2012 Annual Report of the Interception of Communications Commissioner
not be able to use the powers when they can demonstrate it is necessary and proportionate
to do so. It is sensible for the Government to take the opportunity to review the current list of
public authorities who have access to ensure that access is still required, but that review should
keep in mind the need to have powers available when they can properly be used.
The Joint Committee published their report in December 2012 and made a number of
recommendations. I strongly agree with the Committee’s recommendation in relation to
removing the magistrate process for local authorities if a “super SPoC” is used and this will be
covered in the next section of my report. The NAFN SPoC service has been a great success for
local authorities and I agree that it would also be a good idea to require other infrequent users
of communications data to follow this model.
The Committee concluded that public confidence may be built by making the communications
data inspections conducted by my office more thorough and the inspection reports more detailed.
I am satisfied that the inspections conducted by my office are thorough and I have attempted
to provide more information in my annual report this year to evidence this. Furthermore I am
satisfied that our inspection reports are already detailed. A number of public authorities have
openly published their inspection reports in line with the provision in the Code of Practice.
The Committee recommended that my office should carry out a full review of each of the large
users of communications data every year and outlined that they would prefer to be reassured
that in the case of every authority submitting fewer than 100 applications a year they were
all routinely examined. No doubt my successor will make a decision on the frequency of the
inspections of larger users. I have taken a preliminary look at the figures from the inspections and
ascertained that in almost all instances where fewer than 100 applications a year were submitted,
my inspectors examined every one.
The Committee recommended that my annual report should include more detail; including
statistics, about the performance of each public authority and the criteria against which judgments
are made about performance. It should analyse how many communications data requests are
made for each permitted purpose. I have long recognised the limitation of the current statistics
that public authorities are required to retain and report (as stipulated by the Code of Practice).
For a number of years my office has wanted to increase the record keeping requirements in this
respect, but this requires a change to the Code of Practice. The current statistics are incomplete
as it is not possible to discern the number of individual items of data requested. The proposed
legislation would be an opportunity to address this.
The Committee also recommended that my brief should explicitly cover the need to provide
advice and guidance on proportionality and necessity, and there should be rigorous testing of, and
reporting on, the proportionality and necessity of requests made. I can advise that my inspectors
have always provided advice and guidance on these principles to assist public authorities to meet
the requirements. What’s more, the principles are rigorously tested during the inspections and
this year I have provided some examples in my annual report of where my inspectors challenged
the necessity and / or proportionality justifications for acquiring the data.
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