Following an FOI request instigated by yours truly, it has emerged that GCHQ are keeping tabs on FOI requestors. Even those requestors who have asked public authorities for a copy of GCHQ’s widely distributed, declassified, IT security documentation. The circumstances of my request illustrates why the FOIA exemption (Section 23) pertaining “national security” is ridiculously wide, and raises questions as to what “national security” now means.
The information that was the object of my desires is sexily entitled: “HMG IA Standard No.6: Protecting Personal Data and Managing Information Risk”. Each page is headed with the capital letters “NOT PROTECTIVELY MARKED” (which shows that there are no national security considerations with the content) and a footer which states “This information is exempt under the Freedom of Information Act 2000 (FOIA) and may be exempt under other UK information legislation”. This is followed by “Refer any FOIA queries to GCHQ...” (contact details provided).
How do I know the document says this? Well I obtained this unclassified document from a public authority web-site and it is relatively easy for readers to obtain their own “samizdat” copy.
The reason for this relative ease is because GCHQ’s “HMG IA Standard No.6..” has been widely distributed, by GCHQ, to Central Government, Local Authorities and NHS bodies and a host of other public sector organisations that have to implement the HMG Security Framework (which is freely available, and recommended download, on the Cabinet Office website). Private sector contractors, approved by GCHQ, are also given copies of the HMG IA Standard No.6.
The publicly available Security Framework documentation refers to the secret “HMG IA Standard No. 6...” as being a key document in helping to implement and understand the HMG Security Policy in the context of the processing of personal data. As this document (and other IA Standards like it) are not officially in the public domain, my FOI request was made with the simple intention of making it so. The objective is a simple one: how can the advice in the Security Framework be followed by other organisations if the supporting declassified documentation is also not made available?
Despite the “NOT PROTECTIVELY MARKED” label, I discovered the document is exempt from the FOI Act because of the wide nature of the national security exemption in section 23. This exemption requires that the requested information “was directly or indirectly supplied to the public authority” by GCHQ, a position that was upheld by an internal review which had input from GCHQ, I hasten to add.
So, suppose GCHQ supplied public bodies with its “Review of the collective works of Enid Blyton with a special emphasis on the roles of Big Ears and Noddy”. Such a document would be exempt from FOIA as the test the S.23 exemption applies is whether GCHQ supplied the text – not whether the exemption is needed in connection with any national security objective. As the S.23 exemption is an absolute exemption, there is no public interest test as to whether or not the document, if released, would prejudice national security.
This is unlike the national security exemption under the Data Protection Act, which provides for an exemption from the “fair processing” requirements of the Act if an exemption is necessary for “safeguarding national security”. As the document I requested is “NOT PROTECTIVELY MARKED”, my asking for it clearly does not raise any national security concern. It is therefore difficult to see why disclosure of personal data to GCHQ is (a) needed for presumably a national security purpose or (b) has to be kept secret from the data subject (i.e. the FOI applicant).
That is why I believe that, in the context of my kind of request, the disclosure of a FOI requestor details to GCHQ in the circumstances described above is a likely breach of the First (unfair) and Third Principles (excessive) and also cannot be legitimised in terms of Schedule 2 of the DPA.
By contrast, if the requestor asked for content that did carry a “confidential” or “secret” or “top secret” classification, then one could see arguments that such a disclosure could be justified. Indeed, one wonders whether this is routine practice already, and details of certain FOI requests and requestors are routinely disclosed to national security agencies. Who knows?
The handling of my FOIA request for an innocuous document provides evidence that the national security agencies will apply whatever exemption it can get it hands on, to be applied whenever it can, irrespective of the circumstances of the case. The mantra appears to be “if it can be kept secret, it will be kept secret”.
This is a worrying conclusion because the meaning of “national security” is expanding almost as fast as the Universe. In the latest “Wiki leaks” episode, the press were full of reports that a “snake venom facility” in Australia was a national security concern for the USA. Are we to assume, therefore, in the UK that “national security powers” could be applied to justify the processing of personal data in connection with the production of snake venom?
It is interesting to note that the Intelligence Services Act of 1994 provides the legal basis for GCHQ’s purpose associated with the provision of “bog standard”, declassified, IT security advice. This states that GCHQ’s role is to “to provide advice and assistance about ...the terminology used for technical matters, and cryptography and other matters relating to the protection of information and other material” to central government any other organisation chosen by the Prime Minister.
That explains why “national security” now embraces “providing advice and assistance on the security of communications and electronic data....”, business continuity and resilience planning (e.g. against Acts of God) and delivering “information assurance policy services” to public bodies. In fact, all situations envisaged by the Civil Contingencies Act 2004 are arguably now matters of “national security”.
The inclusion of these areas such as IT security is an example of “national security function creep”. These wider dimensions add to that creeping which has already arisen in the area of policing, as both the Intelligence Services Act of 1994 and Security Service Act of 1996, extended the function of the national security agencies to additionally support “the activities of police forces and other law enforcement agencies in the prevention and detection of serious crime”.
So when these national security agencies process personal data to support the police, these agencies do not process personal data for a “crime purpose” (which is the obvious purpose when the processing is to assist the police in connection with serious crime) but rather for the “national security purpose”. This position was upheld by previous Home Secretaries in the previous administration (see reference).
Why the difference? Well both exemptions are designed to protect the processing interests of the respective bodies, and they have successfully achieved this objective. For example, I have not heard the police arguing that the Data Protection Act stops them processing their criminal intelligence. However, the policing exemption in Section 29 of the Data Protection Act is fully subject to the Information Commissioner’s independent oversight, whilst the broader “national security purpose” in Section 28 is not. Hence the inevitable conclusion that the objective of morphing the “national security” purpose to include the “policing purpose” is to minimise and avoid independent supervision by the Commissioner.
I should add that this position cannot be effectively challenged, because Section 28 states that if a Minister signs a certificate that equates the “national security purpose” with the “policing purpose”, then that is the end of the matter.
The dilemma associated with balancing the national security purpose with individual privacy and transparency concerns is not a new issue. Back in 1979, the Lindop Report into Data Protection (Cmnd 7341, paras 23.21-23.24) stated that the national security agencies should be subject to a data protection Code of Practice that was independently supervised.
The Report concluded that it was important to take the national security agencies out of their “hermetically sealed” environment in order to ensure that these agencies would be "open to the healthy - and often constructive - criticism and debate which assures for many other public servants that they will not stray beyond their allotted functions".
So I end this blog by asking a basic question. Do you think that the national security agencies have “strayed”? Does an expanding definition of “national security”, supported by a lack of transparency and accountability, carry the risk of encouraging such “straying”?
Currently, the national security agencies effectively decide for themselves how far the “national security purpose” stretches: this risks increasing the “national security function creep” and establishing a position that is less and less accountable by the day.
In short, I think the time has come to urgently revisit how the exemptions in Data Protection Act and FOI Act should apply national security agencies.
References: See “Human Rights Legislation and Government Policy towards national security - 2006” which explores data protection in the context of weak regulation, a lack of Parliamentary and judicial scrutiny, and the national security purpose: http://www.amberhawk.com/policydoc.asp
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Our next FOI course starts in Manchester on 26th January. As with Data Protection, these courses cover the FOI ISEB syllabus for the examination in April 2011, although you do not need to be seeking the qualification to attend.
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Note added by CP.
Some respondents contacted me to express the view that the referral of details to GCHQ could be more to do with FOIA management.
I did indeed worry about this aspect. However,
1. GCHQ are exempt from FOIA by reference of the definition of public authority” in S.84 of FOIA.
2. The status of the document re S.23 is clear – it is clearly marked as exempt from FOIA – and I checked this by going to Internal Review. This Review would have sought the views of GCHQ to the request (as demanded on the document).
3. I asked a couple of FOI officers in public authorities what they would do – they said they would send full details of the request and requestor to GCHQ
Also the main thrust of the blog is not the GCHQ referral but the nature of the national security exemption in FOIA and DP.
Posted by: CP | 16/12/2010 at 11:43 AM