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
past 5 yrs

Money spent in
past yr

Standard rate

Retainer

Main purposes

Guidance

Legal advice

DPA

Measures taken to
ensure legally acquired

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
past 5 yrs

Money spent
in past yr

Standard
rate

Retainer

Employed
in other
capacities

Changed
since NoW

Guidance

Legal
advice

DPA

Measures taken to
ensure legally acquired

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

Prepared 5th July 2012