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A journalist is taking legal action against the Metropolitan Police after it refused to release correspondence with the US about three WikiLeaks journalists under the Freedom of Information Act (FOIA) on terrorism and national security grounds.
Italian investigative journalist Stefania Maurizi argued in a tribunal yesterday that terrorism legislation should not be used to “clamp down” on journalists working in the public interest to report on national security.
The Metropolitan Police, which is backed by the Information Commissioner’s Office (ICO), claims that the release of the information, which it exchanged with the US Department of Justice, will harm counter-terrorism initiatives and damage the UK’s relationships with the US.
Press freedom groups and the UK’s National Union of Journalists (NUJ) have raised concerns that the ICO is applying national security exemptions to block the release of information about the monitoring of journalists by police.
In a long-running legal battle, Maurizi, who writes for the Italian daily paper Il Fatto Quotidiano, is seeking copies of correspondence between the Metropolitan Police and the US Department of Justice relating to three current and former WikiLeaks journalists under FOIA.
Estelle Dehon, the barrister representing Maurizi along with Australian lawyer Jennifer Robinson, said: “There is no evidence that the correspondence engages a UK security body or that disclosure of information relating to UK-based journalists would have a ‘real possibility’ of harming national security.”
Maurizi began submitting FOIA requests after it emerged in 2014 that the US Department of Justice had covertly obtained emails and metadata from Gmail accounts held by Kristinn Hrafnsson, Sarah Harrison and Joseph Farrell, who worked as journalists for WikiLeaks in the UK.
The Metropolitan Police confirmed in January 2019 that it held information about the three journalists in correspondence between the Metropolitan Police Service and the US Department of Justice, which has carried out investigations into WikiLeaks.
Backed by the ICO, the Metropolitan Police Service argues that it is exempt from releasing the information on the journalists on the grounds that its Counter Terrorism Command shares information with the Security Service and other bodies that are exempt under section 23 of the Freedom of Information Act.
The police service also argues that that the correspondence with the Department of Justice should not be disclosed under Section 24 of the Freedom of Information Act on the grounds that its release could damage the “safeguarding of national security”.
Counter Terrorism Command
Detective superintendent Kevin Southworth of the Met’s Counter Terrorism Command (S015) told the tribunal that the release of the information, even if anodyne, could have a “mosaic effect” that – when combined with other information – could allow people to build up a picture of the trade craft used by counter terrorism.
Questioned by Dehon, he said there was a danger that if the Metropolitan Police released information supplied by its national security partners, it would affect the ability of the police to work with those partners in the future.
“In the future, such organisations may not want to share information with the police. It is important we protect the relationship with these organisations,” he said.
Southworth agreed there is a public interest in journalists reporting on national security matters, but said that he could not agree that in every case that national security reporting enhances, rather than imperils, the security or the democratic state.
“I am afraid it’s not a yes or no answer. I don’t want to sound like I am sitting on the fence. To a degree, I accept that investigative journalism bolsters national security, but I don’t agree it is the case in every case,” he said.
He added that it was important for journalists to be able to protect confidential sources of information, but it did not extend to every circumstance. “If someone compromises national security, then that would go beyond what they are entitled to do,” he said.
Southworth said that disclosing information on the journalists would not lead to major diplomatic response from the US or the UK, on the scale of withdrawing staff from embassies, but it might be an issue that an ambassador from one country might raise with an ambassador from another.
Monitoring of journalists
The National Union of Journalists, which represents journalists in the UK, said it is disturbing that the police service and the ICO are citing national security laws aimed to prevent terrorism to block the release of information about journalists.
“The NUJ is concerned that the authorities’ actions in this case interfere with the watchdog function performed by journalists,” it said in a written submission during the hearing.
“It will inevitably have an indirect chilling effect on journalists who carry out public interest investigations and report on government.”
The case has raised wider concerns about police monitoring of journalists and journalists confidential sources, the union argues.
In 2014, six journalists discovered that the Metropolitan Police Service had monitored and recorded their journalistic and trade union activities after placing them on a “domestic extremist database”.
In February 2015, a report by the interception of communications commissioner found police had made more than 600 applications under the Regulation of Investigatory Powers Act for phone and internet data to find journalistic sources.
Police forces gathered communications data belonging to 82 journalists over the course of three years and carried out 34 investigations which concerned relationships between 105 journalists and 242 sources.
In September 2018, the European Court of Human Rights ruled that mass surveillance without adequate safeguards for the media was unlawful, following a four-year case backed by the Bureau of Investigative Journalism and the NUJ.
Estelle Dehon said that it was particularly concerning that the ICO and the Metropolitan Police were using “blunt edge” exemptions to refuse information requested by a journalist.
She said that it is worrying that the “methods that are being used to obtain information about journalists are the very methods that are also used to prevent terrorism”.
In written submissions, Dehon argues that the Metropolitan Police Service is not exempt from the Freedom of Information Act in the same way that other bodies, such as the Security Service, are.
If the information requested by Maurizi showed that the three journalists were “of interest” to police or the Security Service as a result of a request from the US Department of Justice, or had been subject to covert intelligence gathering, that would be a matter of the “highest public interest”.
She said that “there is no evidence at all that there would be any effect on diplomatic relations between the UK and the US” if the information were to be released, as both countries have well known freedom of information systems.
Maurizi told Computer Weekly that there was a significant public interest in understanding whether the Metropolitan Police Service, by cooperating with the US Department of Justice, has contributed to the criminal investigation of journalists working in the UK.
“Nothing is normal in this case. Julian Assange and the WikiLeaks journalists have been under continuous intimidation and investigation for over a decade for revealing war crimes and torture,” said Maurizi.
The tribunal went on to consider evidence and legal arguments in a closed session.
The case continues.
Maurizi’s FOIA court battle
- November 2018: A tribunal finds that the Metropolitan Police Service cannot refuse to confirm or deny whether it held information on current and former UK-based WikiLeaks journalists, Kristinn Hrafnsson, Sarah Harrison and Joseph Farrell.
- 30 January 2019: The Metropolitan Police confirms that it holds information about current and former WikiLeaks journalists, Kristinn Hrafnsson, Sarah Harrison and Joseph Farrell in correspondence with the US Department of Justice. It refuses to disclose the information, citing national security and terrorism exemptions under the Freedom of Information Act.
- August 2020: Maurizi’s appeal and that of other journalists and non-UK residents is put on hold after the tribunal questions whether it has jurisdiction to hear the appeals of people living outside the UK.
- January 2021: The tribunal found there should be no territorial restrictions on people outside the UK using the Freedom of Information Act, allowing Maurizi and others to continue with their appeals.
- July 2021: The tribunal hears an appeal from Maurizi against decisions by the ICO and the Metropolitan Police Service not to release information held by the Metropolitan Police on the three WikiLeaks journalists, based on terrorism and national security grounds.
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