No |
Tracing debtors; service of documents |
No |
Consideration of Data Protection Act where applicable |
No |
Written checks for compliance with the Data Protection Act |
Cambridgeshire County Council |
Never |
None |
n/a |
No |
n/a |
No |
n/a |
n/a |
n/a |
Cumbria County Council |
Never |
None |
n/a |
No |
n/a |
No |
n/a |
n/a |
n/a |
Devon County Council |
Occasionally |
Under £1,000 (£34.50) |
No win, no fee |
No |
Debt recovery |
No |
None |
n/a |
None |
East Sussex County Council |
Occasionally |
Under £10,000 |
n/a |
No |
Surveillance of benefit claimants and in a child protection case; regular use of process servers |
No |
No information |
No information |
No information |
Essex County Council |
Occasionally (once) |
Under £1,000 |
Fixed rate |
No |
Benefit fraud investigation |
No |
None specific |
n/a |
RIPA compliance |
Hampshire County Council |
Occasionally |
Under £10,000 |
Job rate |
No |
Litigation use (evidence gathering in fraud cases) |
Yes |
Legal services approve RIPA application |
New safeguards: risk assessment, RIPA compliance, no filming of third parties unless anonymised |
Risk asssessment and policy checks |
Herefordshire Council |
Never |
None |
n/a |
No |
n/a |
No |
n/a |
n/a |
n/a |
Hertfordshire County Council |
Occasionally (three times) |
None |
No |
No |
Surveillance in social care case and protection |
No |
No information |
No information |
No information |
Lincolnshire County Council |
Occasionally |
Under £10,000 |
Daily rate of £950 + VAT for a team |
No |
Covert surveillance in relation to counterfeiting and investigation of money laundering and fraud cases |
Yes |
Internal legal services |
No change |
Clear instruction, RIPA authorisations and record-keeping |
North Yorkshire County Council |
Occasionally |
None |
Daily rate |
No |
Child protection cases |
Yes |
Internal legal services ensure RIPA compliance |
Procedures are reviewed annually |
RIPA procedures included in the instructions to the investigator |
Northamptonshire County Council |
Occasionally |
None |
Hourly rate |
No |
Insurance fraud cases |
Yes |
Not recorded |
RIPA compliance |
Only RIPA compliant and accrediated firms are used |
Northumberland County Council |
Frequently |
Under £1,000 |
Hourly rate |
No |
Process serving |
Yes (mainly RIPA guidance) |
Internal advice from legal services |
Unknown |
n/a (not used for surveillance) |
Nottinghamshire County Council |
Occasionally |
Under £10,000 |
Hourly rate of £45 |
No |
Child protection cases |
RIPA policy to govern surveillance cases |
Could not provide information at reasonable cost |
The Council seeks to procure the services of reputable firms. |
|
Oxfordshire County Council |
Occasionally as private investigators, frequently as process servers |
Under £50,000 |
Job rate for debt collection (£65); hourly rate for child care matters (£35, plus mileage) |
No |
Debt recovery (principally service of papers and locating debtors) and child care (principally process servers) |
Yes |
Internal advice from the County Solicitor and Monitoring Officer |
Introduction of Regulation of Investigatory Powers Act procedures. 2 recent authorisations made in child abuse cases. |
Contractual confidentiality requirements and use of small number of respected investigators. |
Suffolk County Council |
Never |
None |
n/a |
No |
n/a |
No |
n/a |
n/a |
n/a |
Surrey County Council |
Never |
None |
n/a |
No |
n/a |
No |
n/a |
n/a |
n/a |
Annex 2
NEWSPAPER/BROADCASTERS SURVEY RESULTS
Name |
Employed Pis in |
Money spent |
Standard |
Retainer |
Employed |
Changed |
Guidance |
Legal |
DPA |
Measures taken to |
BBC |
Responded to say “cannot help” |
|
|
|
|
|
|
|
|
|
Daily Express |
Never |
None |
n/a |
No |
No |
No |
Yes |
Advice is privaledged |
n/a |
n/a |
Daily Mail |
Never |
None |
n/a |
No |
No |
No |
No |
n/a |
n/a |
n/a |
Daily Star |
Never |
None |
n/a |
No |
No |
No |
Yes—don’t use them |
None—never use them |
n/a |
n/a |
Daily Telegraph |
Responded with quote “Not aware of anyone..using or paying a PI” |
|
|
|
|
|
|
|
|
|
Eastern Daily Press |
|
|
|
|
|
|
|
|
|
|
Express & Star |
Never |
None |
n/a |
No |
No |
No |
No |
None |
n/a |
n/a |
Express and Star Wolverhampton |
Never |
None |
n/a |
No |
No |
No |
No |
n/a |
n/a |
n/a |
Financial Times |
Occasionally—we can reall one occasion in the last several years, on a post-publication complaints matter |
None |
n/a |
No |
No |
No |
No |
Any legal advice received is privileged |
No |
n/a |
Independent |
Never |
None |
n/a |
No |
No |
No |
Yes |
Reluctant to disclose |
n/a |
Code of conduct; would only use Pis in the most exceptional circs |
Leicester Mercury |
Never |
None |
n/a |
No |
No |
No |
No |
n/a |
n/a |
n/a |
Liverpool Echo |
Never |
None |
n/a |
No |
No |
No |
No |
n/a |
n/a |
n/a |
Northern Echo |
Never |
None |
n/a |
No |
No |
No |
No |
n/a |
n/a |
n/a |
Shropshire Star |
Never |
None |
n/a |
No |
No |
No |
No |
n/a |
n/a |
n/a |
Sunday Herald |
Never |
None |
n/a |
No |
No |
No |
No need |
None |
No |
n/a |
Sunday Telegraph |
Responded with quote “to the best of my knowledge, has not hired a PI..not opposed to the concept” |
|
|
|
|
|
|
|
|
|
The Mail on Sunday |
Never |
None |
n/a |
No |
No |
No |
Yes—they are forbidden to use them |
Internal legal advice (pre 2007) |
We banned use of Pis in 2007 |
n/a |
The Sun Newspaper |
Occasionally |
Under £10,000 |
In the most recent commissions, which involved sourcing information, the average payment was £170 per job |
No |
No |
Yes. Prior to usage, authorisation has to be granted by the News International CEO |
Should any authorisation be given by the CEO for use of a private investigator, any such commission would be carried out under the supervision of the News Group legal departmetn. Since the rule came into force in October 2011 there have been no requests by the Sun to use a private detective. |
The new rule about CEO authorisation for the use of private investigators came about after legal consultation. |
Detailed records do not go back as far as 1998, however use has declined significantly in recent years. |
We expect all third party contirbutors to abide by the law. A new editorial code is being drafted to make it explicit that adherence to the law and the Press Complaints Commission Code will be a contractual obligation of any commission. |
The Sunday Times |
Occasionally |
None |
It is assessed by job |
No |
No |
Yes—only with Editor’s approval and the agreement of the CEO |
Yes—if authorisation is given, we will have a written agreement with any investigator which requires them to abide by the PCC code and the law. |
Legal advice is privileged, but use of investigators |
Use of Pis has diminished considerably in recent years as more information becomes readily available on the internet . |
See answer to Q 7 |
The Times |
Occasionally |
None |
n/a |
No |
No |
No |
We have not used investigators for four years. If we did, we would discuss how and why. |
n/a |
n/a |
n/a |
Yorkshire Post |
Never |
None |
n/a |
No |
No |
No |
No |
n/a |
n/a |
n/a |
1 Not separately printed