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The Rolls Royce of covert surveillance

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Martin Rosenbaum | 13:07 UK time, Friday, 7 August 2009

The English education and children's services inspectorate Ofsted apparently has "a finely tuned and well lubricated Rolls Royce in the garage, just waiting to be taken out on an appropriate occasion".

Rolls RoyceBut Ofsted isn't moving into the luxury car business - that is just the description given by the Office of Surveillance Commissioners to the capacity of Ofsted to run a secret surveillance operation.

This features in the latest OSC inspection report [2.90Mb PDF] on Ofsted, which has the power to conduct surveillance for its role in monitoring child-minding and day care in England. In the past three years, it only considered getting the Rolls Royce out on one occasion, but decided not to.

The way some public authorities have used their powers for covert monitoring under Ripa (the Regulation of Investigatory Powers Act) has stirred up much recent controversy. The question of whether Ofsted should still have this legal right has been raised, but in the inspection report, the Assistant Surveillance Commissioner Colin Kolbert states: "it is greatly to be hoped that OFSTED's efforts will not go to waste because of regrettable recent actions by certain local authorities".

The OSC doesn't always find a well-lubricated Rolls Royce in the garage. I have previously described another of their inspection reports, this time on the Scottish Prison Service, as "the most scathing report I have read of an official inspection into a public authority's work".

These reports were obtained from Ofsted and the Scottish Prison Service by the BBC following freedom of information requests. Such documents cannot be acquired directly from the OSC, since it is not covered by the Freedom of Information Act.

The fact that FOI requesters can ask the inspected authorities for OSC papers, even though they can't ask the OSC itself, doesn't please the Chief Surveillance Commissioner Sir Christopher Rose, as spotted by FoiNews.

In his 2007/8 Annual Report [658Kb PDF], he wrote:

"I regard myself as a 'qualified person' as defined by Section 36 of the Freedom of Information Act and it is my 'reasonable opinion' that for public authorities to disclose the contents of my reports would prejudice the effective conduct of public affairs."

OSC reportBut in his 2008/9 Annual Report [668Kb PDF] released last month, he was forced to acknowledge:

"I misled myself regarding section 36 of the Freedom of Information Act. I am not capable of being a 'qualified person' within the meaning of that Act. I therefore confirm that the decision whether to disclose my reports, and if so in what form, rests with each public authority. I have promised to review the design of my reports to assist public authorities to meet their obligations."

Misleading yourself as to your legal powers: perhaps it's not what you would expect from someone who was previously an appeal court judge.


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