Following his email of 26 Feb 2003 to tell me "s28(6) has been accepted", Simanowitz wrote to me on 27 Feb 2003 to confirm the Information Tribunal had accepted my s28(6) appeal as having been made on 7 May 2002. He also enclosed a letter from the Information Commissioner that the exemption certificate attaches to the data rather than to the organisation which processes the data, which he disputed.
I emailed him on 2 Mar 2003 agreeing for a 42 day period for the opposition to respond. I told him that re-reading the certificate I agreed with the Information Commissioner's view that it attached to the data which IPT had acquired from MI5, but some of their data they had not acquired from MI5 and they had not disclosed it to me. Also the correspondence between MI5 and IPT, which I knew about, was admitted by MI5 but not by IPT who were even more restrictive. Simanowitz wrote to the Tribunal on 3 Mar 2003 stating their proposed course of action was acceptable.
He next wrote on 5 Mar 2003. He disputes the Information Commissioner's view on personal data processed by IPT, stating it is not the same as personal data processed by MI5, even though its contents may be the same. Also I wrote to IPT's data controller questioning their refusal to reveal communications between themselves and MI5, which MI5 had seen no harm to national security in disclosing; and asking whether any certificate existed specifically covering data processed by IPT.
The Treasury Solicitor wrote to the Information Tribunal on 13 and 14 Mar 2003.
Aylett claims the s28(6) right of appeal does not exist because there are no proceedings "under or by virtue of this Act". Therefore the Tribunal cannot hear the appeal. That also was the view expressed by John Wadham of Liberty in a conversation with Simanowitz around that time. It was subsequently proven correct at the November hearing. Simanowitz insisted on arguing a technicalities point all year without any reference to the actual substance of the complaint, to "Save You Money", as he put it. I wasted a large amount of money in 2003 chasing a red herring due to Simanowitz's fundamental incompetence in not being able to see that we should have gone a more direct route with a court application for disclosure leading to a s28(6) claim, rather than arguing vacuous technicalities about whether "proceedings" existed. Also mine was the only appeal before the Information Tribunal at which the substance of the complaint was never stated, because Simanowitz said we have to "Save You Money". His conduct was Kafkaesque.
I wrote to Simanowitz on 19 Mar 2003 with a copy of the response from IPT, in which they said that no certificate existed specifically for them, their data being covered by MI5's certificate. He replied on 7 April, that he had spoken to John Wadham of Liberty who were acting for Norman Baker MP making a claim under RIPA. Wadham stated there were no "proceedings" so my claim would be rejected, which Simanowitz wrote he had not anticipated. Also on 7 April he wrote to the Tribunal enquiring about the appeal against IPT.
I emailed him the same day, saying that "proceedings" is variously interpretable, and could include a legal request such as an SAR. The Norman Baker judgment from October 2001 has paragraph 102 contemplating a possible s28(6) appeal, and says that in the opinion of the Tribunal, "the nature of those proceedings is otherwise unrestricted in terms of party, subject matter, forum etc" which seems a liberal interpretation of the term.
The Information Tribunal Secretariat wrote to my solicitor on 10 Apr 2003.
She asks whether we wish to continue with the 28(6) appeal given the Treasury Solicitor's letter. The Tribunal must decide whether it has jurisdiction, in other words whether "proceedings" existed at the time I made the appeal. BWB were granted an extension until 5 May 2003.
The solicitor replied to my email of 7 Apr 2003 on 17 Apr 2003, saying "we should proceed to a hearing on the preliminary matter of jurisdiction." An alternative would be to initiate s7(9) proceedings, with concurrent s28(6) appeal.
In retrospect we should have gone direct for the 7(9) route and saved a lot of time and money which was wasted chasing the definition of "proceedings". Simanowitz emailed me again on 1 May 2003.
This is just to let you know that John Trotter sees no negative costs implications from continuing with the appeal for consideration of the preliminary point at this stage. He has not given detailed consideration to the merits of our argument but will do so when we have received further directions from the tribunal. At that stage withdrawing from the appeal, if we did decide to do so, would not result in costs penalties against you.
I will therefore be writing to the tribunal today to confirm that we do wish to go ahead with consideration of the preliminary point.
Trotter was highly optimistic since when we did withdraw the appeal in Nov 2003 we were potentially liable for the other side's costs. It appears he had not considered the matter properly.
Simanowitz phoned me on 29 Apr 2003 at home. He told me preparation costs for the preliminary hearing would be about a thousand pounds, and that the hearing would last a few hours. We would not need a barrister; BWB would represent me. The solicitor wrote to the Information Tribunal on 1 May 2003, before the deadline of 5 May, informing them that we did wish to proceed under 28(6) and not under 28(4), both against MI5 and IPT.
I wrote to Simanowitz on 24 May 2003 encouraging him to request a formal review of my case with the Information Commissioner, as per the OIC's Policy on Handling Assessments. The solicitor wrote to the Information Tribunal Secretariat on 6 Jun 2003.
His letter covers IPT relying on the national security exemption certificate for data which has been processed on behalf of MI5.
The solicitor wrote to me again on 9 Jun 2003. He says he will pursue a review of the Information Commissioner's decision, and that OIC "is not taking sufficient action against the IPT in an area of far greater importance than most of the complaints which it must receive." He asks if I wish to seek publicity for its failure. I replied on 11 Jun 2003 that DPA98 gives OIC sole power in deciding whether assessments are carried out, and whether prosecutions are initiated, and Mr Evans had made clear he was not going to do so. Nevertheless we should apply to OIC for review, even if it only led to them restating their case. I suggested that instead of engaging in publicity with IPT we make a fuss before the Information Tribunal at the appropriate time.
Meanwhile, the Information Tribunal was making arrangements for a hearing in the near future, and sent the following fax to BWB.
Mercer writes that the Tribunal president suggests a directions hearing to establish how to proceed. The note penned by Sir Anthony Evans says that there must be "proceedings under or by virtue of this Act" in order for a 28(6) appeal to take place. He summarises the history of my appeals to his Tribunal. It is noteworthy that the Baker judgment in paragraph 102 cited a liberal interpretation of the term "proceedings."
I emailed the solicitor again on 26 Jun 2003. Apparently John Trotter (Senior Partner) had agreed to advise pro bono, but that never materialised and he did a minimum of work. Despite his earlier statement Simanowitz did not represent me at the hearing; instead he found a barrister, Tim Pitt-Payne of 11 King's Bench Walk to speak on our behalf, although counsel was hostile to me from the moment we met and seemed to prefer the other side, unsurprisingly since MI5 is a very powerful organisation and has the power to advance careers, in the legal profession as in others. Eventually I was forced to complain about Pitt-Payne on charges of corruption. His chambers whitewashed his conduct and the Bar Coucil and OLSO ruled the complaint out of time. From the Tribunal only Sir Anthony Evans was present at the hearing. I expected the question of "proceedings" existing to be decided at the July hearing.
Simanowitz emailed back the following day, saying that only he would be present from BWB, and giving costs for preparations and hearing of £ 2,000 to £ 3,000 + vat. On 3 July we heard from counsel.
I now attach a proposed short skeleton for the directions hearing tomorrow. I have not yet sent this to Robin Tam.
Robin Tam has confirmed by email that he does not propose that the Tribunal should rule tomorrow on the "proceedings" point under section 28(6).
Pitt-Payne seemed very friendly with MI5's barrister Robin Tam. He had his email address and cellphone number and was in frequent phone contact with him, as well as being "in on" the activities of the Treasury Solicitor. His friendliness to the opposition was only matched by his immediate hostility towards his own client, which was noticed by Simanowitz.
Counsel submitted a skeleton argument before the hearing as follows.
INFORMATION TRIBUNAL – NATIONAL SECURITY APPEALS
APPEALS BY MR. BOLESLAW SZOCIK
OUTLINE SUBMISSIONS FOR APPELLANT FOR DIRECTIONS HEARING
- Mr. Szocik has brought two appeals:
(1) an appeal commenced by letter dated 7th May 2002, following the Security Service’s reply (dated 20th March 2002) to his subject access request (dated 10th December 2001); and
(2) an appeal (commenced by his letter dated 31st October 2002) following the IPT’s reply (dated 30th October 2002) to his subject access request (dated 16th May 2002).
- Mr. Szocik now wishes to pursue appeals under both section 28(4) and section 28(6).† It is recognised that this is a departure from the position set out in his solicitors’ letter of 1st May 2003.
Section 28(4) appeal
- The point that Mr. Szocik now wishes to take in this appeal is set out below.
- The Security Service take the position that they are entitled to give a “neither confirm nor deny” (NCND) response both in cases where they hold data on a person making a subject access request, and in cases where they hold no data.† Prima facie to give an NCND response is a breach of section 7(1)(a) of the DPA 1998.
- It appears that the Security Service rely on the Secretary of State’s certificate as entitling them to give an NCND response, both in cases where they hold data and in cases where they hold no data.
- The Secretary of State under section 28(2) has the power to certify that exemption from the requirements of the DPA 1998 is required “in respect of any personal data”.† So the Secretary of State can certify that if the Security Service hold data of a particular kind about a data subject then various provisions of the DPA 1998 do not apply in respect of that data.† But the Secretary of State does not have any power to certify that exemption from section 27(1)(a) is required in a case where no personal data is held about a data subject.
- Thus to the extent that the Secretary of State’s certificate purports to permit an NCND response in a case where no personal data is in fact held about the data subject, the certificate should be quashed as being outside the powers of the Secretary of State under section 28(2).
Section 28(6) appeal
- †Mr. Szocik wishes to bring a section 28(6) appeal:
(1) in relation to the reliance on the Secretary of State’s certificate by the Security Service; and
(2) in relation to the reliance on the Secretary of State’s certificate by the IPT.
- It is proposed (see below) that the issue identified at paragraph 18(1) of the President’s Note dated 12th June 2003 be dealt with as a preliminary issue, but that the issue identified at paragraph 18(2) of the Note be dealt with at the full hearing of the appeals.
- In relation to the issue identified at paragraph 18(1), Mr. Szocik will rely upon the following as being “proceedings”:
(1) his subject access requests to the Security Service and the IPT; and
(2) his request to the Information Commissioner for assessment of the way in which the IPT responded to his subject access request.
Proposals for future conduct of appeals.
- It is proposed that:
(1) Mr. Szocik serve a formal notice of appeal in relation to the section 28(6) appeal, in accordance with rule 4(3);
(2) Thereafter the section 28(6) appeal be listed for a preliminary hearing:
(i) to decide whether the appeal satisfies the requirement that there be “proceedings under or by virtue of [the Data Protection Act 1998]”; and
(ii) to decide any issue as to whether the section 28(6) appeal has been brought in time;
(3) Prior to the preliminary hearing the parties are to lodge:
(i) skeleton arguments; and
(ii) a list of agreed facts;
(4) Following the preliminary hearing, the appeals under section 28(4) and under 28(6) (if and to the extent that they remain in existence following the preliminary hearing) should be listed together for a full hearing
- The Tribunal is invited at the forthcoming directions hearing to give directions as to the time to be taken at each step.
Pitt-Payne thought he had identified a bug in the legislation whereby if MI5 held no data about a subject, then it was not entitled to give an NCND response. This 28(4) appeal was entirely his idea and I knew nothing of it until immediately prior to the hearing. It added to my costs and I protested strongly to my lawyers that I did not wish to bring a 28(4) appeal, but they did not listen. Also I wanted only one preliminary hearing whereas the lawyers insisted on two directions hearings, at my increased cost.
I emailed a protest to the solicitor on 3 Jul 2003.
Thank you for your email of this morning including counsel's ideas on the directions hearing. I am worried that this appeal seems to be going beyond that which I instructed you last November and which has been our understanding since, with my finding out about it only at this late stage. In particular, I have never had any intention of making any 28(4) appeal, as you have known from the outset. I think Tim Pitt-Payne's idea is a red herring, you have said you did not understand his contention, and rather than being a bargaining chip as you described it, will merely waste time and resources which would be better spent on the main issue. Please could we keep discussion of 28(4) to a minimum tomorrow and make no undertakings as to further pursuing that course. It has no relevance to my 28(6) appeal.
Secondly, reading the Tribunal President's Note, it is clear that he intends tomorrow's hearing to be primarily on the issue of whether or not "proceedings" exist currently for 28(6) purposes, or existed at the time of my appeal(s) in 2002. He mentions and hints at this point several times in the Note. Unfortunately Tim Pitt-Payne has hatched an agreement with the Treasury Solicitor, as per your email below, for no conclusion to be reached on this point tomorrow, but for (yet another) preliminary hearing to resolve the issue. I think this is wrong and we should try to do what the Tribunal President appears to wish which is to request the Tribunal rule tomorrow, or soon and without a further preliminary hearing, on the question of whether existing SAR/requests for assessment/posited 28(4) proceedings constitute "proceedings" for 28(6).
I cannot see any purpose for a second preliminary hearing on this point. Nor is there any point on making a formal 28(6) appeal at this stage if this point is not decided, since that would needlessly waste resources. The question is one of law in general and I cannot see how our issuing specific 28(6) proceedings would clarify what is a point of law. There appears to be some guidance in the research you have done on the issue (in data protection literature) and paragraph 102 of the Norman Baker decision which describes preconditions for this type of appeal.
I look forward to meeting you at your office tomorrow morning for the hearing.
The hearing was scheduled for 10.30am on 4 Jul 2003 at Essex Court Chambers. Simanowitz's advice to me was not to go through the evidence or complaint substance at this stage; it was to be a discussion purely of points of law. At the hearing, I thought the other side (MI5/IPT) looked nervous, because they feared that MI5's activities might be exposed before an impartial judge. Their fears were groundless because the barristers talked technicalities at each other for a couple of hours and there was never any mention of the persecution or attempted murder which MI5 had been inflicting on me.