Archives for Maurice Frankel

FOI extension promised by Conservative/LibDem coalition agreement

The coalition agreement between the Conservatives and Liberal Democrats, published today, promises an extension to the FOI Act. The relevant section states:

10. Civil liberties

The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour government and roll back state intrusion.

This will include:

• A freedom or great repeal bill;

• The scrapping of the ID card scheme, the national identity register, the next generation of biometric passports and the Contact Point database;

• Outlawing the fingerprinting of children at school without parental permission;

• The extension of the scope of the Freedom of Information Act to provide greater transparency;

• Adopting the protections of the Scottish model for the DNA database;

• The protection of historic freedoms through the defence of trial by jury;

• The restoration of rights to non-violent protest;

• The review of libel laws to protect freedom of speech;

• Safeguards against the misuse of anti-terrorism legislation;

• Further regulation of CCTV;

• Ending of storage of internet and email records without good reason;

• A new mechanism to prevent the proliferation of unnecessary new criminal offences.
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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.

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Government uses the veto again

The government has issued a second veto, preventing the disclosure of information under the FOI Act. This follows the veto in February 2009 of cabinet minutes relating to the war in Iraq.

The present case involves a request to see the minutes of the 1997 meetings of the cabinet subcommittee on devolution in Scotland, Wales and the English regions. The committee had been chaired by Lord Irvine, the then Lord Chancellor.

The government withheld the information under the FOI Act exemptions for policy formulation and ministerial communications (section 35(1)(a) and (b)). In June 2009 the Information Commissioner ruled that these should be disclosed. He concluded that the issue was no longer ‘live’ as, by the time of the request in 2005, the policy questions had been settled and devolution had long been introduced in Scotland and Wales. He found that only 1 member of the cabinet committee concerned was still in government. The minutes did not attribute views to any specific minister or offer much insight into the debate or the contributions of individual ministers.

The Commissioner concluded that:

33….he rejects the blanket approach taken by the Cabinet Office which is that disclosure of the minutes, regardless of content is not in the public interest as it would undermine the convention of collective responsibility. Whilst the convention and it [sic] maintenance is one of the public interest factors to be considered, and it is a factor that the Commissioner places much weight upon, it is only one element of the public interest test.

34. In this case, the issues discussed and recorded in the minutes continue to be of significant public interest, but the sensitivity of the specific content has reduced with the passage of time. The Commissioner finds that, on balance, the public interest in maintaining the exemption does not outweigh the public interest in disclosure of the information.

The Iraq veto overruled a decision of the Information Tribunal – this one deals with a decision of the Commissioner. Remarkably, the government had appealed to the Tribunal in this case too: the Tribunal hearing was due to start at the end of January 2010. It is not clear why ministers should change course at such a late stage. If the government had intended to use the veto it could have done so when the Commissioner’s decision was issued, nearly six months ago.

One possibility may be that the government wanted to avoid a Tribunal decision appearing in spring 2010 forcing ministers to disclose or veto the release of the devolution papers just before or during a general election campaign. The actual timing of the veto – announced on the day the House of Commons published a highly contentious batch of MPs’ expenses – is likely to have reduced press coverage of the issue.

Jack Straw, the Justice Secretary and Lord Chancellor, in his statement of reasons for the veto identifies a number of factual disagreements with the Information Commissioner. The Commissioner found that only 1 member of the Cabinet committee was still in government at the time of the request. Mr Straw says that in fact 15 of those who attended committee meetings were ministers when the request was made and 7 of them are still ministers.

He also disagrees with the Commissioner’s view that the policy issues discussed in 1997 are no longer live. He says Welsh devolution was still being considered in 2005 at the time of the request – and led to the Government of Wales Act 2006.

Mr Straw also disagrees with the Commissioner’s view that the papers provide little insight into individual ministers’ views, observing that the views of a number of individuals, including some current ministers, are attributed to them in the minutes.

If Mr Straw is right, he would have had reason to believe that he would succeed in persuading the Tribunal to overturn the Commissioner’s decision. The failure to allow the Tribunal to examine the issues is all the more surprising.

Mr Straw’s statement also says the veto will only be used on a case by case basis, taking account of all the circumstances and that the government has “no fixed view on when the use of the veto power would be appropriate”.

The relevant factors include whether the papers reveal the substance of policy discussion or just the process, whether the issue was significant at the time and remains so, whether the views of individual ministers are identifiable, whether the ministers are still active in public life and their views on any possible disclosure. That suggests that there may be cases where the government would not veto disclosure of relatively innocuous cabinet material if the Commissioner or Tribunal required it, even it believed the public interest favoured confidentiality.

That position is surely preferable to the proposed blanket exemption for all such papers. The government has said it will introduce a new absolute exemption for cabinet papers (plus a separate absolute exemption for communications with the royal family) as part of a package involving the release of government papers after 20 years instead of the current 30 years.

But if ministers now feel free to exercise the veto – twice in one year, so far – is the new exemption necessary? And if ministers acknowledge that they might permit the release of certain cabinet or cabinet committee papers before 20 years, what is the case for the new exemption ruling out any such disclosure altogether?

Read the Information Commissioner’s decision here and the veto announcement and statement of reasons.

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Tribunal ruling on naming staff

Comment by Jim Matthew

The issue of release of personal information relating to members of staff (operating in a professional capacity) is one that has been exercising FOI professionals since the Act came into force in 2005. Although the Information Tribunal take pains to point out that their decision should not be seen as setting any precedents, in conjunction with previous decisions, http://www.informationtribunal.gov.uk/Files/ourDecisions/ministryofdefencevinformationcommissionerandrobevans(20july2007).pdf does help to clarify the situation somewhat (albeit that the typo in article 1 of the decision is particularly confusing (referring to “below” when the subsequent text makes it clear that it should be “above”)).

In general, 3 exemptions have been used to refuse to disclose the names of officials;

– Section 36 (prejudice to effective conduct of public affairs)
– Section 38 (health and safety); and
– Section 40 (personal information).

Section 36 is the most contentious. The only justification for trying to use it is that any official would receive so many phone calls/e-mails/other correspondence as a result of being named that they could no longer perform the job they were being paid to do. Given how easy it is to screen e-mails, phone calls etc these days (or change them if required), not to mention any concept of public accountability for those performing duties which have a public impact, this has always seemed a bit tenuous when applied in general terms! However, it can be applied to junior staff members. Junior public servants might have a role to play in the creation of information but, even if they drafted a document, they are not expected to take responsibility for it (it would be written on instruction from, and reflecting the views of, a more senior official who would take responsibility), more often, they have probably only been copied in for information (or to ensure a document is correctly filed). There now seems to be a concensus (supported by this IT decision) in support of this view and section 36 can only be used to prevent the disclosure of names in very specific circumstances (in this particular instance, a simple staff directory, staff at or below B2 level – which equates roughly to Higher Executive Officer in the broader civil service – not in a public-facing role).

Section 38 has been commented on in some detail, including in this IT decision (but most clearly in decisions issued by the Scottish Information Commissioner), and it is now obvious that this can only be applied where there would be a real, genuine and demonstrable threat that the safety of staff members would be threatened if their name were made public (and, according to this particular IT decision, only if measures to protect the individuals concerned were not already in place).

Section 40 is perhaps the most interesting exemption. Both the Information Commissioner and the Tribunal accept that names, work phone numbers and work e-mail addresses of staff members are personal data under the Data Protection Act, and therefore covered by the exemption in section 40 of the FOI Act. However, this decision reinforces the Commissioner’s guidance (http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/freedom_of_information_-_access_to_information_about_public_authority_employees.pdf) which states that “professional” information should be handled differently from personal and private information (e.g. you should not get details of a staff member’s disciplinary records which are personal data and clearly exempted under section 40, but details of that same staff member’s involvement in determining policy etc), should be released.

This Tribunal decision therefore makes it even clearer that public authorities should only withhold staff names if;

they are not already available elsewhere and the member of staff is not in a public-facing role;
they are particularly junior (B2/HEO level in the latest IT decision) and not immediately responsible for the requested information; or
there is a clear and demonstrable threat to that individual’s health and safety if their name is made public.

J Matthew
21/07/07

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