Вторник, 13 августа 2019

7. Information in the public domain

Information in the public domain

7.49 In some instances, a reporter's suspicion may only be aroused by what they have read in a newspaper or by information from another media source. They may have no additional information beyond what is included in the media report. One example of when this might arise is where a property transaction by a high net worth individual is reported in the press.

7.50 We observed in our Consultation Paper that there were difficulties with seeking to eliminate these types of reports entirely. We questioned how a reporter could be confident that the information was in the public domain and what sources of information would meet this criterion. We queried whether one source would be sufficient or whether multiple sources would be required. Moreover, some sources may be less reliable than others, for example a personal blog might be considered a less credible source than a broadsheet newspaper.

7.51 We also noted the practical difficulties that may arise. Any exception would be difficult to apply where a reporter may have been in possession of more facts than those in the relevant media source. It would also place an additional burden on law enforcement agencies to monitor information in the public domain.

7.52 We provisionally proposed a short-form report as a proportionate compromise which would provide information to law enforcement agencies while recognising its limited value.

7.53 During our data analysis work, we discovered that 49 authorised disclosures out of our overall sample of 563 contained information that was already in the public domain without the provision of any additional intelligence from the reporter. This amounts to 8.7% of the total number of authorised disclosures we considered.

Consultation response

7.54 Consultees were divided on whether there was insufficient value in a report which only provides information which is already in the public domain given the cost of reporting. Of the 36 consultees who responded to this question, 21 were in in favour of our provisional proposal and 15 were against. However, some of those who argued against the proposal did so on the basis that they favoured no disclosure at all. Given a choice between full disclosure or the limited disclosure that we proposed, these consultees might have favoured our proposal.

7.55 Some consultees, such as the Financial Conduct Authority («FCA») felt that our proposal represented a good compromise. City of London Police thought it would be helpful if any redesigned form still holds enough information to make it fully searchable and also that it includes a requirement to include the source of the publicly available information.

7.56 Of those who disagreed, some consultees argued that no disclosure should be required where the information was in the public domain. A general concern that came from law enforcement agencies was that there was no way for the reporter to know that the information had come to the attention of the NCA. The sole fact of a link between the reporter and the person in the media might itself be useful and otherwise unknown. The NCA stated:

While a reporter might see some information in the public domain relating to one of their customers, law enforcement still need to know about the reporter's suspicion and the detail of the suspicious activity. The link between the information in the public domain and the suspected activity, as provided by the reporter, may in fact be new and previously unknown element for law enforcement.

7.57 Others felt that it was too difficult to delineate precisely what information was known only to the reporter and what information was in the public domain which could lead to factual disputes. The CPS in particular were concerned about this distinction:

We do not agree. It is not possible to know what information and to what degree of detail is in the public domain and regardless of what is in the public domain there may be greater information which the reporter can give and should be prompted/require by the report to address.

Analysis

7.58 Views on this issue were wide-ranging but a common theme emerged that there was no clear line between public information and information only known to the reporter and this was information which law enforcement agencies wished to have.

7.59 In light of our recommendation that the creation of a tailored online form should be a priority, such a form should also be designed to accommodate reporters who can only provide minimal information. Any prescribed form in digital format could make use of drop-down options to allow a reporter to signpost the source of their information. It could also allow a reporter to provide hyperlinks to the relevant media sources and not penalise the reporter for empty data fields. This would reduce the burden on the reporter while still ensuring that law enforcement agencies are receiving relevant information and intelligence.

Recommendation

7.60 In light of the above, we make no further recommendation and conclude that a prescribed form tailored to the specific circumstances of the reporter is the best approach in these cases.

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