Evidence to Protection of Freedoms Bill Committee

The Information Commissioner and Campaign for Freedom of Information gave oral evidence to the Protection of Freedoms Bill Committee on 24 March 2011. You can watch a recording of the evidence session here.

A note submitted to the Committee setting out the Campaign's views on the Bill is available here. The Information Commissioner's written evidence to the Committee is here.

Committee says govt should review time limit for prosecutions under s. 77 of the FOI Act

The Science and Technology Committee has published its report on the disclosure of climate data from the Climatic Research Unit (CRU) at the University of East Anglia. The report recommends that the Government should review the current six month time limit for prosecuting an offence under section 77 of the Act, which makes it an offence to deliberately destroy, alter or conceal a record after it has been requested with the intention of preventing disclosure. This is an issue which the Campaign for Freedom of Information has previously raised and was taken up by Lord Dubs who attempted to make an amendment to the Coroners and Justice Bill in July 2009 to extend the limit.

If the Minister was correct to assert in July 2009 that the Government had no evidence that the current six-month time limit presents a systemic problem, then it is now clear that such evidence exists. Irrespective of whether or not CRU breached the Freedom of Information Act 2000, we recommend that the Government review the operation of section 77 of the 2000 Act and the six month limit on the initiation of prosecutions provided by section 127(1) of the Magistrates Court Act 1980. (Paragraph 95) 

The report also recommends:

We regret that the ICO made a statement to the press that went beyond that which it could substantiate and that it took over a month for the ICO properly to put the record straight. We recommend that the ICO develop procedures to ensure that its public comments are checked and that mechanisms exist to swiftly correct any mis-statements or misinterpretations of such statements. (Paragraph 91)

There is prima facie evidence that CRU has breached the Freedom of Information Act 2000. It would, however, be premature, without a thorough investigation affording each party the opportunity to make representations, to conclude that UEA was in breach of the Act. In our view, it is unsatisfactory to leave the matter unresolved simply because of the operation of the six-month time limit on the initiation of prosecutions. Much of the reputation of CRU hangs on the issue. We conclude that the matter needs to be resolved conclusively—either by the Independent Climate Change Email Review or by the Information Commissioner. (Paragraph 93)  

We have already recommended in paragraph 54 above that in future information, including data and methodology, should be published proactively on the internet wherever possible. However, a culture of withholding information—from those perceived by CRU to be hostile to global warming—appears to have pervaded CRU’s approach to FOIA requests from the outset. We consider this to be unacceptable. (Paragraph 103)

We cannot reach a firm conclusion on the basis of the evidence we took but we must put on record our concern about the manner in which UEA allowed CRU to handle FOIA requests. Further, we found prima facie evidence to suggest that the UEA found ways to support the culture at CRU of resisting disclosure of information to climate change sceptics. The failure of UEA to grasp fully the potential damage to CRU and UEA by the non-disclosure of FOIA requests was regrettable. UEA needs to review its policy towards FOIA and re-assess how it can support academics whose expertise in this area is limited. (Paragraph 104)

Download the report here.

Former Commissioner Richard Thomas gives evidence on s.77 and UEA climate data

Former Information Commissioner Richard Thomas has given evidence to the Science and Technology Committee's inquiry into the disclosure of climate data from the Climatic Research Unit at the University of East Anglia.

Q56 Chairman: We welcome in our second panel, seamlessly, Richard Thomas, the former Information Commissioner. Thank you very much indeed for joining us this afternoon. You recommended that the Freedom of Information Act 2000 should be amended so that a prosecution could be brought within six months of evidence of the offence coming to the attention of the Commissioner’s knowledge. We have heard reference to this in the previous panel. Why do you consider that such a change should be made?

Mr Thomas: Thank you for your welcome, Chairman. I am happy to assist the Committee to the best of my ability. If I could answer your question in context, I have put a written submission to the Committee which, I think, is on your website. I set out that I might be able to help you with the rationales and the policy objectives of the legislation and its application in practice. I have outlined how the Act works and its application in general and in particular. This situation we are dealing with now may well engage the Environmental Information Regulations as much as the Freedom of Information Act, but they are broadly similar, with some important differences. I concluded my submission to you by making three suggestions. One was that the six-month limit for criminal prosecution under section 77 should be changed. That was your question. Secondly, I made some suggestions in relation to the Muir Russell review and, thirdly, suggested there might be more proactive disclosure of publicly funded research. On the question of the six-month limit, I set out in my memorandum at section 77 of the Act and the corresponding regulation 19 in the Environmental Information Regulations the only part with a criminal sanction and, in my view, a very important part of legislation, designed to prevent the destruction, the alteration, the suppression of information once a request has been made, but I set out in my submission there are three really quite key issues here. First of all, it is only information to which the applicant is entitled; so it is only if none of the exemptions, for example, apply and information would have been discloseable under the legislation that the offence is committed; secondly, there has to be the intention of preventing disclosure under the legislation, and proving intent in this situation is always going to be difficult; and, thirdly, because of the interaction with the Magistrates Court Act, any prosecution must be brought within six months of the offence being committed, and I think it is that which perhaps caught the public’s attention towards the end of January, that latter part; but I made the point in my submission that this is not a new issue, in fact, it surfaced during a debate on the Coroners and Justice Bill in 2009 when certain amendments to information laws were being made at that time, and I outline in my submission how Lord Dubs had tabled an amendment in the House of Lords during the course of the consideration of that Bill proposing that, as in other areas of regulatory life, the six-month limit should be changed so that it is when it comes to the attention of the Commissioner, or the prosecutor. The Commissioner is the prosecutor in this particular case.

...
Q70 Ian Stewart: That leads me to my next question. It is quite clear from the email exchanges that these scientists were exasperated. Their argument was that they just wanted to get on with their job, and one of the plaintiffs says that he did not want to deal with the hassle, he just wanted to do his job. Do you have any sympathy with the exasperations of scientists at CRU?

Mr Thomas: I think one can understand what I might call the human dimension of this, and sympathy is not the right word in this context, but I can understand perhaps why people sometimes felt exasperated. We came across public authorities in Whitehall, local authorities up and down the country with this sense of exasperation and being on the receiving end of large numbers of quite difficult cases. There is doubt about that; I can see that. At the same time, the legislation is there - there is the right to know - and in many cases the simplest approach, particularly where requests tend to generate either a defensive attitude or place a great burden on the public authority, is proactive disclosure in the first place. I often use what I call the Crown Jewels approach. Public authorities ought to decide what really has to be kept away from the public. If it is particularly sensitive or there is a good reason for withholding it, fair enough, but where there is no good reason for withholding information, then why not proactively disclose it and avoid the hassle of large numbers of requests?

Q71 Ian Stewart: We now understand the impact of hassle, as it was put by one of the correspondents.

Mr Thomas: Can I add one comment, if I you do not mind, Mr Stewart. I do not think that hassle, or whatever word we are going to use, justifies the deliberate destruction of requested information.

Q72 Ian Stewart: Can you let me ask the question and then you may come to it: because that is at the heart of the next part of the question that I want to ask you. Do you consider that what we have seen at CRU is muddle, irritation under pressure, rather than the intention to breach the Act?

Mr Thomas: I simply do not have nearly enough inside information; I have no inside information, I cannot answer that question. All that I can say is that some of the material that has surfaced in the media and elsewhere, where phrases like "hiding behind" or "please delete this particular email" to any Commissioner – myself when I was Commissioner, to the current Commissioner – is something which prima facie needs investigation because that section 77, which we discussed earlier, is a very important part of the Act. When it first came into force there were many headlines, "The shredding machines at Whitehall are working day and night". We asked for allegations to come forward; none came forward at all. It is a very serious part of the Act, virtually every public authority stresses to its staff "Do not destroy information when it has been deleted." I make no allegations whatsoever against the university; all I am saying is that in some of the emails that have surfaced there is prima facie evidence which I think would have required investigation had it not been for the six month limit.

An uncorrected transcript of the evidence is available here.
The memorandum submitted to the Committee by Richard Thomas is here.

More on time limit for prosecutions under s77 of FOIA

A number of comments on other blogs have suggested that a prosecution could be brought under section 77 of the FOI Act even if it was more than 6 months after the offence had been committed.

Section 127(1) of the Magistrates Court Act states that “a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose."

The question is: does this mean that a prosecuting authority can initiate a prosecution either within 6 months of the offence occurring or within 6 months of a "complaint" about this matter being made?

Section 127(1) of the Magistrates Court Act appears to be referring to two different types of proceedings, proceedings for an offence and proceedings which involve the making of a complaint to the court. We do not think they should be seen as two different ways of referring to the same potential prosecution.

An example of proceedings for a “complaint” can be found in section 82 of the Environmental Protection Act 1990 which states:

"A magistrates' court may act under this section on a complaint made by any person on the ground that he is aggrieved by the existence of a statutory nuisance."

This type of proceeding would have to be brought within 6 months from the date when “the matter of the complaint arose”.

The “date on which the matter of the complaint arose” does not seem to refer to the date on which the complaint was made, but to the date of the events which led to the complaint.

This seems clear if you strip out the references to an “offence” in section 127(1) but keep those which refer to a complaint. The section then reads:

“a magistrates’ court shall not... hear a complaint unless ...the complaint [was] made, within 6 months from the time when...the matter of complaint arose.”

That is not saying that the court must hear the complaint within 6 months of the complaint being made but within 6 months of the matter complained about occurring. In relation to a complaint about statutory nuisance under the Environmental Protection Act, the court would have to deal with the matter within 6 months of the nuisance occurring.

This suggests that what section 127(1) means is that (a) where proceedings for an offence are brought, they must take place within 6 months of the offence occurring and (b) where proceedings relating to a complaint are brought, they must take place within 6 months of the events which are complained about.

Many laws other than the FOI Act have been amended to extend this 6 month limit. None of those amendments would have been necessary if section 127(1) of the Magistrates Court Act already allowed a prosecution to be brought either within 6 months of the offence occurring or within 6 months of it coming to light.

One recent example are the Building Regulations. In July 2007, the Department of Communities and Local Government issued a consultation paper seeking views on whether the 6 month limit should be extended in relation to these regulations. The paper, entitled “Longer time limits for prosecution of breaches of Building Regulations” said:

"2.4. Because prosecutions must be brought in a magistrates’ court, they must comply with the rules relating to such courts. Currently, section 127(1) of the Magistrates’ Courts Act 1980 requires that any prosecution in a magistrates’ court must be brought within 6 months of the date the offence was committed. Consequently, local authorities must bring prosecutions under section 35 of the Building Act for breaches of building regulations within 6 months of completion of the offending work. Representations have been received from representatives of local authorities and others that this can operate as an obstacle to effective enforcement, given that there can be latent breaches or those discovered after the expiry of the 6 months’ time limit. Such a regime can be difficult to administer when the pressure of normal building control work can crowd out resources for prosecution."

Later the consultation paper says:

"Organisations representing local authorities have made repeated representations in recent years about the effect that the current time limits have on their ability to pursue non-compliance. With the 6 month time limit for starting proceedings at magistrates’ courts running from the date of the offence, i.e. the completion of the offending works, and late emergence of (what may not be obvious) building defects, this can easily eat into the time that local authority prosecutors need to prepare an effective case. As a result, cases of non compliance can escape prosecution."

Following this consultation, the Building Regulations were amended by The Building (Amendment) Regulations 2008. The new regulations allow a prosecution to be brought within 2 years of the offence being committed, provided this was within 6 months of the prosecuting authority learning about the offence. Clearly, this change would not have been needed if section 127(1) already had the wider meaning that some have suggested.

In July 2009 the Campaign for Freedom of Information drafted an amendment, which Lord Dubs attempted to make to the Coroners and Justice Bill. This would have amended the Freedom of Information Act to allow a section 77 prosecution to be brought within 3 years of the offence being committed, provided it was within 6 months of the ICO obtaining evidence of the offence. The Information Commissioners Office supported this amendment.

The government did not accept the amendment because - it claimed - there was no evidence that the 6 month limit was causing systemic problems. It did say that if such evidence arose, it would look for ways to put the matter right, and if necessary amend the FOI Act. If the government accepted that the 6 month limit only ran from the time when the ICO became aware of the offence, it would have said the amendment was unnecessary for that reason.

That has also tended to confirm that section 127(1) does not at present allow a prosecution to be brought more than 6 months after the offence itself has occurred, and that the FOI Act should be amended so that prosecutions can be brought after that 6 month period is over.

In the Sunday Telegraph on January 30 2010, Christopher Booker suggested that a prosecution for conspiracy to commit an offence under s 77 of the FOI Act could be brought under the Criminal Law Act 1977, even if the 6 month period had expired.

However, it appears that any proceedings for conspiracy to commit an offence would be subject to the same time limits as those applying to the offence itself. Section 4(4) of the 1977 Act states:

"Where (a) an offence has been committed in pursuance of any agreement; and (b) proceedings may not be instituted for that offence because any time limit applicable to the institution of any such proceedings has expired, proceedings under section 1 above for conspiracy to commit that offence shall not be instituted against any person on the basis of that agreement."

This suggests that, even if a conspiracy charge were possible, it would not provide a way round the problem created by the 6 month limit on prosecutions in the Magistrates Court Act.

Time limit for prosecutions under s.77 of the FOI Act

The ICO's statement that the university at the centre of the 'climategate' email scandal did not deal with FOI requests as it should have done under the legislation has received a lot of media attention. Section 77 of the Act makes it an offence for any person to deliberately destroy, alter or conceal a record after it has been requested with the intention of preventing its disclosure. The offence is triable only in the magistrate's court. However, under section 127(1) of the Magistrates Court Act 1980, proceedings for all such offences must be brought within 6 months of the offence occurring.

In a statement on the University of East Anglia case, the Deputy Information Commissioner Graham Smith said:

The FoI Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure of requested information. Mr Holland's FOI requests were submitted in 2007/8, but it has only recently come to light that they were not dealt with in accordance with the Act. The legislation requires action within six months of the offence taking place, so by the time the action came to light the opportunity to consider a prosecution was long gone.

This problem came to the Campaign for Freedom of Information's attention last year. It was clear that the offence could rarely be detected in time for a prosecution to be brought. It can take several months before an authority responds to a request and carries out the internal review which is necessary before a complaint can be made to the ICO. Once complaints were made, it took on average 8 months before the ICO investigation even began, according to a report we published in July 2009. This means it would usually be impossible for the ICO to detect an offence within 6 months of it occurring.

The Campaign therefore drafted a proposed amendment to section 77 to extend the time limit for prosecutions. The amendment was identical to provisions already found in several other statutes, such as the Animal Welfare Act 2006 and the Theft Act (amended by the Vehicles (Crime) Act 2001), where the government itself had decided to extend the 6 months limit for prosecutions. More recently, in 2008, the Building Regulations were amended following a public consultation, as local authorities had maintained that the 6 month period did not allow prosecutions to be brought where a breach of the regulations only came to light after completion of the building work or where remediation of the work had been promised but not carried out.

The proposed amendment would have allowed a prosecution to be brought within 6 months of the evidence of the offence coming to the Commissioner's knowledge, rather than within 6 months of the offence being committed. The amendment was tabled to the Coroners and Justice Bill by Lord Dubs. However, the government rejected this opportunity to close the obvious loophole - though it was clear then that if an authority deliberately shredded records it would almost certainly avoid punishment.

Responding to the amendment, the minister Lord Bach said:

The Freedom of Information Act 2000 came into force only in 2005, and I have to tell my noble friend that we have no evidence at present that the current six-month time limit presents a systemic problem for the Information Commissioner or any other prosecutor in taking action under Section 77. However, I shall say this, which I hope will give my noble friend some comfort. We will listen to the views of the Information Commissioner and other interested parties on this point, and if there is evidence that the current legislation is causing systemic difficulties, we will look for ways to address the matter, if necessary by means of an alternative legislative vehicle in the future. However, I cannot go further than that today on behalf of the Government.

The full debate on the amendment is here.