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 website 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 as a 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 (ie the FOI applicant).
That is why I believe that, in the context of my kind of request, the disclosure of the 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?