Appeal to Information Tribunal 2002

On 7 May 2002 I attempted to make an appeal to the Information Tribunal under s28(6) of the Data Protection Act. However this was taken as an appeal under s28(4), since no-one had made an appeal under s28(6) before. The appeal was taken over by lawyer Simanowitz of the London firm of Bates Wells Braithwaite in October 2002. Happenings up til this time were documented in this file, which contains the first email to me from Simanowitz of 3 Oct 2002.

Simanowitz sent his first email to the wrong address, and resent it on 25 October 2002, stressing the urgency of the matter. I replied two days later stating I would soon send a written response with copies of letters from the Tribunal, and emphasising I wished to make a 28(6) appeal and not a 28(4) appeal. Simanowitz wrote back on 29 October 2002 requesting a payment on account, for which I forwarded 500 in the form of a cheque.

In my letter to Simanowitz of 30 Oct 2002 I enclosed all the papers relevant to my appeal to the Information Tribunal, explaining that MI5 had twice confirmed they have data but refused to disclose it, firstly in their response to my SAR, secondly emanating from my SAR to the Investigatory Powers Tribunal. I asked whether these amounted to grounds for a s28(6) appeal. I also asked whether anything could be done to speed up IPT's response to my SAR of over six months ago, which was unlawfully out of time.

My next letter dated 31 Oct 2002 was to the secretary of the Information Tribunal.

Dear Ms Mercer,

Thank you for your letter of 18 October. This matter is in the hands of my solicitor, but I write in order to respond within 28 days as required by your rules.

There have been two instances of MI5 claiming exemption under their s28 certificate for data they hold about me. These are;

(1) In their response dated 20 March 2002 to my application of 10 December (they were quite late in making their subject access response, which is supposed to be within forty days), they state in Appendix 1;

"24/4/97 Security Service replied to the Tribunal."

They do not specify the contents of their reply to the Tribunal, as they are required to do by s7(1)(c) of the Act. Therefore the clear implication is they must be using an exemption in the form of the Certificate. Their response (attached) was made on 20 March 2002, and I wrote to your Tribunal on 7 May 2002 applying "on the grounds that the data sought does not fall within the scope of the Certificate". There was a gap of a little over 28 days between late March and early May, but at that time I was not aware of the 28 day rule. Mr Hartley for some unknown reason chose to see my s28(6) request as being under s28(4), but the validity of my s28(6) application remains.

(2) On 16 May 2002 I made a subject access request to Investigatory Powers Tribunal. As you will see from the attached letters, Ben Hale wrote on 3 October "Security Service are taking legal advice as to whether the certificate that exempts them from providing certain information in response to subject access requests, also covers material provided by them to a third party such as the Tribunal". His statement, and IPT's subsequent refusal to provide any data other that my name / address / DOB, are clearly a claim by Security Service that they are using National Security exemption as permitted by their s28 Certificate. In this case, I am writing on 31 October, to ensure my application is within the 28 day period mandated by Tribunal rules.

An additional concern with (2) is the period of time before IPT made a response to my application - legally they have to disclose within 40 days, but in the event they took five and a half months to respond. That issue is however not relevant to my appeal to Information Tribunal.

This letter is copied to my solicitor, whose advice I await before proceeding further with the appeal. The purpose of this letter is to make clear the intended grounds of my appeal and to do so within the 28 day period from Mr Hale's letter of 3 October regarding MI5's intention to use their Certificate. I ask you to refrain from action in this appeal before my solicitor has had a chance to respond, which should be within the next few days.

Yours sincerely,

I spoke to Mercer on the phone on 20 Dec 2002. She said she had spoken to the tribunal president who said it was "not our job" to decide whether I have grounds for s28(6) appeal. The president had wondered whether in actuality I have already made a s28(6) appeal, separate to s28(4) appeal that Tribunal put forward. They would have to consider whether they will give leave for s28(6) to go ahead after time limit. Matters would be dealt with in January.

Simanowitz next wrote to me on 12 Nov 2002 stating he thought I had grounds for a 28(6) appeal. He suggested IPT's tardiness be dealt with by a complaint to the Information Commissioner. He also suggested we meet in person. My reply the following day requested a meeting early next week. I also said that because my SAR to IPT was the first they had ever received, the Information Commissioner was refusing to take any action on their late response. However IPT had been even more restrictive than MI5 in the data they had revealed because they had not disclosed the exchange with MI5 when I complained to the Security Service Tribunal, and the Information Commissioner was refusing to take any action about this inconsistency. I asked Simanowitz to write to OIC about this.

In his response the same day Simanowitz agreed to a meeting and sent me a copy of a letter he had written to the Information Tribunal. His letter asks the tribunal whether they agree I have grounds for a 28(6) appeal, and for details of other concurrent appeals. He also asks whether there are any filing deadlines.

The first meeting with Simanowitz took place at BWB on 19 Nov 2002 at 2.30pm. I explained I went to Selwyn College Cambridge 1986-89, reading computing, then Imperial College 1990. Observations of directed persecution started June/1990 with TV newscasters' particular reaction to things happening in my home. I worked in UK 1991-1994, mostly for Oxford Computer Group (OCTS/OCA); severely harassed by manager Steve Mitchell throughout 1992 leading to several weeks sickleave late 1992; returned to work Jan/1993. Mitchell's behaviour appeared particularly motivated by outside elements, they supplied him (and others) with words from my home in London and other accommodations. I emigrated to Canada in 1994 to escape; worked for AIT in Ottawa 1994-1997; was made redundant. These events continued in Ottawa, in workplace and in the area of town where I lived, in particular abuse in public by people which is ongoing (with a substantial amount of recordings by different people saying exactly the same things). I asked Simanowitz about the possible costs of a 28(6) appeal. Regarding MI5's motives in persecuting me, it looks like a grudge from someone at Cambridge, since it started less than a year after I left, and Cambridge is well connected with government and a powerful university. MI5 have never said who set them on me. Simanowitz recommended using a barrister in the appeal. I said that nothing in my life as a student could have been relevant to National Security. Simanowitz estimated total costs at around 5,000 to 7,000 including the Tribunal hearing. This turned out to be an underestimate with actual costs at time of writing (Dec/2007) of over 30,000.

Simanowitz followed up from the meeting with a letter dated 9 Dec 2002. He said he was waiting to hear from the Information Tribunal whether they now accept the basis for our claim under 28(6). He also suggested a complaint or if necessary a request for assessment to the Information Commissioner because of the inadequate response of IPT to my SAR. He further questioned why MI5 would surveille me. He gives total costs including instructing counsel, preparing the case and taking statements as "in the range of 5,000 to 7,000 plus VAT but it could even be higher than this." He asked me to speak to someone I trust regarding the advisability of taking up the case. Current costs at this point were 500.

I replied the following day that I had already discussed the advisability of such methods of complaint with someone I regarded as trustworthy, and that person did, quote, "support your right to make any reasonable investigations". I was referring to Dr Robin Lawrence who had been my psychiatrist for many years and who was expressing a medical opinion as to the investigation of MI5's actions against me. I said, "My case is a curious one in that it is difficult to prove that any tort against me has occurred, and there is a clouding effect of my admitted mental illness which on first glance would appear to explain the perceived phenomena." I also said, "My problem as regards their motivation is that I do not myself understand why they would be carrying out the sort of actions they have engaged in", because clearly National Security is of no relevance to being interactively spied on by TV newscasters, which is how the persecution started in June 1990.

Simanowitz sent Mercer on 20 Dec 2002 a reminder chasing his letter of 13 Nov 2002, and on 23 Dec 2002 she replied.

There matters rested until the New Year.

Simanowitz's next letter was dated 10 Jan 2003. He referred to Mercer's letter of 23 Dec 2002 as "somewhat inadequate" and forwarded a draft response, also a draft letter to the Information Commissioner. He said to change the appeal from 28(4) to 28(6) could require a direction under section 15 of the tribunal rules. Regarding the IPT's inadequate response to my SAR, he says they withheld all data they had acquired from MI5, and their rules regarding disclosure were incompatible with the DPA. He also sent me an invoice for 1,215+vat which exceeded the previous estimate of 500.

Simanowitz's letter to the Information Commissioner refers to my Request for Assessment on the Investigatory Powers Tribunal's very late and inadequate response, and asks OIC to reconsider his inaction. He refers to paragraph 3 of IPT's letter to me of 30 Oct 2002, which says information is exempt from disclosure without the consent of the person providing it; or if it is contrary to the public interest, or prejudicial to national security, the prevention and detection of serious crime, the economic wellbeing of the UK or the continued discharge of any of the functions of any of the intelligence services. They also claim a national security exemption under s28 of DPA. They do not even reveal the 1997 exchange between themselves and MI5, which the latter saw no harm in revealing. With the IPT even more restrictive than MI5, it is small wonder that every appeal to them has failed. Simanowitz argued that IPT's internal rules were not legally compatible with the exemptions defined in DPA. He also says IPT should not have sought MI5's advice regarding what data they could disclose, as they say in their letter of 3 Oct 2002; it makes them look like a sub-branch of MI5, instead of an independent watchdog.

Simanowitz's response to Mercer's letter of 23 Dec 2002 was made on 20 Jan 2003.

The real problem lay with Simanowitz's insistence on an appeal confined to technicalities. He had said at our meeting "I can deal with it on technicalities if you like" and I unwisely agreed. The Tribunal were trying to find out what the appeal was about, and we should have told them. Regarding the 28 day rule, I was simply unaware of it when I made my appeal; MI5's letter to Luke made no mention of a 28 day deadline.

There then followed an exchange of correspondence between the Information Tribunal and the Treasury Solicitor, accepting my appeal under 28(6).

These letters are self explanatory. I had written to the Tribunal on 31 Oct 2002 that both MI5 and IPT were claiming the national security exemption for my data, and the tribunal accepted this as grounds for a 28(6) appeal made on 7 May 2002. It was not to be treated as a 28(4) appeal on general points of law. In particular I wanted to voice the particulars of my complaint, and although other people such as Hitchens used the 28(4) process for their individual grievances it was not really designed for that, but 28(6) was. The new 42 day period began on 3 Mar 2003. Simanowitz emailed me on 26 Feb 2003 to tell me "s28(6) has been accepted."