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Back in February, Desdemona asked the Information Commissioner’s Office (ICO) about its findings in the so-called “Climategate” incident:

I'm curious to know more about the alleged breaches committed by the University of East Anglia after the vexatious FoI requests submitted by ClimateAudit[1]. UEA has publicly defended itself by saying, "The ICO's opinion that we had breached the terms of Section 77 is a source of grave concern to the university as we would always seek to comply with the terms of the act. During this case we have sought the advice of the ICO and responded fully to any requests for information." [2]

Is it the case that UEA worked with ICO during the FoI request blizzard[3]? In the wake of the hacking attack on UEA computers, there is intense interest in the climate science community to reconstruct the exact sequence of events.

Yesterday, ICO sent a substantial reply. The most important paragraph to me is this:

The ICO has received specific complaints about the University under the legislation which we oversee from individuals who had requested information from them and our investigations into how these requests have been dealt with remain ongoing.

Alas, no juicy details about the FoI request blizzard deployed by the anti-science crowd at CA, but the promise of interesting findings still hangs in the air.

Here’s the reply in its entirely:

31 March 2010

Case Reference Number ENQ0295784

Dear Desdemona

Thank you for your correspondence dated 11 February regarding the University of East Anglia and the Freedom of Information Act 2000 (FOIA).

Firstly we would like to apologise for the delay in responding to your correspondence. At the present time our office is dealing with large volumes of work. This has meant that we have been unable to deal with incoming correspondence as promptly as we would like.

The ICO received a specific enquiry from a Sunday Times journalist in relation to the University of East Anglia on 21 January 2010. The ICO’s response to the enquiry was provided by our Deputy Commissioner and Director of FOI, Graham Smith, on 22 January 2010 as follows;

Norfolk Police are investigating how private emails have become public. The Information Commissioner’s Office is assisting the police investigation with advice on data protection and freedom of information. The emails which are now public reveal that Mr Holland’s requests under the Freedom of Information Act were not dealt with as they should have been under the legislation. Section 77 of the Freedom of Information 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 taken came to light the opportunity to consider a prosecution was long gone. The ICO is gathering evidence from this and other time-barred cases to support the case for a change in the law. It is important to note that the ICO enforces the law as it stands – we do not make it. It is for government and Parliament to consider whether this aspect of the legislation should be strengthened to deter this type of activity in future.  We will be advising the University about the importance of effective records management and their legal obligations in respect of future requests for information. We will also be studying the investigation reports (by Lord Russell and Norfolk Police), and we will then consider what regulatory action, if any, should then be taken under the Data Protection Act.”

For clarification the ICO has not made a “decision” in regard to allegations of a breach of the FOIA by the University of East Anglia. While the above statement says that “Mr Holland’s requests under the Freedom of Information Act were not dealt with as they should have been under the legislation” it does not state that we have determined that an offence under section 77 had been committed. Section 77 is only one part of the FOIA that a public authority should comply with.

Section 77 of the FOIA makes it an offence for any person to deliberately alter, deface, block, erase, destroy or conceal a record after it has been requested with the intention of preventing its disclosure. Regulation 19 of the Environmental Information Regulations 2004 (EIR) mirrors the provisions of section 77.

The offence is a summary matter which means it is triable only in the Magistrates’ Court. Under section 127 of the Magistrates’ Court Act 1980, proceedings for all such offences must be brought within 6 months of the offence occurring.

The actual wording of section 127 is that a prosecution is to be commenced “within 6 months from the time when the offence was committed, or the matter of complaint arose”.

The 6 month period is calculated from the date when the actual offence was committed, i.e. the date of the alteration or destruction of the record. It is important to note that the reference to “the matter of complaint” arising in section 127 is not a reference to a complaint being made to the ICO, but references a particular way of bringing a prosecution to court. The 6 month time limit for commencing a prosecution cannot be calculated from the date on which ICO is made aware of the offence.

It is to be noted that a very small number of cases may result in an offence being deemed a continuing offence and may permit the 6 month time limit for commencing a prosecution to be extended beyond the usual 6 months. However each case will be considered on a case by case basis and any such continuing offence time periods will be determined in the applicable cases. This is most likely to be relevant in a case of continuing concealment of information rather than destruction, deletion or erasure.

The Government has sought to amend other pieces of legislation (such as Building Regulations) to remedy the problem of a 6 month cut off period. The ICO can only enforce the law currently in place and has no responsibility for the legislation. The ICO will continue to provide evidence to the Ministry of Justice of cases affected by the six month cut off period.

In regard to the allegations of a breach of the FOIA by the University of East Anglia's Climate Research Unit by the time this came to light if an offence under section 77 had been committed the opportunity to consider a prosecution had gone.

The ICO has received specific complaints about the University under the legislation which we oversee from individuals who had requested information from them and our investigations into how these requests have been dealt with remain ongoing.

In regard to the ICO providing advice to the University of East Anglia I can add the following.

The ICO has a statutory duty to disseminate advice and guidance on the operation of FOIA and the EIR. I can confirm that we have previously provided advice to the University of East Anglia. However, as with all other public authorities the advice we provide is only of a general nature. The ICO provides high level, non-specific guidance on how an authority might consider approaching a request. This may involve directing an authority to published guidance or good practice notes. Where such decisions exist, it may also include referring an authority to relevant Decision Notices or the findings of the First-Tier Tribunal (Information Rights). In all circumstances, the ICO will make it clear that they cannot discuss the specifics of actual requests. The ICO would not, in any circumstances, provide advice that would encourage an authority to avoid compliance with FOIA or the EIR. Both the FOIA and the EIR assume a default position of disclosure in response to requests made to public authorities and this presumption is the default position adopted by the Commissioner in the consideration of complaints, and when responding to requests for advice. The presumption of disclosure underpins all of the Commissioner’s work in relation to FOIA and EIR and his officer’s would not provide advice that would encourage an authority to avoid compliance with the legislation.

If we can be of any further assistance please contact our Helpline on 0303 123 1113 quoting your case reference number. You may also find some useful information on our website at www.ico.gov.uk.

Yours sincerely,

Trevor Craig

FoI Case Officer

FoI Case Reception Unit

Information Commissioner’s Office

[1] Steve Had a Little List

[2] UEA 'gravely concerned' over data findings request

[3] Plagiarism? Conspiracies? Felonies? Breaking out the Wegman File

2 comments:

  1. Steve Bloom said...

    That last long paragraph is entirely evasive on the point of whether the ICO would give advice to assist with non-dsclosure if that's what the law calls for (which it does extensively). Don't you just love bureaucrats? Anyway, I expect Russell to dwell on this point at length. I hope the UEA FOI officers kept good records.  

  2. Marco said...

    I had the same reply today. Not a very substantive reply.  

 

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