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Annual Report of the Security Service Commissioner for 1999 1. This is my tenth and final report as Commissioner for the Security Service. It covers the year ending 31 December 1999. On 14 December 1997 I was re-appointed to be Commissioner until 13 December 1999. My appointment was subsequently extended to 31 March 2000 when a new Commissioner will be appointed. I will, of course, offer any such assistance as my successor may require in completing next year's Report. 2. In this report I have followed the practice employed in previous years of giving as much information as I can in the first part of my report. Those matters which cannot be fully explained without disclosing sensitive information are contained in the confidential annex. Functions of the Security Service Commissioner 3. My functions are as follows: (a) To review the exercise by the Secretary of State of his powers to issue, renew and cancel warrants under sections 5 and 6 of the Intelligence Services Act 1994, which replaced section 3 of the 1989 Act. The warrants in question are for entry on or interference with property (property warrants) and are in practice issued by the Home Secretary or the Secretary of State for Northern Ireland. I refer in paragraphs 19-20 below to developments impacting upon the warrantry arrangements resulting from implementation of the Scotland Act 1998; (b) To investigate cases referred to me by the Security Service Tribunal in which it is alleged that property has been interfered with by the Security Service so that I may establish whether a warrant has been issued and, if so, to consider whether it was properly issued; (c) To investigate cases referred by the Tribunal in which, although there is no determination in favour of a complainant, it appears to the Tribunal that there are grounds for an investigation into whether the Service has acted unreasonably in any other respect in relation to the complainant and his property and (d) To make an annual report to the Prime Minister on the discharge of my functions. The report is laid before Parliament. Functions of the Security Service Security Service Acts 1989 and 1996 4. In my previous reports I have outlined the functions of the service. It may be helpful if I do so again. The Security Service Acts 1989 and 1996 set out the functions of the Service which are firstly the protection the national security. The concept of national security is not defined in the Act but includes, though is not confined to, protection against threats of espionage, terrorism and sabotage, the activities of foreign powers and actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means; (section1(2)). Secondly, its function is to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands; (section 1(3)), and thirdly, to act in support of the activities of police forces and other law enforcement agencies in the prevention and detection of serious crime (section 1(1) of the 1996 Act). 5. In my first report I outlined the provisions of the 1989 Act relating to the issue of warrants. It is important that the public remains fully informed of these arrangements and I am therefore covering the procedures again. It is worth recording that whilst there have been a number of developments in relation to the issue of warrants, the general principles of the process remain similar. 6. Section 5 of the Intelligence Services Act provides for the Secretary of State, to issue warrants authorising entry on or interference with property, ("property warrants") or with wireless telegraphy. Applications may be made by the Security Service, the Secret Intelligence Service (SIS) or Government Communications Headquarters (GCHQ) in respect of their statutory functions. Additionally, where assisting the Intelligence Services, the Security Service may apply on behalf of SIS and GCHQ, even if the proposed operation is outside the Security Service's functions. This latter facility reflects the position that the Home Secretary or in Northern Ireland, Secretary of State for Northern Ireland, and the Security Service should normally have responsibility for operations which may affect people in the UK. As I mentioned above, the section 5 warrantry provisions replaced the property warrant power in the Security Service Act 1989, extending it by making it available in respect of the functions of all three agencies (the Security Service, SIS and GCHQ). Application procedures 7. Property warrants must be issued by the Secretary of State. As this report concerns the Security Service, my focus is on that agency. Applications for warrants are made by the Service. Sometimes applications result from intelligence or information that there may be information available from a property which may be of substantial value in assisting the Service to discharge any of its functions. On other occasions, another agency may suggest that such information is available. All such applications are made either to the Home Secretary or the Secretary of State for Northern Ireland. Before any application is submitted the Service assesses the justification for the property warrant to ensure that it satisfies the statutory requirements. The plan for any such operation is scrutinised and approved at a senior level in the Service, and application is then formally made to the relevant warrantry Department. 8. All applications for a property warrant contain a description of the case, the name of the person or organisation targeted, the property involved, details of the operational plan, and risk assessment. The application must lead the Secretary of State to conclude that it is necessary for the action to be taken in order to obtain information which is likely to be of substantial value in assisting the Service to discharge any of its functions as described above. The application must also lead the Secretary of State to conclude that the information in question cannot reasonably be obtained by other means. 9. When an application arrives at the warrantry Department it is considered by the warrants unit. It is carefully scrutinised on arrival to ensure the application is in order, and that it satisfies the provisions of the Act. This includes a check that satisfactory arrangements are in force regarding the disclosure of any material obtained under the warrant and that these arrangements will be applied. If there is any doubt on any of these scores the application is referred back to the Service. If the application is approved it is referred, through a member of the Senior Civil Service, to either the Permanent Under-Secretary or a Director. After this additional level of approval the application is submitted for consideration by the Secretary of State. The Secretary of State considers whether to approve the application based on the application itself, together with any relevant background material and the comments and advice of his advisers. If the property warrant application is approved, he signs the warrant. The warrant is then sent to the Service. 10. In urgent cases, where the Secretary of State is not available to sign a property warrant but can be reached on the telephone, he may authorise the issue of an urgent property warrant under the hand of an official in his Department. A separate authority is required for each warrant so signed. Where such authority is granted in a particular case the warrant lapses, unless renewed, under the hand of the Secretary of State, by the end of the second working day following the date of issue. I have referred to a review of the application of this urgency procedure which has been undertaken in 1999 in paragraphs 25 to 28 below. Renewals 11. The property warrant is initially valid for a period of up to six months from issue. The procedure on renewal is much the same as on initial application except that the request will state whether or not the operation has produced intelligence of value since its inception and will have to show that it remains necessary for the warrant to continue to have effect for the purpose for which it was issued. The request for renewal is processed in much the same way as the initial application. Renewals are valid for a further six month period. Cancellations 12. When an operation authorised by a property warrant is completed, or the retention of the warrant can no longer be justified, the property warrant is cancelled at the request of the Service by a senior civil servant in the relevant department. 13. I believe the system as described works effectively. It is subject to a number of checks at a senior level, both within the Service and in the warrantry Department before submission to a Secretary of State. The system could be criticised for being unwieldy in terms of the administrative input required. I do not accept this and the checking process has been put into place for a reason. Operations involving property warrants are intrusive. Such decisions must therefore be based on meticulous planning and carefully scrutinised. In my opinion the system achieves an important balance ensuring sufficient flexibility and viability whilst including important safeguards. Review of the Secretary of State's powers to issue warrants 14. As I have already explained, warrants obtained by the Security Service under section 5 of the Intelligence Services Act 1994 are issued only by the Home Secretary and the Secretary of State for Northern Ireland. In carrying out my functions I have visited the Security Service, the Home Office and the Northern Ireland Office twice during 1999 with a view to satisfying myself that the object of obtaining the information is in the discharge of one of the functions of the Security Service; that the action appears necessary for obtaining the information, that the information could not reasonably be obtained by other means, and that the information is likely to be of substantial value. 15. I have examined all the warrants issued, and the majority of those renewed and cancelled in the year ending 31 December 1999 and in some cases I have examined the product obtained by the operation. In some cases I have questioned those officers responsible for preparing the application and who will use the information obtained. With one exception which I refer to below, I have found no warrant which has been issued, renewed or cancelled which was not clearly in the discharge of one of the functions of the Service. As I stated in my last report, in so far as threats posed by the actions or intentions of persons outside the British Islands to the economic well-being of the United Kingdom are concerned, it is important to note that the Service's function is limited to the protection not the promotion of the United Kingdom's economic well-being. I can again report that I have found no warrant which exceeds this specific criterion 16. In my last report I specifically referred to the extension of the Service's remit in the Security Service Act 1996 to assist in the fight against serious crime. I explained that whilst counter-terrorism work remained the Service's top priority, the Service had indeed made a successful contribution to the efforts of the law enforcement agencies in combating serious crime. I can confirm that based on my review for 1999 the skills and expertise which the Service has brought to bear has continued to complement the police effort in undertaking intelligence driven operations against the upper echelons of the criminal hierarchy. I should again stress that the role of the Service in the serious crime field is a supporting one. There are established mechanisms in place, as required in the Security Service Act 1996, to ensure that primary responsibility for tackling serious crime rests with the police and other law enforcement agencies. I have again carefully reviewed the warrants issued on the grounds of preventing or detecting serious crime. With one exception I am satisfied that these have all been properly issued to support the activities of the police and other law enforcement agencies. The exception related to a warrant where it appeared to me that the application was open to more than one interpretation. While the application mentioned serious crimes, it seemed somewhat thin and lacking particularity. It was not entirely clear which crime was being targeted and so there was the question whether it came within the definition of serious crime, namely a crime with a reasonable expectation that a person who has attained the age of twenty-one and had has no previous convictions would be sentenced to imprisonment for a term of three years or more. On questioning the Security Service personnel I concluded that the case was made out. I directed that a further supplementary statement in writing should be made to the Secretary of State, and this was done. This is an important matter which has particular relevance to warrants in support of serious crime. In the case of counter terrorism for example the activities of the terrorist organisation will be well known to the Secretary of State and all that is needed is to identify sufficiently clearly in the intelligence case the extent of the target's involvement. In the case of serious crime on the other hand the operation will probably be one-off and the Secretary of State will not know the background unless it is fully set out in the application. In my opinion the application required some clarification before the warrant was issued. This clarification was eventually provided and I am satisfied that no injustice resulted. 17. The Secretary of State is reliant on the advice he receives and I have regarded it as one of my functions to check, as far as I can, the accuracy of the information contained in the application and the candour of those applying for it. This remains a question of the integrity and quality of all involved in the warrantry process. Whilst there have been two errors noted in the course of my review for 1999, I can again report that, as far as I am able to judge, the Secretaries of State have been properly advised and I am satisfied they have exercised their powers under the Act correctly. 18. In previous reports I have explained my reasons for not disclosing the numbers of warrants issued and renewed in the course of the year. I remain of the view that particulars of the actual numbers would assist the operation of those hostile to the state if they were able to estimate even approximately the extent of the Security Service's work in fulfiling its functions. The figures do however continue to remain small and I include them in the confidential annex to this report. 19. I referred to the devolutionary aspects of the Scotland Act 1998 in my last report. The Scotland Act 1998 was implemented on 1 July 1999. The Act makes the functions of the Security Service a "reserved" matter which means that only the UK Parliament can amend legislation relating to them. National security and economic well-being are likewise "reserved" matters, remaining the responsibility of the UK Parliament. In general, however, responsibility for law enforcement and criminal law is now devolved to the Scottish Parliament and are ultimately the responsibility of Scottish Ministers. In recognition of this fact, as of 1 July 1999 responsibility for authorising serious crime property warrants in Scotland transferred to Scottish Ministers. This has been achieved by an executive devolution of the Secretary of State's functions under section 63 of the Scotland Act 1998; Scottish Ministers are thereby permitted to exercise functions relating to serious crime "in or as regards Scotland". This means that should the Security Service become involved in a serious crime case located in Scotland, any property warrants deemed operationally necessary would be signed by the Scottish First Minister or his Deputy. 20. The review function of the Security Service Commissioner in accordance with section 4(3) of the Act in relation to Scottish Ministers' use of their powers to issue serious crime warrants is provided for in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (SI 1999/1750). Article 2 of the Order provides that responsibility for issuing Security Service serious crime warrants applied for under section 5 of the Intelligence Services Act 1994 is transferred to Scottish Ministers. Article 6(2)(a) of the Order applies section 117 of the Scotland Act which means that any pre-commencement enactment shall be construed as if references to a Minister of the Crown were or included references to a Scottish Minister. Paragraph 2 of Schedule 4 to the Intelligence Services Act 1994 provides the review function of the Security Service Commissioner who shall review "powers, so far as they relate to applications made by the Service, under sections 5 and 6 of the Intelligence Services Act 1994". The obligation of officials of the department of the Secretary of State to disclose or give to the Commissioner such documents and information as he may require for the purpose of enabling him to discharge his functions (section 4(4) of the 1989 Act) appears to be imposed on officials of the Scottish Administration by Article 6(3)(b) of the 1999 Order. The obligation to lay the Commissioners annual report before Parliament (section 4(6) of the 1989 Act) appears to be applied to the Scottish Parliament by virtue of Article 6(2)(b) of the 1999 Order and section 121 of the Scotland Act 1998 so far as it relates to devolved matters. Similarly the investigation of and determination of complaints relating to the exercise of the powers of the Secretary of State contained in schedule 1 paragraph 4(1) of the 1989 Act and the Commissioners powers to report to the Secretary of State under paragraph 7(3) of that schedule in so far as they relate to devolved matters appear to apply to Scottish Ministers by virtue of Article 6(2)(b) of the 1999 Order and section 117 of the Scotland Act. I use the expression "appears to be" because this highly complex procedure is not readily apparent in contrast with the much clearer provisions of the Order in so far as it relates to the Interception of Communications Commissioner and the Intelligence Services Commissioner, and I consider that clarification of this position would be helpful. 21. In accordance with my established policy I am not publishing details or numbers of warrants issued in accordance with this new warrantry provision. I can report that I am content that all involved in the warrantry process are aware of this requirement. I can also report that mechanisms have been established to ensure that my role in relation to property complaints will continue to be properly exercised in relation to complaints originating from, or relating to, Scottish property. 22. In my report for 1997 I explained in detail the provisions of the Police Act 1997 (the 1997 Act) which relate to the issue of authorisations to the police and HM Customs and Excise to conduct intrusive surveillance which involves entry on or interference with property or wireless telegraphy which would otherwise be unlawful. Last year I reported that implementation of these important provisions had been delayed. I can now confirm that the 1997 Act provisions were formally implemented on 22 February 1999. It is not within my statutory responsibility to comment in detail on the operation of this new system. Indeed, responsibility for the new arrangements ultimately rests with Sir Andrew Leggatt, the Chief Surveillance Commissioner. 23. I have been, and remain concerned with a particular aspect of the 1997 Act provisions. Before the 1997 Act came into force, I was assured that the police had not used their power under the existing 1984 Home Office guidelines regulating this activity in counter-terrorism cases. The view had been taken, quite properly, that this remained a matter for the Security Service. I was assured that this would continue to be the case when the 1997 Act was implemented and reference was made to this point in the Intrusive Surveillance Code of Practice approved by Parliament in connection with the performance of the 1997 Act functions. The code of practice makes it clear that Police Act authorisation should not be sought as a means of carrying out operations which properly fall to be authorised by a Secretary of State under the warrantry provisions in the Intelligence Services Act 1994. 24. In conducting my warrantry reviews I have sought to assure myself that this important distinction has been observed. On the basis of this review, as far as I am able to judge, I can report that I believe it has been. Those involved in the operational process have been advised of the respective operational and warrantry requirements and this distinction has been applied. It is clearly important that this remains to be the case. This is not an easy objective to satisfy as the distinction between serious criminals and terrorists can be blurred. Those involved in serious crime and terrorism are not individuals who are easily pigeon-holed and some individuals are clearly prepared to diversify from one activity to the other. And terrorist organisations often resort to drug dealing, smuggling and robbery to finance their activities. It is therefore difficult to avoid an operational response which, although based on a commonality of approach must, by its very nature, be decided on a case by case basis. It is clearly important that the operation of this system remains subject to close scrutiny. Application of the Urgency Procedure for issuing Property Warrants 25. In my report as Intelligence Services Commissioner for 1998 I referred to an apparent problem with the application of the urgency provision in the Act which I outlined in paragraph 10 above which had been identified in the course of my warrantry review. I had noted an operation where a Secretary of State had authorised the issue of warrants in accordance with the urgency provision in section 6(1)(b) of the Act to an official of another Department. This matter is equally relevant to this report as the Security Service obtains property warrants under sections 5 and 6 of the Intelligence Services Act 1994. I queried this practice, which appeared to fall outside section 6(1)(b) which provides that a warrant may be issued: "in an urgent case where the Secretary of State has expressly authorised its issue and a statement of that fact is endorsed thereon, under the hand of a senior official of his Department". I reported that a review of the application of section 6(1)(b) was underway, and undertook to report to you on this matter again. I have referred to this Review in my report to you for 1999 under the Intelligence Services Act 1994. 26. For the purpose of this report I should advise that all warrantry agencies and departments were part of the review which confirmed that, in a limited number of cases, officials had issued warrants on the authority of a Secretary of State of a different department. In accordance with my established practice regarding numbers of warrants I do not intend to provide figures, but will comment that the number involved was low and reflected the fact that the urgency procedure is used sparingly. 27. My opinion was sought on the lawfulness of warrants issued in this manner. Even though the office of the Secretary of State is held to be indivisible, I had no doubt that the wording of section 6(1)(b) should be interpreted in accordance with its plain meaning so that only an official of the Department of the Secretary of State may sign a warrant under the authority of that Secretary of State. I know that the review also encompassed warrants issued under the Interception of Communications Act 1985, and that the Commissioner appointed under that Act, Lord Nolan, shared this opinion. I have no doubt that the warrants in question were properly targeted, albeit technically flawed. On the basis of the review, I advised officials in the warrantry Departments that any extant warrants initially issued in the flawed manner described should be re-issued to avoid any potential for doubt regarding their lawfulness. Administrative practice and procedure has been fully reviewed and revised to avoid any scope for future repetition. Any future complaints submitted to the relevant Tribunal involving warranted activity will continue to be closely scrutinised to ensure full compliance with the Act. 28. I believe it is important that I add for the record my belief that the urgency provisions remain very important. There are fast moving operations where valuable intelligence may be lost if the urgency procedures do not function as intended. The procedures which have been put in place as a result of the review remove potential for future confusion, whilst ensuring clarification of practice and procedure. 29. In my report for 1996 I referred to an issue raised by the Security and Intelligence Services with the Security and Intelligence Services Tribunals regarding their statutory position in relation to agency employees who might seek redress in relation to matters which, but for security considerations, might have been dealt with by an industrial or employment Tribunal. I have also referred to this issue in my annual report as Intelligence Services Commissioner for 1999. 30. It may be helpful if I explain that for reasons of national security, it was until 1996 the Government's policy to apply a general ban on access by employees of the Security or Intelligence Services to industrial tribunals and the Secretary of State had issued a certificate under a provision incorporated in section 193 of the Employment Rights Act 1996 effectively barring all persons employed by these services from access to an industrial tribunal. 31. I explained in my earlier report that in light of, amongst other things, changes in employment rights, this policy had been reviewed. Procedural safeguards had been introduced in 1993 to enable an industrial tribunal to hear sensitive cases involving national security in camera or by the President sitting alone. Where those safeguards could not be applied, staff of the security and intelligence services would in future be allowed access to an industrial (now employment) tribunal. In other cases, access would continue to be disallowed by the issuing of a certificate under section 193. In this last category of cases the agencies sought the opinion of the Security Service Tribunal as to whether recourse could be had to them. 32. The Security Service Tribunal concluded that the 1989 Act was never intended to cover the handling of complaints from members of the agencies about employment matters such as unfair dismissal. The Security Service Tribunal is therefore unable to consider such complaints except where they relate specifically to vetting. The Tribunal further concluded that if it was intended that they should be the body dealing with matters of this kind in which there are security considerations, then the 1989 Act required amending to enable them properly to do so. I agreed with this assessment. I have referred to this issue in my reports as Intelligence Services Commissioner for 1997 and 1998, advising in the latter report that a detailed proposal was in the process of formulation. I undertook to report to you again. 33. The issue was specifically addressed this year with the introduction of Government amendments to the Employment Relations Bill. It is fair to comment that the amendments were tabled at a late stage when the Bill had reached Report stage in the House of Lords. The amendments effectively removed existing Ministers' powers to exclude Crown employment for national security reasons from rights conferred under the Employment Rights Act 1996, replacing it with a power to direct that proceedings be heard by a separate, specialist employment tribunal with special procedures in place to safeguard national security. The Bill provided for the Secretary of State to direct that the tribunal may sit in private for all or part of any proceedings, exclude the applicant from all or part of the proceedings and for the appointment of a representative by the Attorney General or Advocate General for Scotland to represent the interests of the applicant. I am aware that the Intelligence and Security Committee voiced concern regarding these provisions and tabled amendments which would have made the Secretary of State's power to exclude a matter for review by the Security Service and Intelligence Services Commissioner. If these amendments had proved acceptable to Parliament, I made it clear that I would be content to undertake this role. I was apprehensive at certain aspects of the amendments, including possible workloads. In any event, however, they were not accepted. The Government clearly took the view that challenge by means of Judicial Review was the preferred route for challenging the use of the power of direction vested in the Secretary of State and the Bill received Royal Assent. 34. I am heartened that the Government has taken action in what I have continued to stress is an important field, which required clarification. I understand that further work is being taken forward to draft the regulations and procedures required for employment tribunals in cases involving national security. I would expect that the Security Service Commissioner and Tribunal be kept fully appraised of developments. 35. Any person may complain to the Security Service Tribunal if they are aggrieved by anything which they believe the Service has done in relation to them or their property. The Tribunal is independent of Government and comprises three members of the legal profession. In cases where a complainant alleges that anything has been done by the Service to his property, the Tribunal must refer this to me for investigation. Complaints about the Security Service should be addressed to the Security Service Tribunal, PO Box 18, London SE1 0TZ. Complaints which relate specifically to the interception of communications by the Security Service should be addressed to the Interception of Communications Tribunal, PO Box 12376, London SW1P 1XU. 36. In my report for 1997 I explained that since the Tribunal had been established on 18 December 1989 it had considered 275 complaints with 13 further cases remaining under consideration as of 31 December 1997. I offered the following observations: "It will be noted that in all cases neither the Tribunal nor myself had found in the favour of the complainant. A substantial number of complaints made could well have been regarded as frivolous or vexatious and thus not investigated. Since, however the investigation of such complaints is relatively straightforward the Tribunal has erred on the side of caution and accepted them rather than reject them on this basis. Of the total number of complaints received enquiries made by the Tribunal have revealed that in 36 cases the complainants were the subject of a personal file in the Security Service and 70 cases where the applicant had corresponded with the Service or had been the subject of a vetting disclosure. In some of the cases the action took place prior to the commencement of the 1989 Act but the Service, as a matter of good practice, always disclose the information they have or have held. Since 1989 I have considered 108 applications in which the complainant has alleged that their property has been interfered with. One was still under investigation at 31 December 1997. Of this total my enquiries have established that in one case only a warrant has been issued". 37. To bring matters fully up to date and to ensure the public is fully informed, I can now report that as of 31 December 1999 the Tribunal has considered a total of 338 complaints with 3 outstanding. Of the total number of complaints received enquiries made by the Tribunal have revealed that in 42 cases the complainants were the subject of a personal file in the Security Service and 85 cases where the applicant had corresponded with the Service or had been the subject of a vetting disclosure. I have considered 141 property complaints. It remains the position that a warrant had been issued in one case only. Investigation of Complaints - 1999 38. The following information is relevant to the complaints received and investigated by the Tribunal during 1999:
39. No determination has been made in favour of a complainant. Complaints in relation to property 40. The following information relates to complaints received by the Tribunal which related to property and which were referred to me:
41. I have made no determination in favour of a complainant in those cases completed in 1999. References under Schedule 1, Paragraph 7 42. The Security Service Tribunal are required to refer certain matters to me. If, in the course of investigating a complaint they consider the Service may not be justified in regard to all members of a particular category (eg extremist organisations) as requiring investigation or in the course of investigating a complaint the Tribunal, while making no determination in his favour, consider it appropriate for there to be an investigation into the question whether the Service has in some other respect way acted unreasonably in relation to the complainant or his property, they must refer the matter to me. No such references have been made to me in 1999. 43. Two errors have been reported to me in 1999. I have referred to these in detail in the annex as it is impossible to discuss them without revealing information of a sensitive nature. I can report that the first error occurred when an operational team deployed outside the target location specified in the relevant property warrant. Whilst the interference or entry on property was admittedly minimal in this case, an unauthorised intrusion had clearly occurred. I have since discussed warrantry arrangements with the relevant bodies to remove the potential for a repeat of this problem. The second error occurred when a property warrant specifying separate areas in one premises was reviewed and it was accordingly decided not to seek a renewal but to cancel and request a fresh warrant targeting one of the areas only. Unfortunately the necessary paperwork was not completed in time and the absence of a warrant was identified after a period of 15 days. All product received in this unwarranted period has been destroyed. I am satisfied that record keeping procedures are generally robust enough to avoid occurrences of this sort. This error clearly resulted from a combination of factors. Nevertheless lessons have been learned and there should be no repetition of this problem.
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