Out-Law News | 05 Dec 2011 | 9:35 am | 6 min. read
In evidence submitted to the Leveson inquiry into press standards, Alex Owens said that the ICO had chosen not to prosecute journalists for breaches of data protection law on the basis of information uncovered during Operation Motorman because it was scared of the power of newspapers.
Operation Motorman was an investigation begun in 2002 that included raids on the offices of private investigators including those of Steve Whittamore, who kept records detailing customers of 'blagging' services and their requirements. When the ICO looked at the files of Whittamore, an investigator who operated a network of contacts skilled in accessing private information, they found that almost every newspaper group had used his services.
The ICO reported that Operation Motorman had uncovered 3,757 requests for private information on behalf of 333 journalists working for some of the UK's biggest papers, including the News of the World, whose royal reporter Clive Goodman was later found guilty of hacking into people's mobile phones to find stories.
No journalist was ever prosecuted on the evidence uncovered during Operation Motorman. Earlier this year David Smith, deputy information commissioner at the ICO, told BBC's Panorama programme that that was because the ICO "didn't have the evidence that those journalists knew beyond all reasonable doubt that the information had been obtained illegally."
Owens said that the ICO did have sufficient evidence to prosecute reporters.
"We were stopped from getting the evidence. Well, additional evidence, and I'll still contend to this day that the evidence we had was strong enough to stand on its own. In certain cases," Owens told the Leveson Inquiry (37-page / 168KB PDF) on Wednesday.
"You have 30 years of experience in the police and some considerable experience in this office, so you obviously had a good instinct for strong evidence and weak evidence," Owens said.
Under the Data Protection Act a person is generally guilty of an offence if they "knowingly or recklessly ... obtain or disclose personal data or the information contained in personal data, or procure the disclosure to another person of the information contained in personal data" without consent from the 'data controller'. A person is not guilty of an offence if they can show that unlawfully obtaining, disclosing or procuring of the personal data was justified as being in the public interest. The Data Protection Act provides an exemption from certain of its provisions where personal data is being processed for journalistic purposes, recognising the special importance of the public interest in freedom of information.
In 2006 the ICO's 'What Price Privacy Now?' report named the newspapers which used the raided investigator, and said that the Daily Mail used it more than any other paper.
It said it was against the Data Protection Act for someone to obtain and sell personal data without permission. It also said that papers' publication of stories using personal data gained by deception breached the Data Protection Act's stipulation that organisations must guard against unlawful data processing.
Earlier this year Information Commissioner Christopher Graham told a committee of MPs that the ICO had not had sufficient resources to pursue all the cases uncovered during Operation Motorman.
Owens said that no one from the ICO's investigations unit "ever spoke to a journalist" about findings made during Operation Motorman. He said he had been told that Richard Thomas, the Information Commissioner at the time, was "dealing with it ... through the Press Complaints Commission". Thomas is due to give his own evidence at the Leveson inquiry.
"Basically they'd drawn a red line and with the press and the reporters above that line and we dealt with anything below that line," Owens said.
Owens said the ICO typically had its "heads buried in the sand". "Their policy was basically: if you ignore a problem long enough, it will go away," Owens said. He said Franics Aldhouse, deputy information commissioner at the ICO at the time of Operation Motorman, had told him the newspapers were "too big" to take on.
In a witness statement (20-page / 684KB PDF) submitted to the Leveson inquiry, Owens said that the ICO had "grossly understated" the number of requests for personal information made to Whittamore by journalists in its 'What Price Privacy?' report. Owens said he had retained a personal copy of the information stored as part of Operation Motorman and said the ICO's report had thrown up "discrepancies" in the numbers it was reporting.
"Instead of there being 3,757 enquires being made by journalists to Whittamore as stated I calculated there had been over 17,000 such requests," Owens said.
"I am aware that ICO have tried to explain this by stating that certain multiple enquiries were grouped as a single enquiry. I do not know what criteria ICO adopted when formulating this league table, but no criteria can justify the discrepancies relating to the figures listed against each individual newspaper," Owens said.
Owens said the ICO had not accurately reported the number of journalists who had made requests nor the volume of those requests.
"The decision not to pursue any journalist was based solely on fear - fear of the power, wealth and influence of the Press and the fear of the backlash that could follow if the press turned against ICO," Owens said in his witness statement.
"The publication in May 2006 of ’What Price Privacy’ was no more than an attempt to lock the stable door after the horse had bolted in an effort to cover up the fact that ICO had failed in its duty to conduct a full and proper investigation into the conduct of journalists at the time when they could and should have," he said.
Marc Dautlich, data protection law expert at Pinsent Masons, the law firm behind Out-Law.com, said that the ICO should answer the allegations made by Owens.
“These are serious allegations and the ICO is entitled to and should answer the case put against it. The allegations are sufficiently serious that the ICO should officially address them,” Dautlich said.
"Reading the coverage, the first impression is that the ICO has been as cowed by certain sections of the press as other participants, which in itself would be a serious concern. There is no point the ICO seeking further enforcement powers, as Christopher Graham did most recently in relation to custodial sentencing before the Justice Select Committee in September if, when a really serious issue materialises, they are not prepared to use them. That would only serve to underline the feeling in some quarters that the ICO’s bark is worse than its bite," Dautlich said.
"At some point - if there is truth to these allegations about the ICO’s handling of the matter – and there are subsequent failures by the ICO to act effectively to enforce serious contraventions of the law - then it is surely only a matter of time before they are challenged by judicial review," he said.
The ICO, which can issue fines of up to £500,000 for serious breaches of data protection law, told Out-Law.com that it had no plans to release any more data relating to Operation Motorman.
An ICO spokesperson said the watchdog's current position on the matter remained the one expressed by deputy information commissioner David Smith in an article published in the Independent newspaper in September.
"Any suggestion that the decision not to pursue prosecutions against journalists was driven by a fear of the press is entirely false," Smith said in the Independent's report.
"We exposed the involvement of the press in the first place. Our decision was based on expert legal advice that pursuing prosecutions would not be in the public interest, because of the difficulty in proving beyond all reasonable doubt that the journalists who received information from Mr Whittamore knew it could only be obtained illegally. Even if we had managed this, the maximum penalty was likely to have been a conditional discharge. This is before considering that some reporters would have had a valid "public interest" defence," Smith said.
"Our priority was to sound the alarm. Our [What Price Privacy?] report exposed the widespread practice and was a far more effective method of raising awareness. It called for a custodial sentence to be available to the courts. Let's not forget that this is the more pressing issue. Can it be right that eight years on we still don't have a penalty that fits the crime?" he said.