Before the November 2003 hearing

After the hearing of 4 Jul 2003 Simanowitz next emailed me on 10 July attaching a copy of the finalised directions. TPP charged only £ 600 for the hearing and the bulk of the costs went to BWB. Here are the directions formulated by the tribunal.

IN THE INFORMATION TRIBUNAL                                             Case No FIDP 02/6/47/9

 

B E T W E E N :

 

                                               BOLESLAW TADEUSZ SZOCIK                               Appellant

 

                                                                        and

 

(1)        SECRETARY OF STATE FOR THE HOME DEPARTMENT

(2)                                    THE SECURITY SERVICE

(3)                        INVESTIGATORY POWERS TRIBUNAL                   Respondents

 

                                                         __________________

                                                         MINUTE OF ORDER

                                                         __________________

 

FRIDAY 4 JULY 2003

 

BEFORE SIR ANTHONY EVANS

 

ON HEARING COUNSEL FOR THE APPELLANT AND COUNSEL FOR THE RESPONDENTS

 

IT IS ORDERED THAT:B

1.         By 4 pm on Friday 18 July 2003 the Appellant is to serve appropriate Notices of Appeal in relation to his appeal under section 28(4) of the Data Protection Act 1998 in respect of the Secretary of State for the Home Department and in relation to his appeals under section 28(6) of that Act in respect of the Security Service and the Investigatory Powers Tribunal.

2.         Time for serving or amending Respondents' Notices in respect of all appeals is extended generally.

3.         Pursuant to rule 15(4)(a) of the Data Protection Tribunal (National Security Appeals) Rules 2000 the following issues be determined as preliminary issues, namely:B

(a)        Whether a certificate signed by the Secretary of State under section 28(2) of the Data Protection Act 1998 may lawfully certify:B

(i)         that exemption from section 7(1)(a) of that Act is required for the purpose of safeguarding national security in respect of a data controller who in fact does not process personal data in respect of a person seeking information from that data controller under section 7(1) of that Act; or

(ii)        that exemption from section 7(1)(b) or section 7(1)(c) of that Act is required for the purpose of safeguarding national security in respect of a data controller:B

A.        who has informed a person seeking information from that data controller under section 7(1) of that Act that he processes personal data in respect of that person; and

B.         who in fact does not process any personal data in respect of that person other than personal data which the data controller has disclosed to that person under sections 7(1)(b) and 7(1)(c) of that Act.

(b)        Whether the Information Tribunal has jurisdiction to entertain the appeals under section 28(6) of the Data Protection Act 1998 originally lodged by the Appellant by his letters to the Tribunal dated 7 May 2002 (in respect of the Security Service) and 31 October 2002 (in respect of the Investigatory Powers Tribunal) and now formulated in the Notices of Appeal served pursuant to paragraph 1 above;

or any revision of those preliminary issues as may hereafter be directed by the Tribunal or agreed by the relevant parties.

4.         The following parties have permission to appear before the Tribunal on the hearing of the preliminary issues, namely:B

(a)        the Appellant;

(b)        the Secretary of State for the Home Department, as Respondent in the section 28(4) appeal;

(c)        the Security Service, as putative Respondent in the relevant section 28(6) appeal;

(d)        the Investigatory Powers Tribunal, as putative Respondent in the relevant section 28(6) appeal.

5.         By 4 pm on Friday 1 August 2003 the Appellant and each of the Respondents is to disclose to all other parties all correspondence between themselves and the Information Commissioner which is relevant to the Appellant's request to the Information Commissioner for an assessment of the way in which the Investigatory Powers Tribunal responded to the subject access request made by the Appellant to the Investigatory Powers Tribunal and which is not privileged from disclosure.

6.         The parties are to agree one bundle of relevant documents for purposes of the hearing of the preliminary issues and any further facts which the Tribunal should assume for the purposes of that hearing and the bundle of documents including the agreed assumed further facts is to be lodged by the Appellant with the Tribunal 28 days before that hearing. Any subsequent addition to the bundle or to the agreed assumed facts is to be agreed between the parties or directed by the Tribunal.

7.         The hearing of the preliminary issues is to be listed before a full Tribunal on a date to be agreed (target window 17 to 26 November 2003) with a time estimate of one day.

8.         The Appellant is to file and serve a skeleton argument 14 days before the hearing.

9.         The Respondents are each to file and serve a skeleton argument 7 days before the hearing.

10.        The Appellant and the Respondents are to liaise in respect of a bundle of authorities, with one joint bundle to be prepared for the purposes of the hearing.

11.        The parties have liberty to apply to the Tribunal for further or amended directions.

12.        Costs reserved.

I replied to the solicitor the same day, that I did not accept MI5's data on me as falling within "national security" and the prospects of success would depend on the substantive facts, which Simanowitz had been avoiding. s28(6) was designed to allow the Tribunal to examine data held by MI5 and see if its certificate applied, and I thought it didn't.

The solicitor wrote back on 15 Jul 2003. I quote his email in full.

Dear Tadeusz,

Thanks for this email. I have had the chance to discuss with Tim both your thoughts on s28(6) and my concerns about s28(4). I tried calling you this evening at around 7.00 but there was no reply. I did also call yesterday afternoon but you were out. I didn't leave a message as I was hoping to call back later.

In summary, Tim's view is that there is an argument "worth running" on s28(4) although it has a less than 50% prospect of success. The prospects of success with the s28(6) appeal are significantly lower than that and he would not have sufficient confidence in success to proceed with it(although this has to be qualified by the fact that the recent s28 appeal decisions have not yet been published so far as we are aware). The IPT is an appropriate forum for pursuing the complaint against the security service but although Tim shares some of your concern about the track record of the IPT which has never found in favour of a complainant, he would be willing to take it on if that would assist you. His reasons (which I support) are as follows:

1. With regard to the s28(6) appeal you raised two points:

i) That the certificate can only be deemed to "apply" to data that is exempted under the certificate and not to data that is not exempted. Data is not exempted from disclosure if it falls with s3(i) or (ii). You believe that it falls within one of these sections on the grounds that your data is not required to be exempt for national security purposes.

The problem with this is s3(i) and (ii) do not pertain when national security is not an issue but only pertain when the security services believe that national security is not an issue and they have clearly stated that they do believe that national security is an issue. What we wish to do is challenge the reasonableness of that belief, and the certificate does not seem to make provision to do that. The appropriate forum for this is the IPT.

ii) The second argument you raised is that the certificate does not apply to your data because column 1 part A does not cover all data processed by the Security Service, but only data in the relevant section of the Security Service Act 1989 as amended, which does not cover the data held on you. Column 1 part A relates to personal data processed in performance of the functions of the security service described in s1 of the 1989 Act. Section 1 sets out a number of areas of operation of the security service, the most relevant of which is the protection of national security. Your argument is that the security service's processing of the data on you is not carried out in protecting national security because you do not pose a threat to national security. In other words is it processing data on you in performance of some other other function, or simply by mistake or erroneously.

The difficulty with this argument is that part of the job of processing data for national security purposes involves an element of gathering data on individuals who are not a national security threat. This is because the security service has to respond to situations where it may not at first be clear whether or not there is a national security threat. In order to show that the processing of your data is beyond this wide meaning of "national security" you would have to cross a high threshold at the substantive hearing. You would have to deliver very convincing evidence, both that the security service have gathered the data and that in doing so they have acted outside of their remit. The prospects of succeeding in such a claim are small and would require a huge amount of work. You have seen the level of preparation that went into a directions hearing. We would need to deliver vastly more documentary evidence in advance of the hearing, then prepare a detailed argument to be heard in a hearing that could last a number of days. The costs of the other side would be very large were you to lose.

2. On the s28(4) appeal our argument can be summarised as follows:

i) s7(1)(a) gives an individual a right to be informed by a data controller whether it is processing personal data about that individual.

ii) s28 exempts data from a number of provisions, including those in s7, if the exemption is required for national security purposes.

iii) s28(2) provides that an exemption certificate granted in respect of any personal data is conclusive evidence of a s28 exemption.

iv) The security service has disclosed the existence of some personal data on you and has relied on the certificate to permit it to neither confirm nor deny whether further personal data is being processed.

v) If the security service holds no further data it is not permitted to neither confirm nor deny because that is outside of the exemption granted in s28 which applies only where personal data is being processed (i.e. if it holds no further data it follows that it cannot be processing any further data and therefore cannot be exempt from a provision applying only to the processing of data).

The weakness with this argument is that the other side will argue that an exemption from the s7(1) obligation to disclose whether data is being processed must apply to situations where both data is and is not being processed. That is because, if this were not the case and the exemption only applied where data was being processed then the provision is meaningless. Otherwise, if a data controller were legitimately to rely on the exemption and state that it is refusing to disclose whether it is processing data, an individual would automatically be able to infer that it was processing data (because if the data controller was not processing data then it would not be able to rely on the exemption). Therefore, using a purposive construction, the only way that an exemption from s7(1) can be meaningfully construed is to say that the exemption must apply whether or not a data controller is processing data. This would mean that an exemption certificate can lawfully be applied when a data controller is not processing data. This weakness applies equally whether we go down the 7(1)(a) or the 7(1)(b)&(c) route.

The counter to this argument is that the tribunal is not entitled to adopt a purposive construction, but must interpret the wording of the 1998 Act narrowly particularly where a threat to human rights is involved (as here). A narrow interpretation would accept our arguments.

In reality the tribunal is entitled to choose whether it adopts a wider purposive construction or a narrow construction since both are valid methods of judicial interpretation. If it is inclined to favour an individual's rights over the state's professed needs then it will find in your favour. Because of the significant impact of finding in your favour however, Tim thinks that prospects of succeeding on this point are less than 50%.

3. Tim's view is that the prospects of succeeding with the 28(6) are so low that, especially when set against the potential costs that you could incur, he is unwilling to take that appeal on. I also cannot take it on if he will not. Of course it is open to you to continue the appeal on your own or with any other legal representation you may obtain, but I will not be able to assist you. Tim is willing to assist with the s28(4) appeal although you need to be aware there too that there is a risk of significant costs being awarded against you. Even if you win at the tribunal stage the government will almost certainly appeal to the court of appeal, which would add to the costs against you if you lose. If it gets to the court of appeal stage we may be able to get a civil liberties organisation (such as Liberty) to back the case which would at least mean they would cover money owed to the other side if you lost. However these organisations have a limited budget and may not be interested in this case. If your own funds ran very low then there is also a possibility of being able to obtain legal aid for the appeal case. Tim is also willing to assist, if required, in an IPT application.

Tadeusz I know this will be a disappointment to you and that it must be frustrating to be stymied at this relatively early stage having spent a considerable sum of money so far and not even had an opportunity to air your evidence which forms the basis of your complaint. However, if we stop at this point the costs to date are relatively minor compared to what they will be if we continue and lose which is the likely outcome of a s28(6) appeal. Tim is also of the opinion that if we offer to the other side to withdraw the claim at this stage on the basis that each side bears its own costs, the other side would probably and would not to push to recover its costs, even though it would be entitled to do so.

Please do call me tomorrow when you have had a chance to think this through and let me know how you would like to proceed. i will be in a meeting until 11.00.

Regards,

Lawrie

Needless to say I was very disappointed with this letter. TPP had been hired to progress a DPA s28(6) appeal and was proposing to drop it instead, and Simanowitz was running away also, without even listening to what the case was about. Throughout the case Simanowitz was very avoidant of the complaint substance, which he claimed was to "Save You Money", and he did in fact save an awful lot of my money purely on technicalities without hearing the complaint at all. This is in sharp contrast to every other appellant to the Information Tribunal; they were all allowed to say what their cases were about, even though they were only making 28(4) appeals which were supposed to be on points of law. TPP was proposing instead an appeal to the completely corrupt Investigatory Powers Tribunal which was hostile to all complainants and inevitably found in favour of MI5.

There were several other s28 decisions being published at this time and the solicitor sought an extension to allow those decisions to be considered, which was granted, by which time TPP had written a draft notice of appeal, both under 28(4) and under 28(6) against MI5 and IPT. Unfortunately both the solicitor and the barrister insisted on not finding out what the case was about, and therefore the notice of appeal contained none of the substance, apart from a statement that I had not engaged in any activities counter to national security. "My" lawyers were only concerned with the technicalities point of whether "proceedings" existed as required for a 28(6) claim to take place.

The date for the next hearing was set for 20 Nov 2003. Meanwhile the Gosling and Hitchens decisions were published, in which the Information Tribunal directed the complainants on to the Investigatory Powers Tribunal, which I did not wish to appeal to because of its bias. The deadline for submitting the Notice of Appeal was extended to 22 August, and on 21 August Simanowitz sent me TPP's revised document, which was his 28(4) argument and 28(6) against IPT only, dropping the 28(6) against MI5 without my agreement.

The same day I enquired of the solicitor what evidence we would be allowed to present to the tribunal, and he passed my question on to Ms Mercer. I told the solicitor that I wanted to give substantive evidence to the tribunal that my case did not present national security aspects. Other complainants had done so, but "my" lawyers were against it. There followed a rapid discussion between myself, the solicitor and the barrister. Simanowitz claimed that Hitchens and Gosling showed that 28(6) did not allow MI5's decisions to be challenged. It only allowed for an appeal against the applicability of a certificate if it had been clearly misapplied. He said;

It is now clear to me (new things always come to light on rereading) that the caveat in the certificate merely permits the Security Service to consider the data and then determine that national security doesn't apply. It does not oblige them to do so. The fact that they either haven't considered the data, or that if they have considered it they haven't determined that national security/NCND shouldn't apply does not mean they have not acted in accordance with the certificate.

He added;

In the light of this I suggested to you three options:

1. To drop the appeal to the Information Tribunal altogether (and proceed with an application to the IPT if you wish)

2. To appeal to the Information Tribunal in the form provided by Tim (and if you wish at the same time to apply to the IPT)

3. To proceed with your application to the Information Tribunal including the s28(6) appeal against the Security Service.

If you take the third option Tim has stated that he will not be able to represent you which also places me in difficulties. There would be no objection to you submitting the notice in the form first drafted by Tim, although he would not wish to be associated with it, and I too would not feel able to continue to represent you without having counsel on board. It would be open to you to instruct alternative lawyers.

I should emphasise that Tim is optimistic about you bringing a claim to the IPT, especially in the light of the Gosling and Hitchens decisions but of course success is by no means guaranteed.

TPP was "optimistic" about IPT because he knew our appeal there would fail. He was corruptly playing for the other side, quite openly by this time, with the absolute intention of preventing an appeal against MI5 to the Information Tribunal, which we might win.

In my reply I told the lawyers that Hitchens and Gosling were NCND cases which the Tribunal had no jurisdiction over, but mine was not, because MI5 had admitted the existence of some data, namely the correspondence between themselves and the SST. I further stated that I believed MI5 had been acting outside of their legal remit, which would allow them an exemption on the basis of non self incrimination, but it would be improper for them to use such an exemption.

Meanwhile Ms Mercer replied to the question of what evidence we could present to the tribunal, as defined in paragraph 7(2)(b)(iii) of the Tribunal Rules. The paragraph requires the Minister to present evidence on which he intends to rely when opposing the appeal. There had been no other 28(6) appeals but in 28(4) appeals the Minister had presented witness statements and documents. The appellant is not required to submit evidence, and some 28(4) appellants had, some hadn't.

TPP sent the following email to Simanowitz on the same day.

Dear Lawrie

I have considered the points that Mr Szocik makes, and we have also discussed them over the telephone.

My view remains as stated in my previous email.

I understand the point that Mr Szocik's case is not a straightforward NCND case. The Security Service has admitted that it holds certain data in relation to him that it is not willing to disclose. However, I do not think that this alters the fundamental point. In the Gosling case, the Information Tribunal was responding to a challenge to the SoS's certificate. The way in which that challenge was put, was that the certificate was unlawful because it left to the Security Service the question whether data should be disclosed in any particular case, with no effective way of challenging that decision. The Information Tribunal said that there was a way of challengingn the Security Service's decision, by going to the IPT.

If the Information Tribunal had thought that section 28(6) played a role in challenging the Security Service's decisions in particular cases then they would have said so: this would have been highly relevant to the issue that they had to decide under section 28(4).

In short, in my view the Information Tribunal has made it clear that section 28(6) cannot be used in the way that we want to use it, to challenge the Security Service's decision in relation to an individual case.

Kind regards

Timothy Pitt-Payne

TPP is lying. At the July hearing the tribunal president explicitly said that it was the communications between MI5 and SST which would be disclosed to the tribunal in response to a 28(6) appeal. Later, at the November hearing, the tribunal were very keen to hear the substance of my case with a view to seeing if a challenge to MI5's decision not to release data was possible. Pitt-Payne had his own agenda which did not coincide with mine, but rather with that of the opposition. Simanowitz went along with the barrister and told me he would not agree to their names being put to any 28(6) appeal against MI5.

I told Simanowitz that the Information Tribunal could not escape the 28(6) responsibilities it had been entrusted with by Parliament for non-NCND cases. The Investigatory Powers Tribunal had been described in Parliament as a "black hole" into which complaints went never to be seen again. TPP's point about the Tribunal saying nothing about using 28(6) to challenge MI5 decisions was wrong, because they had considered 28(6) in paragraph 102 of Baker. I told him I recognised the lawyers were leaving the appeal, but wished to retain BWB for ongoing advice and other matters.

I personally submitted the following notice of appeal, which had been mostly drafted by TPP, to the tribunal in time for the deadline.

IN THE INFORMATION TRIBUNAL (NATIONAL SECURITY APPEALS PANEL)

BETWEEN

BOLESLAW TADEUSZ SZOCIK

Appellant

 

And

 

(1)   THE SECURITY SERVICE

(2)   THE INVESTIGATORY POWERS TRIBUNAL

 

APPELLANT’S NOTICE OF APPEAL

 

            THE APPELLANT

1.     The Appellant is Mr. Boleslaw Tadeusz Szocik of 45 Englewood Road, London SW12 9PA.

THE RESPONDENTS

2.     This appeal is brought under section 28(6) of the Data Protection Act 1998.

3.     The Respondents to the appeal under section 28(6) of the Act are the Security Service (represented by the Treasury Solicitor, Queen Anne’s Chambers, 28 Broadway, London SW1H (reference LT2/5375A/AXA/D1). and the Investigatory Powers Tribunal (represented by the Treasury Solicitor, address as above, reference LT32075K/LXM/D1).   

THE PARTIES

4.     In this Notice of Appeal the parties are referred to as “Mr Szocik”, “the Security Service” and “the IPT”.

GROUNDS OF APPEAL UNDER SECTION 28(6):  SECURITY SERVICE

5.     On 10th December 2001 Mr. Szocik made a subject access request to the Security Service under section 7 of the Data Protection Act 1998.  He provided further information in relation to that request by a letter dated 26th January 2002.

6.     On 20th March 2002 the Security Service replied to that request.  The Security Service disclosed that it processed certain information in relation to Mr. Szocik (set out at Appendix 1 to the letter) but refused to confirm or deny whether it processed any further data in relation to Mr. Szocik and it refused to disclose any further data in relation to Mr. Szocik.  The Security Service relied upon a certificate issued by the Secretary of State under section 28(2) of the Data Protection Act 1998.

7.     The certificate relied upon by the Security Service was the certificate mentioned above issued by the Secretary of State on 10th December 2001.

8.     Mr. Szocik engaged in correspondence with Information Commissioner from 4th January 2002 onwards regarding the subject access request to Security Service, making a formal request for assessment on 9th May 2002. Information Commissioner responded on 19th July 2002, clarifying that the Information Tribunal was the correct avenue of appeal for persons directly affected by a Certificate.

9.     There were “proceedings” in existence for the purpose of section 28(6) of the Act:

(1)   because the subject access request and the reply to that request constituted “proceedings” for the purpose of section 28(6) of the Act; and/or

(2)   because Mr. Szocik’s correspondence with and request to the Information Commissioner for an assessment of the way in which the Security Service responded to his subject access request constituted “proceedings” for the purpose of section 28(6) of the Act.

10.  The certificate relied upon by the Security Service did not apply to the data sought by Mr. Szocik for the reasons set out below.

(1)   There were no grounds whatsoever upon which the Security Service could determine that the non-communication to Mr. Szocik of any further data processed in relation to him, or of the fact that additional data was processed in relation to him, was required for the purpose of safeguarding national security.  Mr. Szocik is not and has not at any time been involved in any activities whatsoever that have any national security implications.

(2)   Further or alternatively, any further data processed in relation to Mr. Szocik was not processed in performance of any of the functions of the Security Service described in section 1 of the Security Service Act 1989.  Mr. Szocik is not and has not at any time been involved in any activities whatsoever that have any national security implications.                 

GROUNDS OF APPEAL UNDER SECTION 28(6):  IPT

11.  On 16th May 2002 Mr. Szocik made a subject access request to the IPT under section 7 of the Data Protection Act 1998.

12.  On 26th August 2002  Mr Szocik made a request for assessment to the Information Commissioner relating to the processing of data in relation to him by the IPT.

13.  On 30th October 2002 the IPT replied to the subject access request.  The IPT disclosed that it processed certain data in relation to Mr. Szocik.  It refused to confirm or deny whether it processed any other personal data relating to him and refused to disclose any further personal data relating to him.  It purported to rely upon the national security exemption in section 28 of the Act though it did not specifically refer to any certificate issued by the Secretary of State under section 28(2) of the Act.

14.  A letter dated 29th January 2003 (wrongly dated 2002) from the Information Commissioner to Mr Szocik’s solicitor made it clear that the IPT was relying, in the context of the Information Commissioner’s assessment, on a certificate issued by the Secretary of State under section 28(2) of the Act.

15.    A further letter dated 18th March 2003 from the IPT to Mr. Szocik made it clear that the IPT purported to rely on a certificate issued by the Secretary of State under section 28(2), in response to Mr. Szocik’s subject access request.

16.  The certificate relied upon by the IPT was the certificate mentioned above issued by the Secretary of State on 10th December 2001.

17.  There were “proceedings” in existence for the purpose of section 28(6) of the Act:

(1)   because the subject access request and the reply to that request constituted “proceedings” for the purpose of section 28(6) of the Act; and/or

(2)   because Mr. Szocik’s request to the Information Commissioner for an assessment of the way in which the IPT responded to his subject access request constituted “proceedings” for the purpose of section 28(6) of the Act.

18.  The certificate relied upon by the IPT did not apply to the data sought by Mr. Szocik for the reasons set out below.

(1)   The Secretary of State’s certificate applied to data processed by the Security Service but not to data processed by the IPT.

(2)   Further or alternatively, the IPT did not indicate that the Security Service had considered whether national security required that the IPT:

(a)   should not communicate to Mr. Szocik whether it processed any data about him other than the data disclosed; or

(b)  should not disclose to Mr. Szocik any data other than the data disclosed.

Under section 3(i) and (ii) of Annex A of the Secretary of State’s certificate, these issues ought to have been considered by the Security Service (not the IPT) before the IPT could rely upon the Secretary of State’s certificate.

(3)   Further or alternatively, there were no grounds whatsoever upon which the Security Service or the IPT could determine that the non-communication to Mr. Szocik of any further data processed in relation to him, or of the fact that additional data was processed in relation to him, was required for the purpose of safeguarding national security.  Mr. Szocik is not and has not at any time been involved in any activities whatsoever that have any national security implications.

(4)   Further or alternatively, any further data processed by the IPT in relation to Mr. Szocik was not processed in performance of any of the functions of the Security Service described in section 1 of the Security Service Act 1989.  Mr. Szocik is not and has not at any time been involved in any activities whatsoever that have any national security implications.   

            THIS NOTICE OF APPEAL

 

  1. This Notice of Appeal is serviced pursuant to directions made by the President of the National Security Panel of the Information Tribunal at a directions hearing on 4th July 2003.

 

 

IN THE INFORMATION TRIBUNAL (NATIONAL SECURITY APPEALS PANEL)

BETWEEN

BOLESLAW TADEUSZ SZOCIK

Appellant

 

And

 

(1)  THE SECURITY SERVICE

(2)  THE INVESTIGATORY POWERS TRIBUNAL

APPELLANT’S NOTICE OF APPEAL

I dropped TPP's 28(4) argument which I saw as irrelevant to my case and kept the two 28(6) appeals. I also told the tribunal I would not seek to re-instate any 28(4) appeal; however this is not the same as saying I might not make a fresh 28(4) appeal.

BWB were still talking to me on an informal basis, and I met Simanowitz on 10 Sep 2003. I brought a draft application to the Bar Pro Bono Unit to find a free or inexpensive barrister to replace TPP, and told Simanowitz I wanted to inform him of the substance of my complaint. I also asked for a second barrister's opinion, and suggested Andrew Nicol of Doughty Street Chambers, who had acted for Norman Baker MP in his appeal before the Information Tribunal, which he had won. Simanowitz sent the following Instructions to Counsel to Nicol on 1 Oct 2003.

                                                           

 

 

IN THE MATTER OF:

 

 

                                                            Boleslaw Szocik

                                                                     

and

 

                                                            (1) The Security Service

                                                            (2) The Investigatory Powers

      Tribunal

 

 

                                                            ______________________________

 

                                                            INSTRUCTIONS TO COUNSEL

                                                            ______________________________

 

 

 

 

 

 

                                                            To:     Mr Andrew Nicol

Doughty Street Chambers

DX 223 Chancery Lane

 

 

 

 

 

 

 

 

 

                                                            Bates, Wells & Braithwaite

                                                            Cheapside House

                                                            138 Cheapside

                                                            London  EC2V 6BB

 

                                                            Tel     (020) 7551 7796

                                                            Ref:    LDS/017639.2

                                                            Date:  30th September 2003


IN THE MATTER OF:

 

BOLESLAW SZOCIK

 

 

 

INSTRUCTIONS TO COUNSEL TO REPRESENT BOLESLAW SZOCIK AT THE INFORMATION TRIBUNAL (NATIONAL SECURITY APPEALS PANEL)

 

 

 

Counsel has herewith:

 

- a bundle of documents as follows:

 

 

Date

Description

1.         

Undated

Schedule of Documents drafted by Bates, Wells & Braithwaite

2.         

2 June 1997

Letter from Security Service Tribunal (predecessor of Investigatory Powers Tribunal)

3.         

10 December 2001

Letter from Boleslaw Szocik to Security Service exercising his rights as a data subject

3(a)

19 December 2001

Letter from Security Service to Boleslaw Szocik acknowledging subject access request and requesting completion of form

4.         

4 January 2002

Letter from Boleslaw Szocik to Information Commissioner

4(a)

25 January 2002

Letter from Information Commissioner to Boleslaw Szocik

5.         

26 January 2002

Letter from Boleslaw Szocik to Security Service providing further information and asking further questions.

5(a)

30 January 2002

Letter from Security Service to Boleslaw Szocik acknowledging receipt of letter of 26 January

5(b)

28 February 2002

Letter from Security Service to Boleslaw Szock requesting different payee

6.         

4 March 2002

Further letter from Boleslaw Szocik to Security Service

7.         

14 March 2002

Letter from Boleslaw Szocik to Security Service

8.         

20 March 2002

Letter from Security Service to Boleslaw Szocik responding to subject access request, disclosing some data and invoking exemption

9.         

25 March 2002

Letter from Boleslaw Szocik to Information Commissioner

9(a)

18 April 2002

Letter from Information Commissioner to Boleslaw Szocik replying to letter of 25 March

10.      

7 May 2002

Letter from Boleslaw Szocik to Information Tribunal

11.      

9 May 2002

Letter from Boleslaw Szocik to Information Commissioner completing request for assessment regarding failure by data controller to disclose data

12.      

10 May 2002

Letter from Information Tribunal to Boleslaw Szocik acknowledging appeal under s28(4) DPA 1998

13.      

16 May 2002

Letter from Boleslaw Szocik to Investigatory Powers Tribunal making subject access request

14.      

22 May 2002

Letter from Boleslaw Szocik to Information Tribunal

14(a)

17 June 2002

Letter from Information Commissioner to Boleslaw Szocik

15.      

Undated

Respondents’ notice to Information Tribunal appeal

16.      

8 July 2002

Letter from Investigatory Powers Tribunal to Boleslaw Szocik in response to subject access request

16(a)

19 July 2002

Letter from Information Commissioner to Boleslaw Szocik responding to request for assessment re Security Service and advising that application should be made to Information Tribunal

17.      

Undated

Information Tribunal letter to all appellants to the national security panel

18.      

22 August 2002

Letter from Information Commissioner to Boleslaw Szocik asking for completed request for assessment

18(a)

26 August 2002

Request for assessment from Boleslaw Szocik to Information Commissioner

19.      

28 August 2002

Letter from Home Secretary to Boleslaw Szocik

19(a)

30 August 2002

Information Commissioner to Boleslaw Szocik, acknowledgement letter

20.      

3 September 2002

Letter from Boleslaw Szocik to Information Tribunal

21.      

5 September 2002

Letter from Information Tribunal to Boleslaw Szocik

22.      

3 October 2002

Letter from IPT to Boleslaw Szocik

23.      

18 October 2002

Letter from Information Tribunal to Boleslaw Szocik

24.      

30 October 2002

Letter from IPT to Boleslaw Szocik

25.      

31 October 2002

Letter from Boleslaw Szocik to Information Tribunal including appeal against non-disclosure by Information Tribunal

26.      

4 November 2002

Letter from Information Commissioner to Boleslaw Szocik

27.      

13 November 2002

Letter from Bates, Wells & Braithwaite to Information Tribunal

28.      

20 December 2002

Letter from Bates, Wells & Braithwaite to Information Tribunal

29.      

23 December 2002

Letter from Information Tribunal to Bates, Wells & Braithwaite

30.      

20 January 2003

Letter from Bates, Wells & Braithwaite to Information Tribunal

31.      

29 January 2003 (wrongly dated 2002)

Letter from Information Commissioner to Bates, Wells & Braithwaite

32.      

17 February 2003

Letter from Information Tribunal to Bates, Wells & Braithwaite confirming date of appeal as 7 May 2002

33.      

17 February 2003

Letter from Information Tribunal to Treasury Solicitor

34.      

20 February 2003

Letter from Treasury Solicitor to Information Tribunal

35.      

21 February 2003

Letter from Information Tribunal to Treasury Solicitor

36.      

26 February 2003

Letter from Treasury Solicitor to Information Tribunal

37.      

3 March 2003

Email from Bates, Wells & Braithwaite to Information Tribunal

38.      

13 March 2003

Letter from Treasury Solicitor to Information Tribunal

39.      

14 March 2003

Letter from Treasury Solicitor to Information Tribunal

40.      

    March 2003

Draft form letter from Boleslaw Szocik to IPT consequently sent in similar form

41.      

18 March 2003

Letter from IPT to Boleslaw Szocik confirming its reliance on national security exemption certificate

42.      

7 April 2003

Letter from Information Commissioner to Bates, Wells & Braithwaite

43.      

7 April 2003

Letter from Bates, Wells & Braithwaite to Information Tribunal

44.     1

10 April 2003

Letter from Information Tribunal to Bates, Wells & Braithwaite

45.      

16 April 2003

Letter from Bates, Wells & Braithwaite to Information Tribunal

46.      

16 April 2003

Letter from Information Tribunal to Bates, Wells & Braithwaite

47.      

1 May 2003

Letter from Bates, Wells & Braithwaite to Information Tribunal

48.      

2 June 2003

Letter from Information Commissioner to Bates, Wells & Braithwaite confirming IPT’s reliance on national security exemption certificate

49.      

6 June 2003

Letter from Bates, Wells & Braithwaite to Information Tribunal

50.      

18 June 2003

Letter from Information Tribunal to Bates, Wells & Braithwaite enclosing Presidents’ note

51.      

Undated

National Security Exemption Certificate and accompanying notes

52.      

 

Decision Baker v Home Secretary

53.      

18 July 2003

Tribunal Directions

54.      

1 August 2003

Decision Gosling v Home Secretary

55.      

4 August 2003

Decision Hitchens v Home Secretary

56.      

 

Notice of Appeal

 

 

Background Facts

1.               Counsel is instructed on behalf of Boleslaw Szocik – an individual living in England.

2.               Counsel is asked to provide an opinion on the prospects of an appeal which the client is bringing against The Security Service under s28(6) Data Protection Act 1998 (“the Act”) and whether the Investigatory Powers Tribunal would be appropriate as an additional or alternative forum for the client’s complaint.  The notice of appeal is document 56 in the bundle.  This appeal was served by Mr Szocik further to the President’s directions (document 53) and supersedes the client’s letter of 7 May 2002 (document 7) which was originally treated as notice of appeal and responded to by the Home Secretary (document 15).  The current appeal is brought only under s28(6) and so the Security Service and not the Home Secretary is now the correct Respondent.  Under the same notice of appeal the client is also bringing a claim against the Investigatory Powers Tribunal (again under s28(6)) but counsel’s opinion is not sought in this regard.

3.               The client’s appeal is against the use by the Security Service, under s28(2) of the Act, of a national security exemption certificate, (“the Certificate”) to exempt the Security Service from disclosing personal data some of which it has admitted to holding. The Certificate is attached as document 51.

4.               The matter relates to a request by the client, exercising his right as a data subject under s7 of the Act to be provided with copies of personal data of which he is the subject and which is held by the Security Service as Data Controller.

5.               Instructing solicitors have not yet received full details from the client as to what information he believes is held on him by the Data Controller or why he believes it is being held.    At present the issues that are being considered are matters of principle and of law.

6.               In response to the subject access request by the client, the Data Controller replied supplying a small amount of personal data, referring to but not disclosing other data it holds, and claiming that the Certificate gave it the right to neither confirm nor deny the existence of any further data (see document 8).

7.               The client has appealed under s28(6) of the Act against the Respondent’s use of the Certificate.    The Information Tribunal has informed us that this is the first case to be brought under this section of the Act. 

8.               The client has been advised by us on bringing a claim under s28(4) of the Act and has decided against doing so.

9.               A useful chronology is set out in paragraph 11 of the President’s note (document 50).  Since the directions were given subsequent to that chronology the client has submitted his notice of appeal.  As the client’s appeal relates only to s28(6), the preliminary issues identified in paragraph 3(a) of the minute of order are no longer relevant, leaving only the issues identified in paragraph 3(b) to be determined. 

10.           Subsequent to the client’s service of his notice of appeal pursuant to the President’s directions the Respondent has not served a notice and no documents have been exchanged.

General and Background Issues

11.           For the assistance of counsel instructing solicitors are also attaching a chronology we drafted shortly after being instructed, before we sent or received any correspondence on the matter (document 1).   This supplement to some extent overlaps with the President’s chronology but does not come up to the present date.

12.           There are some general questions which relate to the powers available to a data controller under the national security exemption certificate. In particular the principle, cited in paragraph 2.2 of the certificate, of neither confirming nor denying whether data is being processed.  

13.           Unless it is applied with proper scrutiny this principle appears to undermine basic human rights principles and in particular the right to privacy which it is the intention of the Act to enshrine. 

14.           Further, it seems difficult to understand how the principle can be justified unless it is rigorously maintained in all circumstances where the Certificate applies.   As soon as there are circumstances in which it is admitted by a party to which the Certificate applies that data is or is not held this allows for an inference to be drawn in circumstances where no such admission made.  Yet the Certificate itself acknowledges in paragraph 2.3ii) and 3(i) that there may be circumstances in which adherence to the principle is not required (indeed, as referred to in paragraph 6 above the Data Controllers did disclose some data in response to the client’s request).  This acknowledgment in paragraphs 2.3ii) & 3(i) has two implications.   The first is that it opens up the possibility for challenging the validity of the Certificate itself (which would be a s28(4) appeal – the route which is currently rejected by the client).

15.           The second implication is that, in the light of paragraph 2.3i) and 3(i) requiring the Security Service to examine whether adherence to the principle is necessary,  there is clearly scope for information to be disclosed where its non-disclosure is not necessary for the purpose of safeguarding national security.  Furthermore some of the data falls under paragraph 3(ii) to which the policy of neither-confirm-nor-deny does not apply, and again there is scope for disclosure where non-disclosure is not necessary for national security.  

16.           Counsel’s attention is drawn to the Home Secretary’s notice opposing the client’s original appeal (document 15) in which it is stated that the lawfulness of the neither-confirm-nor-deny policy was upheld in the case of Baker v Secretary of State.

17.           By way of (relevant) background to this appeal, on 9th May 2002 the client exercised his right under the Act to ask the Information Commissioner to investigate a failure by a data controller to comply with the Act, namely the failure by the Security Service to comply with the request by the client to be provided with a copy of his data (document 11).  The Information Commissioner stated in a letter dated 19th July 2002 that the Security Service did not have to comply with the subject access provisions in the Act on the basis that it is relying on the Certificate (document 16a) which exempts it from complying.  This process/action has not been exhausted and the client does intend to invoke the Information Commission’s review procedure requiring it to investigate the matter further.    This is relevant because it may be arguable that this process/action comes within the meaning of “proceedings” for the purpose of s28(6) of the Act (see paragraph 18 below).

Issues at the Preliminary Hearing

18.           The President’s note (document 50) sets out the background to the present situation and his understanding of the issues.   We accept the content of that note in so far as it applies to the client’s subsequent appeal subject to the following comments (using the paragraph numbering in that letter).

10

It is not clear on what basis the President makes the claim that proceedings need to be “pending when the appeal is brought”.   This could be based on the Norman Baker decision (document 52) which in paragraph 102 states that s28(6) contemplates “extant proceedings under or by virtue of the Act;  the nature of those proceedings is otherwise unrestricted in terms of party, subject matter, forum etc.”   

In the letter from the Treasury Solicitor dated 13 March 2003 (attached as document 38) the Treasury solicitor suggests that appropriate proceedings which would enable our client to come within s28(6) would be proceedings brought under s7(9) of the Act.  If this were the case then would it be possible between the directions hearing on 4th July and a full hearing of the tribunal for the client to launch such a claim in order to satisfy the tribunal as to the client’s standing?

14

The client’s position is that his subject access request was “proceedings” within the meaning of s28(6) failing which his correspondence with the Information Commissioner and subsequent requests for assessment were proceedings.

16.

This question was resolved at the directions hearing when permission was given to submit a revised notice of appeal.

18

(1)     As discussed in relation to paragraph 14.

(2)     Since the Respondent has already disclosed the existence of data in its letter of 20 March 2002 (document 8) then it is hard to see how “neither confirm nor deny” can apply to any of the letters referred to in Appendix 1 of that letter.  Nor is the President’s suggestion that this data is “innocuous” accepted.  The issues appear to be whether, in the interest of national security, where an individual may not in any sense present a threat to national security, the Security Service is technically entitled to apply its neither-confirm-nor-deny policy in the case of data not referred to in the Appendix and in the case of data referred to in the Appendix [whether] it can refuse to disclose it.

 

Further Issue

19.           If counsel believe there is no (or limited) scope for succeeding in an application of this nature before the Information Tribunal, then in what circumstances could an application successfully be brought under s28(6) (i.e. what is the purpose of this section)?

Instructions

20.           Counsel is instructed to advise on the questions raised in this letter and in particular:

a)     Whether he believes there exist or existed proceedings within the meaning of s28(6) so as to enable the substantive appeal to proceed beyond the preliminary hearing;

b)    Whether there are any other jurisdictional issues which are likely to lead the Information Tribunal to decline to hear the appeal beyond the preliminary hearing;

c)     Whether the client has good grounds in law for obtaining a decision from the Information Tribunal that, under s28(6), the certificate does not apply to the data held on the client;

d)    If counsel’s response to c) above is in the negative what the client’s prospects for success at the Investigatory Powers Tribunal would be, bearing that the IPT has itself accepted that no applicant has ever succeeded in bringing a complaint before it (document 16).

21.           If Counsel needs further information, please telephone Lawrence Simanowitz of instructing solicitors to discuss.

 

Bates, Wells & Braithwaite

30th September 2003

 

Nicol gave his advice on 6 Oct 2003, at a cost of £ 2000 + vat.

As usual the big mistake we made was not telling Mr Nicol the substance of the complaint, so he was unable to deliver a proper opinion. Simanowitz was still carefully avoiding hearing the complaint; while telling me how "committed" he was to my case, he didn't want to know what it was about, in order to "Save You Money" by not spending several hours discussing the material.

I replied to the solicitor on 12 Oct 2003, that I accepted Nicol's view that proceedings did not exist and proposed to write to the tribunal to advise them of this. I proposed a 7(9) application to a court leading to a correctly formulated 28(6) appeal. Mr Nicol said in paragraph 14 of his advice that "the first question would be whether it was personal data processing in performance of the functions of the Security Service described in s1 SSA". This we would contest. I expressed no confidence in the ridiculously corrupt Investigatory Powers Tribunal.

Simanowitz replied the following day that conceding the "proceedings" question meant my application would be thrown out. I wrote again to him on 18 Oct 2003 reminding him that the deadline for a response to the tribunal for the November hearing was 23 Oct, and we must make a response before then. In his letter of 22 Oct he conceded to Nicol's view that proceedings did not exist, but he advised against the material complaint being heard before the tribunal. He also preferred an appeal to IPT, which I did not.

I wrote to Ms Mercer on 22 Oct 2003 conceding the proceedings question and requesting that the hearing of 20 November not take place, so that I could make a fresh appeal based on 7(9) court proceedings. I asked whether the current appeal could be suspended pending a 7(9) application, or whether a fresh appeal would be necessary.

It became clear that the tribunal intended the hearing to go ahead, and the Treasury Solicitor acting for MI5 intended to put a stop to it, lest the grounds of my appeal be disclosed to the tribunal. Mr Aylett wrote two offensive letters threatening financial ruin if the hearing went ahead.

The letters blamed me personally for the behaviour of "my" lawyers, and betrayed an anxiety about the hearing going ahead. I ignored Aylett's offensive communications. Ms Mercer wrote to me on 14 Nov 2003 directing that a hearing should take place on 20 Nov. She said;

This hearing will take place before Sir Anthony Evans, Mr James Goudie QC and Mr Kenneth Parker QC, and will consider what steps could be taken to resolve the issues arising in your case without the need for you to bring proceedings in the High Court.

I would be grateful if you could acknowledge receipt of this email by return, or by a telephone call as time is short.

This was a complete surprise to me and at very short notice. MI5's response was immediate; they stepped up the real-world persecution and got my so-called "friend" Choroszewski to phone me up and abuse me, to disorient me. I emailed Simanowitz on the morning of 16 November, saying that the Tribunal were presumably intent on finding out whether my appeal had any substance or whether my data was merely "innocuous" as the president had suggested at the July hearing. I asked Simanowitz to turn up at the hearing and suggested Mr Nicol represent me since he had read the documentation on the case. The solicitor seemed very reluctant to attend the hearing at which his technicalities point regarding proceedings would be surrendered.

Dear Tadeusz,

Thursday is going to be very difficult for me. I will do what I can to make arrangements but cannot guarantee that I will be able to attend. I am also very reluctant to represent you as I have only ever undertaken representation twice before and neither occasion was anything like as heavyweight as this one. One thing is crucial, that there should only be one matter discussed at that hearing, which is whether your appeal can be suspended or should be dropped and revived after you have instituted court proceedings. If you start discussing any other issues, given that you have not prepared to discuss them, you will almost certainly lose and the risk is then that they cannot be raised again subsequently. If Andrew Nicol cannot do it, would you be willing to contemplate Tim Pitt Payne again (bearing in mind that the only issue is whether the appeal can be suspended)?

Lawrie

Simanowitz's advice was incorrect because we should have brought up the complaint material at the hearing, which is what the tribunal wished us to do. Nicol was abroad so I was forced to agree to the traitorous Pitt-Payne to represent me at the hearing. Mercer wrote to me again on 18 Nov 2003.

The Directions hearing is expected to decide what steps the Tribunal could take to avoid the necessity for you to begin separate court proceedings. One of the suggestions made by the President is that the Tribunal make a declaratory ruling on the question which would arise were court proceedings extant. In practice, this would mean the Tribunal deciding (at the full hearing) whether your appeal under section 28(6) would have succeeded if proceedings had been ongoing at the relevant time. This is not to say that this will be the only option open for consideration at the hearing on Thursday.

Obviously the tribunal were being very amenable to hearing my appeal because they wanted to know what it was about, as opposed to "my" lawyers who were blocking any attempt to tell the tribunal the substance of the complaint. The tribunal were even prepared to consider a 7(9) appeal as having been made, which it had not, in order to find out what my case was.

The hearing went ahead on 20 Nov 2003.