Publication of Parliamentary Reports in

¶5.1 In 2006 the then Information Commissioner, Mr Thomas, published two Parliamentary reports documenting the widespread trade in confidential personal information.⁴⁰⁴⁰ These reports were laid pursuant to s52(2) of the DPA. pp20-21, lines 12-3, Richard Thomas, http://www. levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-9-December-2011.pdf The report What Price Privacy? The unlawful trade in confidential personal information was published on 13 May 2006 and the follow-up report What Price Privacy Now? was published on 13 December 2006.

¶What Price Privacy?

¶5.2 The Parliamentary Report published in May 2006 was not the first occasion on which the issue of the unlawful trade in personal information had been debated or discussed in public. What Price Privacy? identified three newspaper articles in The Guardian, The Sunday Telegraph and The Times, written in the period between September 2002 and January 2003, which related to the obtaining of confidential information by private detectives and the sale of confidential information from government departments, namely the Inland Revenue, to E outside agencies.⁴¹⁴¹ Information Commissioner's Office, What Price Privacy?, p14, para 4.10 The report also noted that the House of Commons Select Committee on Culture, Media and Sport had conducted an investigation in early 2003 into privacy and media intrusion and concluded in its reports that "improper and intrusive gathering of data" had appeared in the press and that these methods amounted to a "depressing catalogue of deplorable practices".⁴²⁴² pp13-14, paras 4.7-4.11, ibid; see also Culture, Media and Sport Select Committee, Fifth Report, Privacy and Media Intrusion, HC, 458 – 1, 16 June 2003.

¶5.3 The first report laid before Parliament claimed to reveal evidence of systematic breaches of privacy that amounted to an unlawful trade of confidential personal information. The purpose of the report was to put a stop to the trade by proposing the introduction of a custodial sentence for up to two years for persons convicted on indictment, or six months for summary convictions.⁴³⁴³ Information Commissioner's Office, What Price Privacy?, p4, para 1.2

¶5.4 Section 5 of What Price Privacy? set out the evidence collated by the ICO which illustrated the market in the unlawful supply of personal data. The report explained that: "documents seized during Operation Motorman and in other investigations have allowed the ICO to build up a clear picture of how the market in unlawful personal data operates. Case details provided evidence of who is buying the information and why, and who is obtaining and supplying the information. We also have some idea of how the suppliers operate and the prices they charge."⁴⁴⁴⁴ p16, para 5.4, ibid

¶5.5 The report analysed the information seized at Mr Whittamore's premises as falling into two categories of documentation. The primary documentation consisted of correspondence (reports, invoices, settlements of bills) between Mr Whittamore and many national newspapers and magazines, identifying the individual journalist seeking the information. The secondary documentation consisted of the detective's own handwritten personal notes and a record of work carried out, about whom and for whom.

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¶5.6 In relation to methods, the report set out that there were two principal methods of obtaining information: corruption and deception.⁴⁵⁴⁵ p5, paras 1.10-1.11, ibid Corrupt practices included paying employees of organisations, for example the DVLA, to access information available to them by virtue of their position, whilst deceptive practices included impersonating either the data subject or a third party (for example an employee of the same organisation) to obtain the information.⁴⁶⁴⁶ p22, para 5.30, ibid

¶5.7 The report also identified in broad terms a number of individuals who had been interviewed as part of the investigation, including celebrities, professional footballers and managers, broadcasters, a member of the Royal Household and also figures of less obvious public interest, including the sister of a partner of a local politician. The report set out the example of a mother whose show-business daughter had featured in a number of press stories. Details of the mother's telephone calls and cars owned appeared in Mr Whittamore's ledgers and records of financial transactions. Further, a number of those interviewed reported media intrusion after personal information had been passed to the press and all were confident that they had not willingly supplied the information nor consented to its release.⁴⁷⁴⁷ p17, paras 5.9-5.11, ibid

¶E 5.8 Another aspect of the transactions that was analysed in the report was the issue of cost; that is to say how much the ultimate customers were charged for personal information and how much of this was profit once the agent sourcing the information had been paid. The prices charged to journalists ranged from £17.50 for finding an address for a person on the electoral roll, to about £70 to search for an ex-directory number, and up to £500 for a criminal record check and £750 to obtain mobile account details.⁴⁸⁴⁸ p24, para 5.35, ibid It seems likely that the figures reflected the mode of obtaining the information sought, in particular where other parties, for example blaggers, or employees, required payment for their role in the provision of the information.

¶5.9 The total sum paid by newspapers for the items of information supplied in Operation Motorman is estimated to be between £300,435 and £547,160.⁴⁹⁴⁹ p2, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Second-Witness-Statement-of-Richard- Thomas-CBE1.pdf This gives an indication that the supply of personal information was, for those involved, a lucrative business.

¶5.10 In the conclusion of the report, the ICO made a number of extremely pertinent observations:

"At a time when senior members of the press were publicly congratulating themselves for having raised journalistic standards across the industry, many newspapers were continuing to subscribe to an undercover economy devoted to obtaining a wealth of personal information forbidden to them by law. One remarkable fact is how well documented this underworld turned out to be".⁵⁰⁵⁰ Information Commissioner's Office, What Price Privacy?, p28, para 7.2 ...."The law relating to this offence is perfectly clear... it is framed in a way that applies to those who request the disclosure of personal data and those who supply it, including any intermediaries in the chain. The problem lies in the inadequacy of the penalties which the courts are able to impose".⁵¹⁵¹ p28, para 7.5, ibid

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¶5.11 The ICO sought custodial sentences in relation to the commission of offences under s55 DPA in order to deter this unlawful trade in information. The ways in which the ICO sought to achieve that end are dealt with in Part H of the Report.

¶What Price Privacy Now?

¶5.12 The Parliamentary Report What Price Privacy Now? was published to chart the progress in the six months following the first report and to set out the responses to the recommendations set out in the first report.

¶5.13 The report noted that a Freedom of Information Act request for further information about the 305 journalists identified in the Motorman material and referred to in What Price Privacy? had been considered and, on the basis that disclosure of the information was in the public interest, the employers of the journalists were set out in tabular form.

¶5.14 This table is replicated below.⁵²⁵² Information Commissioner's Office, What Price Privacy Now?, p9

¶Table E3.1

¶No. of Transactions No. of Journalists or E Publication positively identified Clients using services

Daily Mail 952 — 58
Sunday People 802 — 50
Daily Mirror 681 — 45
Mail on Sunday 266 — 33
News of the World 228 — 23
Sunday Mirror 143 — 25
Best Magazine 134 — 20
Evening Standard 130 — 1
The Observer 103 — 4
Daily Sport 62 — 4
The People 37 — 19
Daily Express 36 — 7
Weekend Magazine (Daily Mail) 30 — 4
Sunday Express 29 — 8
The Sun 24 — 4
Closer Magazine 22 — 5
Sunday Sport 15 — 1
Night and Day (Mail on Sunday) 9 — 2
Sunday Business News 8 — 1
Daily Record 7 — 2
Saturday (Express) 7 — 1
Sunday Mirror Magazine 6 — 1
Real Magazine 4 — 1

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¶No. of Transactions No. of Journalists or Publication positively identified Clients using services

Woman's Own 4 — 2
The Sunday Times 4 — 1
Daily Mirror Magazine 3 — 2
Mail in Ireland 3 — 1
Daily Star 2 — 4
The Times 2 — 1
Marie Claire 2 — 1
Personal Magazine 1 — 1
Sunday World 1 — 1

¶5.15 The table sets out a breakdown of the extent to which individual newspapers and magazines were implicated in the evidence produced by Operation Motorman and, in particular, the number of journalists employed by each newspaper or magazine which was identified as having requested the supply of personal information. E 5.16 It is worth underlining the view of the Information Commissioner, as set out in the text of What Price Privacy Now?, that the figures in the table do not purport to set out the total number of offences committed by journalists, but rather the number of requests made by journalists for information. In his evidence to the Inquiry, Mr Thomas emphasised that it was not being said that every single transaction identified was an offence committed by a journalist, but rather that journalists were significant customers of information which appeared to have been obtained illegally.⁵³⁵³ p91, lines 11-18, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-9-December-2011.pdf However, Mr Thomas also expressed the view that it was likely that journalists were committing an offence.⁵⁴⁵⁴ pp91, 93, lines 11-18, 9-18, Richard Thomas, ibid

¶5.17 Two overriding observations can be made in relation to these figures. First, whilst the journalists engaged in buying personal information supplied through a private investigator were employed by a range of titles, including tabloid newspapers, broadsheet newspapers and magazines, there is significant variation in the extent to which journalists and titles engaged in the purchase of personal information from Mr Whittamore. For example, 58 journalists from the Daily Mail sought the supply of personal information on 952 occasions, whereas by contrast one journalist from The Sunday Times sought the supply of personal information on four occasions. Second, the numbers of individual journalists engaged in purchasing personal information from particular titles is higher than could be put down to certain individuals undertaking investigations which might or might not have been known about or authorised. Where dozens, or in some cases, over 50 journalists at a particular title have sought to purchase personal information, the inference that these practices were endemic within particular titles may be readily understood.

Conclusions

¶6.1 For the purposes of responding to a request by Lord Ashcroft under the Freedom of Information Act 2000, ICO investigation officers and an in-house lawyer analysed the source material collated as part of Operation Motorman. They documented some 13,343 transactions, or individual requests for information made of Mr Whittamore. These transactions were segregated by staff of the ICO into three separate categories in terms of their evidential value.⁵⁵⁵⁵ pp1-2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fifth-Witness-Statement-of-Richard- Thomas-CBE.pdf Of these, the ICO took the view that some 5,025 were actively investigated as part of Operation Motorman and positively known to constitute a breach of the DPA. More specifically, and put somewhat more carefully, it was the view of a lawyer employed by the ICO with extensive involvement in the prosecutions that the evidence in these cases would have been sufficient to lead to conviction.⁵⁶⁵⁶ pp86-89, lines 22-11, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-9-December-2011.pdf. Mr Thomas used the words "mount a conviction": this is the only interpretation that can be put on that phrase A number of the requests in this category included PNC requests, friends and family requests and some ex-directory requests.⁵⁷⁵⁷ p89, lines 12-20, Richard Thomas, ibid

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¶6.2 A further 6,330 requests represented occupancy searches and are thought to have been information obtained from telephone service providers. The ICO considered that the obtaining of this information was likely to amount to breaches of the DPA; however, the nature of the transactions was not sufficiently known or understood for these to be characterised as a positive breach of the DPA, rather than probably illicit transactions.⁵⁸⁵⁸ pp89-90, lines 22-5, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-9-December-2011.pdf Some 1,988 of the transactions were considered to lack sufficient identification or understanding of how the information had been obtained to determine whether they represented illicit transactions. The first category of transactions only was included with the Parliamentary Reports.⁵⁹⁵⁹ p2, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fifth-Witness-Statement-of-Richard- Thomas-CBE.pdf

¶6.3 Overall, it is not surprising that the Core Participants made the concessions recorded under paragraph 3.3 above: a detailed examination of many individual examples would, in my judgment, undeniably have established that this was the very lowest at which it could be put. E For reasons which I well understand, the ICO would argue that the concession does not go far enough. Without condemning any journalist (none of whom were ever even interviewed by the ICO), it is sufficient for me to conclude that, at least in part, what has been revealed by some of the Operation Motorman evidence demonstrates an attitude to compliance with the law relating to data protection which can only be described as cavalier, if not worse: it is certainly revealing of what, at that time at least, were the practices of parts of the press. As will become apparent, the extent to which Mr Whittamore's services continued to be used by some titles after his conviction is even more revealing.

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