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Climate data: Why ministers refused to change the law

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Martin Rosenbaum | 12:24 UK time, Thursday, 28 January 2010

The latest development in the saga of the climate change e-mails has put freedom of information (FOI) back on the front pages - and focused new attention on one of the FOI Act's problems, the issue of enforcement.

The Information Commissioner's Office (ICO) has decided that the University of East Anglia did not properly handle requests for material held by its Climatic Research Unit.

Under section 77 of the FOI Act, it is an offence to intentionally prevent the disclosure of information to which an FOI applicant is entitled.

But action has to be initiated within six months of the offence being committed. In this case the evidence in the UEA's e-mails has come to light too late for any prosecution to be considered.

This issue has been raised before. The Campaign for Freedom of Information had been pressing quietly for the law to be changed. And in July last year the Labour peer Lord Dubs proposed an amendment in the House of Lords to allow a prosecution within six months of sufficient evidence of the offence coming to the prosecutor's knowledge, rather than within six months of the offence being committed.

The junior minister Lord Bach rejected the amendment, on the grounds that "we have no evidence at present that the current six-month time limit presents a systemic problem". But he added that if the government was given evidence that the limit was causing systemic difficulties, then it would look for ways to address the matter. The ICO is now collecting examples of such cases to press for a change in the law.

This concern is not limited to the Freedom of Information Act. The six-month limit is laid down in the Magistrates Courts Act 1980 and applies to a wide range of offences. Lord Dubs argued that legislation had already needed amendment in the fields of animal welfare, fair trading and building regulations.

The six-month restriction is just one aspect of the problems encountered by the ICO in the enforcement of section 77, which has sometimes been colloquially known as "the shredding offence".

The former information commissioner Richard Thomas told me:

"Section 77 is a very difficult section to use. You've got to prove intent, which is difficult, and you've got the six-months limit."

There are other cases where the ICO has investigated it and concluded that a prosecution would not be possible. In this example involving the Police Service of Northern Ireland (PSNI), the commissioner said he was "not persuaded that the PSNI acted in good faith towards the complainant", but concluded that there was insufficient evidence to be confident of securing a conviction.

These latest events will strengthen the views of those who think the key problem with FOI is the difficulty faced by the information commissioner in enforcing the law on reluctant public authorities.

UPDATE, 15:53: The University of East Anglia has now issued a statement. Its Vice Chancellor Edward Acton said:

"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."

The university is now awaiting the outcome of a review of the issues in this case being conducted by Sir Muir Russell.


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