CURRENT STATUS
- Part 2
The five articles below are taken from the BBC News Online. Whilst the
articles are now somewhat dated the gist is good.
Collectively these articles present a good layman’s guide to the UK
information availability. These articles focus on the inward
perspective.
Global culture of
secrecy
By Clare Murphy
BBC News Online
Britain, with its Official Secrets Act, is not the only country whose
establishment is terrified of public scrutiny.
All over the world regimes conspire to keep information secret, either
through legislation, dirty tricks or sheer intimidation. The buzzword
is invariably "national security".
Mention state secrecy, and Russia and China will still be among the
first which spring to most peoples' minds.
Indeed, over the past 12 months, the two states appear to have done
little to shake off that reputation.
The hostage drama which unfolded in a Moscow theatre late last year had
the world on the edge of their seats - a world which looked on in
horror as the limp bodies emerged of theatre-goers overcome by the
deadly gas used by Russian special forces to end the siege by Chechen
rebels. The Russian authorities have refused to reveal the type
of gas which
was used, citing state security, which some claimed seriously impeded
doctors' ability to treat the sick and dying.
The incident recalled the Russian authorities' treatment of the Kursk
nuclear submarine disaster two years earlier, in which layers of
official fabrication about the fate of the sailors on board was
gradually unpicked by relatives.
For them, the spirit of the highly secretive Soviet Union was still
alive and well.
Similarly the response by Chinese authorities to the outbreak of the
Sars virus last November was to pretend to its people it had not
happened. Keen to prevent panic both among its own people and all
important
foreign investors, China effectively turned down a helping hand from
the World Health Organisation, which could have helped stem the spread
of the disease in the early stages. Instead, it was four months
before it admitted the scale of the
outbreak. Ultimately, far from protecting its status, Beijing
appears to have
sowed doubts about its authority among its people.
One Sars victim told the BBC, as the disease waned: "I used to believe
everything the government told me. But now, after Sars, I will weigh
everything the government says very carefully, and I'll judge how much
of it is true."
None of your business
But even in countries traditionally seen as beacons of freedom of
information, openness is far from guaranteed.
The United States, citing the need for state security in the aftermath
of 11 September, has imposed a number of restrictions on access to
information. Most recently, the US Court of Appeals backed the
government's decision
not to release the names of people it had detained in the months
following the attacks.
Hundreds of people were arrested at the end of 2001, most of them held
on immigration violations.
The administration has refused to release their names saying to do so
would give "terrorists" a "virtual roadmap" to their
investigations. The coalition of organisations seeking in vain to
force the authorities
to disclose the information argued they were seriously undermining the
most basic principles of justice.
Even in Sweden, which has enjoyed a freedom of information law since
the 18th Century, they have not escaped the security fallout of 11
September. A justice ministry source told BBC News Online: "We probably are
holding back more information than we used to. We are getting more
information and quite a lot of that information cannot be released
because of state security."
Turning the tables
Many other countries are still waiting for anything resembling freedom
of information. Many states in Africa are unaware or hostile to
the concept of freedom
of information, while Luxembourg and Germany are the only countries in
the European Union to be without such legislation.
The chairman of Transparency International in Germany said: "We are
campaigning hard, but here there is a long tradition of the government
believing it is serving the public interest by keeping things
confidential."
But even when legislation is introduced, there are some cautionary
tales.
Japan managed to turn freedom of information legislation to its own
advantage by creating a database on citizens who had made requests
under the recently passed law. Defence agencies conducted background
checks on each person who made a
request, and noted their age, occupation, and even their political
views.
A-Z
of Secret Britain
The laws relating to secrecy and privacy in British life are numerous
and some of them often appear to contradict each other. BBC News Online
offers a glossary of laws and agencies governing "Secret Britain".
The Freedom of Information Act
2000
The act established a general
right of access to information held on
people by public bodies in England.
Public bodies must publish the information they hold on individuals.
The Scottish Parliament has agreed to introduce a Freedom of
Information Act by 2005. It is considered by campaigners to be more
powerful than its English counterpart.
Wales has its own code of practice on access to information
The Public Records Act
It regulates the release of
government information, such as Cabinet
papers, under the 30-year rule.
The information commissioner
The information commissioner,
currently Richard Thomas, is responsible
for enforcing and overseeing the Data Protection and Freedom of
Information Acts. His office receives complaints from the public
about the misuse of
their personal data and investigates whether the law has been
broken. His annual report to Parliament for 2002 revealed there
had been more
than 12,000 complaints that led to 33 convictions.
Freedom of information campaigners have argued that the commissioner
has not interpreted his role widely enough and is not doing enough to
ensure people have access to the data held on them.
Data Protection Act 1998
The act was introduced as a
response to growing public disquiet about
personal information held on computers. It created a good
practice code for holders of personal information,
which means they must process data accurately and for limited
purposes. The act gives individuals rights to access the data
held on them and to
seek compensation if data is wrongly held or used, though there are
exemptions such as national security and law enforcement.
Organisations can charge £10 for such requests. The act
created a Data Protection Registrar, whose job it was to
monitor compliance, but this has been replaced by the Information
Commissioner.
Regulation of Investigatory
Powers Act (RIPA) 2000
Ripa updated the law on the
interception of communications and puts the
onus on internet service providers (ISPs) to disclose information to
the government when required. Ripa has been branded a "snoopers'
charter" by human rights campaigners
who say it gives the government unprecedented powers to monitor the
communications of law-abiding citizens. It provides new guidance on the
use of covert surveillance and gives
the state new powers to access encrypted computer data.
Investigatory Powers Tribunal
The tribunal, which was set up by
RIPA and replaced the Interception of
Communications Tribunal, is designed to deal with complaints from the
public about surveillance by the intelligence services and the
police. It is headed by Lord Justice Mummery and is made of up of
a president,
vice-president and seven QCs. The tribunal investigated over 102
complaints against the security
services during 2001, but upheld none. It was set up to sit in
secret but, after a challenge by the Guardian
newspaper under the Human Rights Act, will now sit in public when there
is no "threat to national security".
Office of Surveillance
Commissioners (OSC)
The OSC's remit is to review
authorisations by chief officers of
police, the National Criminal Intelligence Service, the National Crime
Squad and HM Customs, for operations involving entry onto private
property, or interference with property or telephones, without the
consent of the owner. The OSC also reviews operations involving
human intelligence sources -
spies and informants. It is made up of former judges and is currently
headed by Sir Andrew Leggatt. He reports annually to the prime minister
and the Scottish first minister. The OSC, funded by the Home
Office, does not have the power to review
operations carried out by the secret services.
When surveillance commissioners
have to give prior approval.
- If the target premises is a home, or a hotel bedroom
- If the target premises is an office
- If legally privileged information, confidential personal
details or confidential journalistic material is likely to be acquired
The Interception of
Communications Act 1985
The act, for the first time,
created a framework for the interception
of mail and telephone communications.
Under the act the home secretary needs to be convinced of one of three
criteria before he can sign an interception warrant: a risk to the
national security of the UK; a threat of serious crime; or a threat to
the economic well-being of the UK. The act also sets out
guidelines on the way intercepted material could
be copied, distributed and stored. Interception of communications
commissioner Set up by the above act, the commissioner is primarily
responsible for
reviewing warrants issued by the home secretary and the Scottish
Executive to intercept communications.
The current commissioner, Sir
Swinton Thomas, is a former judge. He
reports to the prime minister and Parliament every year. In his 2001
report he said 1,314 phone taps were authorised, but there
were 43 errors made - such as the targeting of an incorrect address or
telephone number. Some of these errors led to some people being
monitored by the security services without reason.
Lawful Business Practice
Regulations
Another product of Ripa, the
regulations establish in what ways
employers can snoop on their employees.
Employers can intercept communications, including e-mails, letters and
phone calls, without their employees' consent. The employers need
only suspect that "regulations are not being
complied with" to begin monitoring, although they do have to inform
staff this may take place. Employees are protected by the Data
Protection Act, which provides
guidelines for the way in which the information gathered can be used
for.
Intelligence services
commissioner
The commissioner, Lord Justice
Simon Brown, reviews the warrants issued
by the home secretary that authorise interference with property and
telephone equipment by the intelligence services.
He also reviews the use of intrusive and covert human surveillance by
the security services.
Lord Brown also has powers to review the activities of the secret
intelligence services abroad, even those which been sanctioned by the
foreign secretary. The commissioner can demand access to
documentation from the security
services and makes an annual report to the prime minister that is then
presented to Parliament.
The Anti-Terrorism, Crime and
Security Act 2001
The act allows the public bodies
to disclose personal information to
the authorities when criminal investigations are under way. The
act allows Customs & Excise and the Inland Revenue to disclose
financial details to the authorities. Under the act, data used by
phone companies and internet service
providers must be provided to the authorities when there is a threat to
national security.
Defence, press and broadcasting
advisory committee
The committee is an informal body
made up of five government officials
and 12 media representatives which regulates the publishing or
broadcasting of information that may be a threat to national security.
There are standing DA notices covering five sensitive areas - military
operations and plans; nuclear weapons; codes; sensitive installations
and home addresses; and the intelligence services. The notices
are not legally binding but most newspaper editors and
broadcasting chiefs tend to pay heed as it does not look good to be
seen to be endangering national security or servicemen's lives.
The committee's secretary, Rear Admiral Nick Wilkinson, also gives
informal advice to the media and did so during the Iraq war on the
activities of special forces. An example of a DA notice in operation
was the recent case of British
soldiers captured by rebels in Sierra Leone. Special forces were
sent to rescue them but a DA notice was issued
preventing reporting of the mission in case the captured soldiers were
killed or hidden.
Wireless Telegraphy Act 1998
This act, which updates earlier
legislation, governs the management of
the radio spectrum.
Basically anyone using a frequency making up part of the spectrum -
from mobile phone companies to radio stations - has to get a licence
from the Radio Communications Agency, which is soon to become part of
the watchdog Ofcom. Under the act it is illegal to transmit
on a frequency without a
licence - for example using an audio transmitter bug.
Q
& A: Secret Britain
Freedom of Information legislation has been introduced but critics say
it does not go far enough in challenging official secrecy.
Meanwhile, the growth of the internet and advances in technology have
thrown up new questions about how to protect individual privacy. BBC
News Online looks at the issues.
Do the police and MI5 need a
warrant every time they install a bug or a
telephone tap? If so, how do they go about it and what do they need to
prove?
Yes. Under the Regulation of
Investigatory Powers Act 2000 the police
and security services need a warrant, signed by the home secretary,
before they can initiate a phone tap.
Sometimes, if there is an immediate threat to life or another reason
for great urgency, taps will be initiated without a warrant. But the
police must inform the home secretary as soon as practicable and obtain
a retrospective warrant. The warrant must name either a specific named
person who is the target
or a single set of premises which is the focus of the investigation.
Is it legal for private
individuals or companies in the UK to tap
phones or conduct covert surveillance?
No. Only a small number of law
enforcement and intelligence agencies
are permitted to tap other people's phones. It is legal to tap your own
phone or those of your own company, but not somebody else's phone.
What clues would alert me that
my phone might be tapped? How would I go
about checking my home for taps or bugs?
If your phone is being tapped by
a professional then there will be no
clues.
But if they are amateurish, or are using obsolete equipment, you may
hear clicking or tapping noises on the line. Some people have also
heard previous conversations being played back down the line, or voices
whispering. To check for taps you can apply certain professionals
who, equipped
with the right equipment, can conduct counter surveillance sweeps to
locate and remove bugs and possibly taps.
Is there any way I can find out
if my phone is tapped, or my house
bugged by the police or MI5? Can I find out if they have a file on me
and, if so, what it says about me? Can I challenge what information is
in these files?
No. Neither the police nor the
intelligence services are under any
obligation to reveal the presence of a bug or tap and would be foolish
to admit to either. In 1998 the then Home Secretary Jack Straw said, in
a written
parliamentary reply: "It is a clear
principle of law and practice that
people are never told whether or not their communications have been
intercepted under warrant." The purpose is to safeguard
operational practices and techniques from
disclosures which might undermine their effectiveness."
Under the Data Protection Act you are entitled to request personal
information about yourself. But the police and intelligence services
will probably refuse under national security or law enforcement
exemptions.
When does the Freedom of
Information Act come into force and how will
it change the way people can get access to information about themselves
or things which affect their lives?
The act is being phased in but
will be fully implemented by January
2005. For the first time the press and public will be entitled to
access the
majority of information held by public bodies, including health trusts
and education authorities. The legislation is retrospective, so
you can find out about records
dating back to the 19th Century. Public bodies will be entitled
to charge for some information, to cover
administrative costs, and certain information will be exempt. The
information commissioner will have to adjudicate on exempt material.
Does the Freedom of Information
Act affect companies and, if not, how
can we find out about the firms who employ us or provide services to
us?
Companies are not covered,
although certain firms who work in the
public sector - such as Railtrack - may be included.
Does the Act give me or the
press on my behalf, new rights to find out
information about my new neighbours, my child's teachers, prospective
childminders or potential business partners?
No. Personal information on
individuals, which is held by public
bodies, is exempt under the Data Protection Act and you would only be
entitled to view it in very rare circumstances.
How much information about the
government is kept secret?
<>A lot of sensitive
political
information, such as the minutes of
Cabinet meetings, remains secret under the 30-year rule. Sometimes, for
example with defence information, the time limit can be extended.
At the end of the 30 years they are released by the Public Record
Office in Kew, south west London. <>Under the Freedom of
Information Act there is a wide-ranging exemption
covering "policy advice", which has been widely criticised. For
example, with the foot-and-mouth crisis, ministers will not have to
reveal the scientific advice, research or opinion polls on which
decisions were based.
<>
<>
How does Britain compare with
other countries in terms of secrecy?
Britain compares poorly with many
other western countries, such as
Sweden, which has had wide-ranging freedom of information legislation
since the 19th Century. New Zealand and Ireland are also examples of
good practice, although the latter's laws have recently been amended
and access to information is not as good as it once was. But some
countries, such as Russia, China, Iran and North Korea have an
almost paranoid fear of openness. Many developing countries, such
as the Democratic Republic of Congo,
have got no process for allowing access to records. Their
record-keeping tends to be "appalling" and many files go missing, or
are burned, during times of conflict.
Is there any way of finding out
if I am on a credit blacklist, and if
so, is there any way of removing myself from it?
Under the Data Protection Act you
are entitled to this information and,
if you feel it is unfair, you can complain to the office of the
information commissioner.
Has the internet changed things
for the better or worse?
One of the negative aspects about
the internet is that if criminals can
crack a credit card database they can get tens of thousands or millions
of useable numbers that would otherwise take them years to amass. You
should not send credit card details in an e-mail for the same
reason that you would not put them on a postcard. When you use a credit
card online the information should be encrypted. But the risk is that
the firm you are buying from will not protect its
database.
It is very easy for the police and intelligence services to intercept
e-mail. Technologically it is child's play. The hardest part is
getting
permission to do it in the first place and new laws make it much easier
for the police to get surveillance requests approved. But the police
are only allowed to look at who you are communicating
with rather than what you are talking about. If they want to look at
the content of your e-mails they have to seek permission from much more
senior judicial figures.
Steering a course
through information maze
By Mark Davies
BBC News Online political reporter
When Paul Dainton applied to the Environment Agency to see what
personal information the organisation kept on him, he received 300
pages of documents. Many were blacked out due to "commercial
confidentiality", says the
campaigner against a landfill tip in Wakefield, West Yorkshire. But
they did include local newspaper cuttings about his missing
budgerigar.
Mr Dainton, who is campaigning against a landfill site in Wakefield,
West Yorkshire, made his application under the Data Protection Act
(DPA). It is one of a myriad of codes and regulations which currently
cover
the release of information - some of which will be replaced by the
Freedom of Information Act in 2005. As well as the DPA, there are
rules on NHS openness, environmental
information and a general code of practice introduced by John Major's
government. For those people campaigning on local issues across
the UK, the
situation can be confusing and often frustrating.
'Moving target'
Karen Barratt of Mast Sanity - a nationwide group made up of local
campaigns over the alleged health implications of phone masts - says
the problems in accessing information are mundane but
infuriating. Information is scattered around different government
departments,
ministers come and go, and the issue has moved around four departments
in less than three years. She says: "Perhaps they think a moving target is more
difficult to hit. At a local level, planning departments have
glossy codes of best
practice, PR leaflets full of spin, but they don't really get to grips
with the problem. Objectors to specific applications tend to be
regarded as a nuisance
and as a result it is not always easy to get information."
It is a frustration echoed by Alison Craig, who runs a telephone
helpline for Pesticide Action Network UK.
A key concern of the campaign is that the Health and Safety Executive
(HSE) is not obliged to reveal the contents of pesticides without the
farmers' consent. 'Astonishing'
,She says: "We've been promised that
this will be swept aside by the
Freedom of Information act, but we are lobbying at the moment. People don't realise that they don't have
very basic rights on this. However
toxic the stuff is, even if it is classified as poison, you
have no right to know if that is being used in the field next to your
house or a right of way. There is no obligation for a farmer to put a
sign up. It is astonishing"
Ms Craig says things are changing, but slowly. The
advisory committee
on pesticides now publishes its minutes on the web, for instance.
But Mr Dainton is not entirely convinced the Freedom of Information Act
will make a great deal of difference. He believes the act may
"tighten up" some of the ways in which
information is held back at the moment but says more work needs to be
done on making official documents more accessible. "The system is so stacked against the
ordinary campaigner. Unless you
can get the information in layman's terms, you are lost," he
says.
One key area in which there are high hopes for more access to
information is the environment. A new, improved set of EU regulations
must be introduced in the UK by
April 2004. And Phil Michaels of Friends of the Earth is hopeful
that they will
make a big difference. He says: "They
will be a very powerful weapon in the armoury of those
who want to get access to environmental information. They are not
perfect, but they are much better."
He says the new regulations include a presumption that
disclosing
information outweighs commercial confidentiality and would replace the
time-consuming and costly judicial reviews, with a free appeal to an
information commissioner.
But there is concern in the environmental lobby that the regulations
are being delayed by the government. A spokesman for the
environment department denied that, saying the
regulations would come into force once a programme of training for
public bodies affected - and it includes everything from train firms to
water companies - is completed.
Stumbling block
"We want all the officers who
have to deal with the regulations to be
fully up to speed, we don't want it to be a rushed job," he
said. Mr Michaels says the current situation can be
frustrating. For instance, he says the group has hit stumbling
block while seeking
information about the potential environmental threat of certain
pesticides. Even when the pesticides safety directorate agreed to
release the
information - after first saying they couldn't due to commercial
confidentiality - the company concern went to court to prevent
disclosure, he says.
Yet Mr Michaels says citizens in countries with more liberal freedom of
information laws, such as Sweden, would be able to apply for the same
information - and are more than likely get access to it. "Time and time again where public
authorities have a duty to disclose
information, they come up with excuses to avoid doing so," he
said.
Will it end Britain's culture
of secrecy?
By Mark Davies
BBC News Online political reporter
It seems an enticing prospect. Just click the link on the Department of
Health's website for a run-down of the NHS board's most recent
meeting. There might be a story in it. A juicy titbit. An amazing
revelation. Sadly not. Only the briefest details of the meeting
on 27 February this
year are revealed, including the following illuminating entry under
'Performance': "The prospects for the end of year were discussed."
Disappointing perhaps, but it does represent progress of a kind. The
requirement to publish details of such meetings comes under the Freedom
of Information Act, which comes into full force in January 2005.
The act will, according to the government, usher in a new period of
openness in government and beyond, with public bodies under an
obligation to release information about big decisions and recruitment
procedures, among other things.
People should, in theory, be able to find out why their child was
refused a place at their school of choice, check out how police
officers investigated the burglary at their home or investigate the
reasoning behind their long wait on a hospital waiting list.
Lord Filkin, the minister overseeing the implementation of the
legislation, says it will "deliver
real benefits to the public in
improvements to public services and a strengthening relationship
between government and the public". The UK will be shaping
up to become as open and transparent as the
likes of Sweden, where access to correspondence between Prime Minister
Goran Persson and other world leaders is available simply by popping
into his office.
Not optimistic
But campaigners for more openness in Whitehall and beyond are not that
optimistic. They complain the legislation has too many exemptions
and gives
ministers too much power to veto the release of certain information.
As the legislation - seen as having been watered down compared to the
initial White Paper in 1997 - made its way through parliament, Labour
MP Mark Fisher described it as "an
amazing defensive edifice for the
government...a virtually impregnable fortress". Campaigners on
grassroots issues up and down the UK, from a waste site
in Wakefield to a phone mast in Winchester, are perhaps less
pessimistic. Though hardly filled with hope, they complain that
at present they feel
thwarted in their attempts to prise information from public bodies.
Paul Dainton, who is campaigning against a landfill site in Wakefield,
West Yorkshire, says his efforts are constantly frustrated by an
apparent reluctance to release information. "Even when we do get stuff there are pages
and pages blacked out due to
'commercial confidentiality'. It's a big part of the battle," he
said.
Retrospective
The government is hopeful the new act will make a difference when it is
introduced in 2005. But with a series of "exempt categories" in
the legislation protecting
the release of information in Whitehall, such as that covering the
security services, campaigners expect the act to be most effective in
terms of the duties it imposes on public bodies. Much of the
information made available will be done so free of charge,
but organisations will be able to charge for the release of information
following specific requests.
The act covers education, health, the police and local government. It
is also retrospective - while documents will still be released every 30
years as at present, they could be published earlier if the information
is not covered by one of the act's exemptions.
Vow
"Publication schemes" are being rolled out to show what information
public bodies must make available - and those who fail to do can be
reported to a new Information Commissioner, Richard Thomas. In
2005 the commissioner will be able to order organisations to release
documents. The public will be entitled to know how people in top
jobs in the
police, armed forces, the BBC, the civil service and judiciary were
recruited and appointed. The reasons behind key decisions by bodies
such as the Health and
Safety Executive, Customs and Excise and the Parole Board will have to
be revealed, while details of police files over incidents such as the
Hillsborough disaster or Brixton riots could also be released.
Lord Filkin has vowed to report on the progress towards implementing
the act in November 2003.
The Campaign for Freedom of Information is concerned that little
progress has been made, though a spokesman acknowledged the process is
being stepped up. A campaign spokeswoman said: "In terms of how the act is going to work,
our view is that it is going to depend on how the information
commissioner interprets the public interest test and how regularly the
government is prepared to veto the commissioner." The
campaign believes the number and range of exemptions - and the
ability to veto the release of information - should be narrowed.
Opportunities
But it is also hopeful that, with the act forcing around 80,000 public
authorities to release information - and the right of appeal - it will
make a difference. The campaign plans to highlight those authorities
meeting their
obligations under the act in order to put pressure on those failing to
do so.
"The act is not as good as the
white paper, but there are opportunities
and we are going to have to wait and see how it is enforced,"
said the
spokeswoman. "One of the problems at
the moment is the lack of awareness about what
people have a right to see. Under the act, any request for information
is deemed to be a request
under the act even if people are unaware of the act. That is an
important change. What we are saying is that it might not be a sudden
release of
information, but keep trying - you will have a good chance of getting
something if you keep going."
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