25 January 2012Mr Christopher GrahamInformation Commissioner's OfficeWycliffe HouseWater LaneWilmslowCheshire SK9 5AF Dear Mr Graham,We are writing to ask you to take steps to notify those who were subjects of data-mining by the national press where you are in possession of suchknowledge by virtue of the information that you obtained in OperationMotorman. Such individuals should be told that information had been sought onthem, possibly illegally; what information that was; and who (newspaper and journalist) procured it.We believe that this is justified morally and legally for the following reasons:1. As a public authority you have a positive obligation to assist people inprotecting their Article 8 rights.2. It is the assertion of the ICO that hundreds of journalists procured personalinformation unlawfully (in breach of section 55 of the Data Protection Act)thousands of times in respect of hundreds of individuals.3. Various press organisations, for example Trinity Mirror Group, haveaccepted the ICO's view that many, if not most, of these transactions were illegalin that there was no public interest defence and that the data sought was of anature that could only be obtained unlawfully.4. Some press organisations have however denied that any of their journalistsinvolved in the Motorman transactions did anything wrong.5. Some press organisations have now admitted continuing to use SteveWhittamore many years after his conviction and many years after the press weretold by the ICO in 2006 that the bulk of his work was illegal.6. It is likely, if not inevitable, that media organisations have illegally retainedand processed data which the ICO has judged to havebeen illegally obtained.
7. Some individuals are now hearing from the media that they were victims of this operation as information leaks out that they were targeted (we refer toarticles in the Independent and the Guardian). It is entirely wrong that theyshould read about this in the national press and not hear from the ICO.8. Other individuals in the public eye or otherwise of interest to the media,some of whom have been shown to be victims of other press misconduct, do notknow whether they have been victims of data-mining. They therefore do notknow whether their phone lines, ex-directory phone numbers, mobile phonenumbers, home addresses (where confidential), pin numbers, car registrationnumbers (where confidential) are secure anymore. Nor do they know who mighthave had access to confidential material such as their medical or bank or policerecords.9. We understand that the newspapers who perpetrated thisunlawful data-mining are being allowed to see a list of their journalists who procuredinformation and a list of the victims of this data-mining. While we do not objectto newspapers being told who these journalists were, we believe it is wrong thatthe newspaper groups – some of whom have not accepted the illegality of thisactivity – should be shown the names of those that their newspaper have data-mined in the past, without the permission of these individuals.10. If the newspapers, armed with the knowledge of who the victims were, wereto claimthat there is a public interest defence then the victims should be notifiedso that they have an opportunity to contest these claims.11. We understand that the lawyers for the newspapers have now been shownall the confidential data that all the newspapers obtained, presumably in order tomake their best case in the Leveson Inquiry, while the victims remain ignorant of the fact that they were data-mining targets and are therefore unable to providecounter-evidence.By virtue of points 3, 4, 5, 7, 9, 10 and 11 there are material changes in thecircumstances in favour of notification since the ICO last decided that it wouldnot be lawful, under section 59, to notify the data subjects that they were victimsin this criminal enterprise. We believe that this earlier decision was wrong butthat these material changes make an even more compelling case for making thisinformation available to victims.We believe the people we are in touch with have a right to know that – to thebest of the knowledge of the ICO – they were victims of data-mining so that theycan steps to protect their privacy.We look forward to hearing from you.
Dr Evan Harris