Report of the Interception of Communications Commissioner - July 2016
agencies notified us of their intention to make minor amendments to their systems or
informed us that they had decommissioned certain legacy systems.
6.61 Retention of interception applications and associated documentation. In
2015 we carried out a review of the procedures in place for the retention of interception
applications and associated documentation (for example, renewals, modifications,
cancellations, instruments and schedules) by the interception agencies, warrant issuing
departments and CSPs. There is no explicit provision in RIPA or the Code of Practice
requiring the destruction of warrantry applications and associated documentation.
Conversely, there is no express requirement for retention. That said, if an application or
renewal contains information that discloses it to be the product of warranted interception,
the document may well fall within section 15(3) of RIPA.
6.62 We found, unsurprisingly given the lack of specific provisions in RIPA and the Code
of Practice, a variety of different retention arrangements within each of the interception
agencies, warrant issuing departments and CSPs. Some of the interception agencies,
warrant issuing departments and CSPs retain this documentation indefinitely whereas
others, mostly the law enforcement agencies, destroy them within a reasonable period
of time after the interception has been cancelled and any legal proceedings have ended.
6.63 For inspection purposes we would be content for the records to be retained by
the interception agencies and warrant issuing departments for up to two years after the
individual interception warrant had been cancelled. For CSPs, we do not see the need for
the documentation to be retained after the interception has been cancelled. However
another important consideration relates to ensuring the documentation is retained for
a sufficient period to enable the IPT to exercise its jurisdiction. Section 67(5) of RIPA
provides that the IPT shall not consider or determine any complaint if it is made more
than one year after the conduct to which it relates unless it is equitable to do so. Some of
the interception agencies or warrant issuing departments cited duties under the relevant
Public Records Acts to retain documentation indefinitely. A number of the interception
agencies or warrant issuing departments asked for guidance on whether they should keep
the records in hard copy or whether they could be scanned and retained electronically.
We have no preference provided it is possible to sufficiently identify the provenance
of any scanned or electronic copies. It would be helpful if the Code of Practice clarified
these matters. We note that Paragraph 10.1 of the draft IP Bill Code of Practice for the
Interception of Communications states that “It is desirable, if possible, to retain records for
up to five years.” This provision would benefit from further clarity, in particular, whether it
is permissible to retain documents indefinitely.
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