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.