Home affairsLetter from Christopher Graham, Information Commissioner, to the Chair of the Committee, 5 September 2013

We spoke on Monday about the 98 organisations and individuals named in the material passed to us by SOCA last week. I told you that I had launched an investigation into potential criminal offences. The material that we have received from SOCA is contained in, it now appears, over 30 files. I have deployed a team of investigators overseen by a Senior Investigating Officer to assess the material and check evidence of criminal acts against each of the 98 clients listed. This is an important but necessarily painstaking task, and we have committed to report on this work as we progress through the investigation.

I am writing following the meeting of your committee on Tuesday where you indicated that you intended to publish the identities of the 98 client organisations and individuals included on the list if SOCA had not done so themselves by your deadline of next Monday.

I have spoken to Trevor Pearce of SOCA and advised that, in my view, publication at this stage could prejudice my investigation. It is also my view that publication by SOCA of the names of the individuals concerned would not be fair processing under the Data Protection Act. I am concerned about the impact of disclosure on individuals who may not have broken the law.

Firstly, it seems to me to be bad policy to publish prematurely the names of organisations and individuals who are being investigated for potentially criminal activity. I am concerned that publication of the list in the early stages of our process could seriously prejudice the ICO investigation. I should like to set out my reasoning for the benefit of your committee.

After consulting with SOCA and the Metropolitan Police, I can confirm that none of the 98 clients on the list was contacted during their investigations. We have, therefore, to assume that any evidence held by the clients which could corroborate existing evidence collected by SOCA and/or further implicate each of the clients in any on-going criminal activity associated with the use of Private Investigators has not been lost or destroyed. I want us to be able to maximise this opportunity and conduct a speedy, thorough and robust criminal investigation aimed at securing the best evidence possible and bring to justice those responsible for criminal acts. This may require us to take executive action against some of the clients and execute search warrants using our powers of entry, and also conduct a large number of interviews with suspects not yet identified aimed at implicating or eliminating them from our enquiries. I am not suggesting that we will need to take this action against every client, but, as we are still reviewing the material, we simply do not know. Furthermore, if the list were to be published during the investigation then media interest could be anticipated to escalate to such an extent that it would generate swathes of additional/unused material that we would subsequently need to consider for disclosure to defence teams. These issues would have significant impact on my investigation and the investigation team.

I firmly believe that were the list to be published before we had had the chance properly to assess the SOCA material, the opportunities I have described above could be lost. I would therefore ask the committee to bear in mind the public interest in allowing the ICO investigation to proceed without prejudice.

Secondly, should your committee still be determined, under Parliamentary Privilege, to publish the SOCA list at this stage I should also, as Information Commissioner, advise that the individuals concerned must at least be given due notice by you of the impending publication. I am not aware (and, I suggest, neither are you) who, if any, knows of their inclusion, given that neither SOCA not the Met has told them.

On the same fair processing point, you will recall that the names of the 305 individual journalists who had commissioned work from the private investigator Steve Whittamore were also withheld from publication in the Information Commissioner’s 2006 report to Parliament What Price Privacy Now? You will also recall that the same report seven years ago highlighted the involvement of lawyers and accountants as well as newspapers and magazines in the unlawful trade in personal information and that the recommended action to amend section 55 of the Act to put in place a more effective deterrent sentencing framework remains outstanding.

Should your committee decide to publish the list, either on Monday or subsequently, I would ask you to publish this letter at the same time.