Police challenged over refusal to disclose files on WikiLeaks staff
Lawyers will challenge the Metropolitan Police Service today to confirm or deny whether it holds correspondence with US law enforcement about three WikiLeaks staff – including two UK citizens – in a freedom of information tribunal
By
Bill Goodwin and Niels Ladefoged
Published: 20 Nov 2018 11:15
The Metropolitan Police Service (MPS) faces a legal challenge over its refusal to confirm or deny whether it has shared correspondence with US law enforcement agencies about three prominent members of WikiLeaks staff, including two British citizens, whose personal emails were secretly disclosed to US prosecutors.
Stefania Maurizi, an investigative journalist for La Repubblica, will argue at an appeal tribunal today that it is in the public interest for the police force to reveal whether it has exchanged information about the current and former WikiLeaks employees with the US.
The case comes only days after it emerged that a US prosecutor had mistakenly revealed that WikiLeaks founder Julian Assange had been charged with crimes in the US, after apparently mistakenly cutting and pasting Assange’s name into an indictment on an unrelated case.
Assange took refuge in the Ecuadorian Embassy in 2012, after losing his appeal against extradition to Sweden following allegations of sexual assault by two Swedish women. He remains there still. The case was closed in 2017.
The police spent at least £13m policing the embassy between June 2012 and October 2015, when it ended 24-hour physical surveillance of the embassy, in favour of cheaper “overt and covert” tactics to arrest Assange, who fears extradition to the US if he leaves the embassy.
Maurizi is using the Freedom of Information Act (FOIA) to seek disclosure of information held by the Metropolitan Police on former investigations editor Sarah Harrison and two current staff – section editor Joseph Farrell, and editor in chief Kristinn Hrafnsson.
The WikiLeaks employees learned in 2014 that a court in East Virginia had ordered Google to disclose their personal emails, contacts, calendar entries and log-in IP addresses to the US government, as part of an investigation into alleged violations of US federal laws, including the Computer Fraud and Abuse Act and the US Espionage Act.
Jennifer Robinson, a human rights lawyer acting for WikiLeaks and Maurizi, said the hearing raised significant questions about the jurisdiction the US has over British journalists and editors.
“We want to know what role the British government and the British police are playing in that process, now that we know that information subpoenaed from these British journalists and editors likely contributed to the criminal investigation in the US and the indictment of Julian Assange,” she said.
In this interview, investigative journalist Stefania Maurizi talks about her use of FoI requests to gain information about Julian Assange’s extradition case (filming by Niels Ladefoged)
Row over consent to disclose personal data
One of the issues under dispute in the current case is whether Maurizi had secured adequate consent from the three journalists for the Metropolitan Police to disclose their personal data to the wider public.
Maurizi obtained letters, and later signed witness statements, from each journalist, giving permission for the Met Police to release their personal information to Maurizi to use in her reporting on WikiLeaks.
But the police service argued that it could not be certain that the journalists had “explicitly and freely given their materially informed consent to the disclosure of personal data” – a decision upheld by the information commissioner.
The witness statements would need to be confirmed as genuine, and it would be unreasonable to expect a public authority, such as the Metropolitan Police Service, to undertake to do so, the commissioner held following a tribunal ruling in March 2018.
Robinson, representing Maurizi, said: “We are challenging the fact that they [MPS] are using the personal data exemption in circumstances where the journalists and editors have given their consent to the release of that information.”
Kafka is ‘alive and well’
Hrafnsson and Farrell are expected to give evidence in person at the East London Tribunal Centre today, confirming that they gave full consent to Maurizi to ask the Metropolitan Police to release any personal data they held on them.
Farrell wrote in a tweet in June: “What a bizarre state of affairs that I have to go to court and testify to get MY OWN data released to MYSELF. Kafka is alive and well it seems.”
Hrafnsson said in written evidence to the tribunal that it was made “abundantly” clear to him that Maurizi would use any personal data released about him by the Metropolitan Police “in her capacity as an investigative journalist and would be publishing stories based on the information she received”.
He said he gave consent in the “full knowledge” of how Maurizi intended to use the “relevant personal data about me that would be released to her”.
The WikiLeaks journalists and editors
Kristinn Hrafnsson
Kristinn Hrafnsson is currently the WikiLeaks editor in chief, after having worked for WikiLeaks as a spokesman since 2010. A well-established Icelandic investigative journalist, Hrafnsson has worked on high-profile disclosures with WikiLeaks.
Hrafnsson has helped Julian Assange and his team to handle some of the most sensitive publications, such as the US secret documents of the Afghan and Iraq wars, the US diplomacy cables, the Guantanamo files, and many other high-profile revelations.
In September 2018, Julian Assange made Hrafnsson editor in chief of WikiLeaks, when the Ecuadorian government denied Assange any internet and phone communications and any access to visitors, except his lawyers, from March 2018 onwards.
Sarah Harrison, former investigations editor at WikiLeaks
Sarah Harrison is described as one of the most crucial WikiLeaks journalists. She has handled some of the most sensitive publications, contributing to verifying whether the files were genuine, coordinating the media partners and training them in encryption.
In 2013, Harrison travelled to Hong Kong to assist Edward Snowden as he sought political asylum. She spent 40 days with Snowden while he remained in a Moscow airport, before being granted asylum by Russia. She later spent four months with Snowden in Moscow.
Joseph Farrell, WikiLeaks section editor
Joseph Farrell is a British journalist who has collaborated with Julian Assange and WikiLeaks from a early stage. He has always kept a low profile, he has assisted WikiLeaks in handling some of its most sensitive assignments, and has maintained contact with WikiLeaks supporters. Together with Sarah Harrison, Farrell acted as one of the securities to help Assange secure bail.
Source: Stefania Maurizi
The information commissioner and the Metropolitan Police claim that the time for the journalists to give consent was in Maurizi’s initial freedom of information application, rather than in a later appeal. Both bodies argue that the three journalists were not alerted to the fact that they could have obtained the same data through a “more appropriate” route, a subject access request under the Data Protection Act.
Lawyers for Maurizi argue that there is nothing in law to prevent personal data being accessed through the Freedom of Information Act with the consent of the data subjects. They accuse the Met of failing in its statutory duty to assist Maurizi by specifying what it would regard as an acceptable form of consent from the three journalists.
Swedish FOIA requests reveal UK tactics
Maurizi began using the Freedom of Information Act to request public-interest information on WikiLeaks in 2015.
In 2017, she obtained correspondence between the Swedish Prosecution Authority (SPA) and the Crown Prosecution Service (CPS), which shed light on discussions between the UK and Sweden over allegations made against Assange by two Swedish women.
The then Crown Prosecution lawyer, Paul Close, wrote to his counterparts Ola Lofgren and Marianne Ny in Sweden in 2011 repeating his earlier advice that “in my view it would not be prudent for the Swedish authorities to try to interview the defendant in the UK”.
CPS lawyers offer Swedes a Christmas present
In an email to Ny, dated 29 November 2012, Close went on to say that the UK authorities would not allow Assange to leave the Embassy of Ecuador to seek medical treatment, despite reports on the BBC World Service about his deteriorating health.
“There is no question of him being allowed outside of the Ecuadorian embassy, treated and then being allowed to go back. He would be arrested as soon as appropriate,” he wrote.
Close suggested he was optimistic that Assange could be extradited before Christmas, writing to Ny: “I am sure you can guess what I would just love to send you as a Christmas present.”
In a previous email to the SPA on 13 January 2011, Close suggested that Assange’s extradition was being handled differently to other extradition cases. “Please do not think that the case is being dealt with as just another extradition request,” he wrote.
UK delays kept Assange in Ecuadorian embassy
Maurizi said she suspected that the disclosure of the CPS emails to the US would show that the UK played a significant role in delaying Sweden’s failure to progress the investigation against Assange – which effectively kept him in arbitrary detention in the Ecuadorian embassy.
The fact that a US court subpoenaed information from Google from the email accounts of journalists as part of an investigation under the US Espionage Act raises significant public interest concerns about the reach of government warrants, privacy and free speech, she said.
“It is a matter of substantial public interest to understand whether or not the UK authorities are communicating or cooperating with the US in an investigation of this nature”
Stefania Maurizi, investigative journalist
The Espionage Act, originally intended to prosecute spies, has been increasingly used by presidents Barack Obama and Donald Trump against journalists and their sources.
The act has been used to punish some of the most important journalistic sources of the past 50 years, including Chelsea Manning and Reality Winner, who was sentenced to five years after leaking a secret document showing alleged attempts by Russia to hack the American voting system.
Maurizi has established that the SPA holds 34 lever arch files on Assange, totalling between 7,200 and 9,000 pages of correspondence. In two years, she has managed to obtain only 27 emails from the CPS and the SPA, reinforcing, she said, just how little transparency there has been on the Assange case.
“It is a matter of substantial public interest to understand whether or not the UK authorities are communicating or cooperating with the US in an investigation of this nature into individuals who are British citizens or are working with journalists in the UK and Europe,” she said.
Met Police ‘failed to consider public interest’
Estelle Dehon, a public law barrister representing Maurizi said the Metropolitan Police had failed to consider whether there was any public interest in disclosing information about the case.
“What the Metropolitan Police did was actually a failure to consider the substantial public interest in the case at all, and in fact, we say this is a failure that continues because none of the evidence that has been put forward before the tribunal by the Metropolitan Police deals with the substantive public interest.”
Maurizi said it has long been suspected that the US authorities are running a secret investigation into WikiLeaks under the Espionage Act, and if the UK is running a similar investigation, this poses serious questions for press freedom in the US and the UK.
“As journalists we have to acquire factual information. We have to ask for documents from the UK, the US, Swedish and Ecuadorian authorities to try to understand what went wrong with the Assange case, because clearly something went wrong,” she said. “You cannot accept a man sitting in an embassy and no one is doing anything. That is unacceptable to me.”
Journalists’ battle to secure answers on WikiLeaks
2009: Italian investigative journalist Stefania Maurizi starts a partnership with WikiLeaks. During the partnership, she verifies secret and restricted documents, and looks for angles and stories that would make the documents accessible to the public.
2010: Sarah Harrison becomes investigations editor for WikiLeaks, and Kristinn Hrafnsson becomes a spokesman for WikiLeaks.
2010: A US grand jury in Alexandria, Virginia, opens an investigation after WikiLeaks publishes a series of secret files, including the Afgan and Iraq war logs, US diplomatic papers and the Guantanamo files.
19 April 2011: WikiLeaks founder Julian Assange asks Google’s chief executive Eric Schimdt to press for the disclosure of any search and seizure warrants issued by Google for information on WikiLeaks or its staff. Assange tells Schmidt that Twitter had argued for the release of warrants seeking records during early court hearings. Schmidt tells Assange he will pass the request on to Google’s general counsel.
June 2012: WikiLeaks founder Julian Assange takes refuge in the Ecuadorian embassy in London, after facing possible extradition to Sweden. The Swedish case has since been dropped.
2013: Sarah Harrison travels to Hong Kong to assist Edward Snowden as he seeks political asylum. She spends 40 days with Snowden while he remains in a Moscow airport, before being granted asylum by Russia, and later spends four months with Snowden in Moscow.
22 March 2012: Judge John Anderson signs secret warrants in the US District Court for the Easter District of Columbia, ordering the disclosure of all data and email content held by Google on three WikiLeaks staff – Sarah Harrison, investigations editor; Joseph Farrell, section editor; and Kristinn Hrafnsson, spokesman – within two weeks. Separately, Anderson went on to issue an arrest warrant for Edward Snowden, on 14 June 2013.
23 December 2014: Google sends notifications to three journalists and editors at WikiLeaks – Sarah Harrison, Kristinn Hrafnsson and Joseph Farrell. The notifications reveal that Google has provided US federal law enforcement with the entire content of their Google emails, subscriber information and other content. The notifications reveal a US investigation into charges including espionage, conspiracy to commit espionage, theft of US government property, breaches of the US Computer Fraud and Abuse Act, and conspiracy and the Espionage Act. It is unclear whether the US investigation is targeting the three WikiLeaks staff named, WikiLeaks as an organisation, or its founder, Julian Assange.
26 January 2015: The Centre for Constitutional Rights, representing WikiLeaks, writes to Google chairman Eric Schmidt expressing its “astonishment” that Google waited two-and-a-half years to release details of the order and failed to provide the three WikiLeaks staff with details of the material it provided to US law enforcement authorities. The American Council for Civil Liberties (ACLU) raises concerns about the “shockingly broad” wording of the warrants and the First Amendment concerns raised by handing over information from the accounts of WikiLeaks journalists and employees.
2015: Sarah Harrison is awarded the Willy Brandt prize for political courage for her work with WikiLeaks and helping Edward Snowden to win political asylum.
22 May 2017: Investigative journalist Stefania Maurizi files a freedom of information request with the Metropolitan Police Service (MPS) for information relating to Julian Assange. The Met refuses the application on the grounds that “the correspondence would form part of a live police investigation”.
29 May 2017: Maurizi files a freedom of information request to the Metropolitan Police Service for information relating to WikiLeaks journalists Sarah Harrison, Kristinn Hrafnsson and Joseph Farrell.
8 June 2017: The Metropolitan Police Service initially refuses Maurizi’s freedom of information request on the grounds that it would not be possible to respond to the request without exceeding the cost threshold. It asks Maurizi to “specify exactly what documents you are after”.
29 June 2017: Maurizi narrows her freedom of information request to copies of correspondence between the US Department of Justice and the Metropolitan Police Service, relating to the three WikiLeaks journalists, between June 2013 and June 2017.
11 August 2017: The MPS refuses to confirm or deny that it possesses correspondence on the WikiLeaks journalists on the grounds that it constitutes personal information, citing Section 40 (5) of the Freedom of Information Act. Maurizi then contacts the three WikiLeaks journalists, who provide witness statements agreeing to the release of their personal information to Maurizi to use in her reporting on WikiLeaks and the investigation into the three members of staff.
14 September 2017: Maurizi asks the Metropolitan Police Service to review its decision to neither confirm nor deny that it held any correspondence on the WikiLeaks staff, on the grounds that there was a strong public interest in “shedding light” on the ongoing investigation into the individuals. She encloses a signed witness statement from the individuals giving their permission to release the information, providing contact details for each individual.
19 September 2017: The Metropolitan Police Service upholds its original decision not to confirm or deny that it holds correspondence on the three WikiLeaks journalists.
21 December 2017: Maurizi files a complaint with the UK information commissioner. She argues that the MPS’s argument that there would be a breach of the Data Protection Act by releasing information on the three WikiLeaks journalists is misplaced, as each has given consent for their personal data to be disclosed.
3 March 2018: The information commissioner upholds the Metropolitan Police’s decision not to confirm or deny that it holds correspondence relating to the three WikiLeaks journalists. The information commissioner holds that the witness statements do not amount to adequate consent to release their data to the public. She argues that the individuals’ identities would need to be confirmed and that it would be unreasonable to expect a public authority, such as the Metropolitan Police Service, to take that step.
March 2018: The Ecuadorian embassy denies Julian Assange internet and phone communications and access to visitors.
September 2018: Kristinn Hrafnsson is named editor in chief of WikiLeaks, after the Ecuadorian embassy denied Assange internet and phone communications and access to visitors.
22 October 2018: The MPS makes written submissions to the tribunal, in part to avoid sending a representative to defend its position.
15 November 2018: It emerges US prosecutors have inadvertently revealed that WikiLeaks founder Julian Assange has been charged following a cut and paste error in an unrelated case in the Eastern District of Virginia. The case had been unsealed in early September.
