Bishop Hill +++No Climategate FoI prosecutions+++
Jan 25, 2010 Climate: CRU FOI I've just come off the phone to the investigations office at the Information Commissioner's office. I had made a request for information to UEA that, while only peripherally related to Climategate, has now turned up some interesting new information.
My original request was from a couple of years ago, asking for any correspondence between the CRU's Mike Hulme and the BBC in relation to a body called the Cambridge Media and Environment Programme (see here for some background on this story). The original response from UEA was that all Prof Hulme's emails prior to 2005 had been lost, an admission that appears rather embarrassing in the light of CRU's suggestion that they had lost some of their original temperature data.
However, when the Climategate emails were released I noticed several email from Mike Hulme predating 2005, which appeared to contradict the earlier assertion that all such emails had been lost. Intrigued, I wrote to the Information Commissioner asking that this be investigated and today I had my response.
First off, I was told that while there appeared to be a problem, I needed to be clear that there would be no prosecutions under the terms of the Freedom of Information Act, regardless of the final outcome of the investigation. Although withholding or destroying information is a criminal offence under the terms of the Act, apparently no prosecutions can be brought for offences committed more than six months prior. As anyone who has made a UK FoI request knows, it can take six months to exhaust the internal review process before the ICO even becomes involved. The ICO can then take another six months before starting his investigation.
The upshot is that the FoI Act's section allowing criminal prosecutions is to all intents and purposes a dead letter and the ICO officer actually volunteered this conclusion himself - "the Act is flawed" was the way he put it. The ICO is apparently going to take this up with the Ministry of Justice, which is fine but will be of little help for those who are interested in seeing justice done.
It seems quite clear that civil servants are able to withhold and destroy information without any consequences and it's interesting to ponder how such a dramatic flaw can have found its way into the terms of the Act. Of course we in the UK are used to poorly drafted laws finding their way onto the statute books, but we might also consider the thought that Sir Humphrey might have knowingly inserted this crucial error, in order to ensure that when push came to shove he could keep things quiet without any concerns that he might find himself in hot water.
Conspiracy theory? Perhaps, but you have to admit, it's a possibility.
Reader Comments (40)
I wouldn't have thought that there's a shadow of a doubt that it was drafted that way intentionally.
Who wrote the State of the UK? Was it Eric Blair or was it Franz Kafka?
Sorry 'bout that.
So let me get this straight. I hide some info (such as destroying some emails).
I continue to keep quiet for 6 months.
I'm then home free ?
What a completely useless piece of nonsense legislation.
This reminds me of the Human Rights act. Lots of people (including me) liked the idea that the limits of official power over people would be recognised in law. And what do we get ? The rights of prisoners to sue us taxpayers for their prisons not being pleasant enough.*
And it hasn't stopped. Just what the equality bill bring in another load of unintended consequences that nobody wants.
*(not that I support mistreating prisoners but would deny them the right to sue over having to use a potty)
Well then, with no prosecutions, it looks like your climategate is more bull-at-a-gate than anything.
I have to say that seems very odd. That you can receive a FoI request, or fear one, delete the relevant material, then just stall.
It's difficult to delete stuff, it's usually under the control of an IT dept, and backed up etc, I would think especially at anywhere subject to the FoIA.
But I know that's not your point - have they not committed an offence, even, once they get past 6 months?
Just had a quick look at the FoI Act and can't find anything about a six month window for prosecution. Can anyone point to the relevant section?
According to Baroness Scotland, the Attorney General, there are 2000 government lawyers on her payroll. Perhaps it's little wonder that the laws end up being so badly drafted.
Richierich
As I understand it, it's something to do with being an administrative prosecution (or some words like that) - something like a parking ticket.
Relevant section, I would of thought, from the Freedom of Infornation Act.
.
77 Offence of altering etc. records with intent to prevent disclosure .(1)
Where— .
(a)
a request for information has been made to a public authority, and .
(b)
under section 1 of this Act or section 7 of the [1988 c. 29.] Data Protection Act 1998, the applicant would have been entitled (subject to payment of any fee) to communication of any information in accordance with that section, .
any person to whom this subsection applies is guilty of an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to the communication of which the applicant would have been entitled.
(2)
Subsection (1) applies to the public authority and to any person who is employed by, is an officer of, or is subject to the direction of, the public authority. .
(3)
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale. .
(4)
No proceedings for an offence under this section shall be instituted— .
(a)
in England or Wales, except by the Commissioner or by or with the consent of the Director of Public Prosecutions; .
(b)
in Northern Ireland, except by the Commissioner or by or with the consent of the Director of Public Prosecutions for Northern Ireland.
It seems to that Phil Jones is still guilty of a severe breach of ethical standards. He knew that he was acting contrary to the law. Even if he can escape prosecution, he clearly deserves to be fired.
So, Bishop, the 6 month limitation would not be in the Act, but be part of a general statute of limitations for this type of offence? I'll ask a barrister friend.
Is anyone in a position to take legal advice on this?
Information Commissioner's office says 6 months because act is flawed but there's no mention of 6 months in the act?
I think you need to press them for a reference to what part of the Act defines this 6 month limit.
Also consider submitting to the Select Committee that his just been set up to look into CRU. Even IF they cannot be prosecuted they apparently have not been conforming to what is required by law. That in one of the questions before the committee. See climateaudit for details.
Bishop
Thanks for the update.
Further clarification of the 6 months issue would indeed by useful as it's not mentioned in s77.
A correspondent reports as follows:
I've left a comment at theMagistrate's blog to see if anyone can clarify this. It would be interesting to see if it can be heard in a county court after the 6 month cutoff.
You should have asked them which part of the act there were referring to in their reply because for the life of me I cannot find anything that suggests there is a 6 month limit on when action can or cant be taken?
http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000036_en_1
Mailman
Remember that the politicians were all for the taxes they could collect from the Carbon Tax and some still think that they can.
But beyond that. all I can say is "Same old 'same old.'"
The Information Tribunal
If you disagree with the way the Information Commissioner responds to your appeal you may appeal against it. This will be handled by the Information Tribunal. This is strictly for use when you dispute the Information Commissioner´s response and not the public authority or any other party´s acts.
Section 127(1) of the Magistrates Courts Act 1980 I think is what is being referred to.
127 Limitation of time.
(1)Except as otherwise expressly provided by any enactment and subject to subsection (2) below, 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..
(2)Nothing in—.
(a)subsection (1) above; or.
(b)subject to subsection (4) below, any other enactment (however framed or worded) which, as regards any offence to which it applies, would but for this section impose a time-limit on the power of a magistrates’ court to try an information summarily or impose a limitation on the time for taking summary proceedings,.
shall apply in relation to any indictable offence.
(3)Without prejudice to the generality of paragraph (b) of subsection (2) above, that paragraph includes enactments which impose a time-limit that applies only in certain circumstances (for example, where the proceedings are not instituted by or with the consent of the Director of Public Prosecutions or some other specified authority)..
(4)Where, as regards any indictable offence, there is imposed by any enactment (however framed or worded, and whether falling within subsection (2) (b) above or not) a limitation on the time for taking proceedings on indictment for that offence no summary proceedings for that offence shall be taken after the latest time for taking proceedings on indictment.
Could there not be a case of raising a complaint with the Information Commissioner now as you have not received the information requested after multiple attempts and then force legal proceedings?
I'm not an expert on British law; however, I will say this:
The cause of your complaint (i.e. that you were entitled to communications that you did not receive under Section 1 of the FOIA) occurred in December 2009 when the Climategate e-mails were leaked. Thus, you now have 6 months to file your complaint. Unfortunately, only the "Information Commissioner" can initiate proceedings (on your behalf) for an offence of 77 FOIA. This means it is imperative that you follow the procedures in 50 FOIA in order to prod the Commissioner into action. My guess is that if the Commissioner fails to carry out his duties, you may be able to take legal action against him/her.
http://www.opsi.gov.uk/acts/acts2000/ukpga_20000036_en_6#pt4-l1g50
At the risk of 'piling in' I was just about to post a view that the 'offence' occured when you discovered the falsehood. .. i.e. the date when you were 'offended'...
So 'hear hear' to Legal Opinion's post, and I hope you act on the advice ...
There is an old, old saying, yer Grace -- "The law is a whore and a rich man's play thing." Do you have the money to pay the legal fees to chase ofter this?
Sadly, you probably do not unless there are solicitors out there willing to do it "Pro Bono" which would be nice of them.
Any volunteers?
Thanks Bishop.
I've got a couple FOIA pending at CRU and an appeal. It's good to know that they can say and do anything without fear of consequences.
Oh, one more thing...
Your objective here is quite simple; it is to force the Commissioner to issue an information notice ASAP. Within 20 days, CRU should either:
(1) admit it is guilty.
(2) come up with some explanation.
Once (2) occurs, you can sit back and wait. If they lie, and the lie comes out, then you have been "offended" anew (starting another 6 month clock) and it should be very easy to force a 77 FOIA action at that time.
Legal considerations apart - should this not also been drawn to the attention of some 'Big Beasts', like Lord Lawson and Lord Monckton?
It doesn't need to come from yourself - you can't check that none of your readers send links to this story.
[You can delete this post, if you want]
Just another example of a feel good law that accomplishes nothing.
Viv Evans
The Lords you mention are already 'in the loop'.
@ Martin - The Information Tribunal
The Information Tribunal was abolished today (see here). It has been replaced by General Regulatory Chamber (GRC), part of a unified tribunals service. But apparent good news is:
""For some information rights appeals, cases will be heard in the first instance in the Upper Tribunal," said Tribunals Service officer Mike Watson in a letter to the Service's users last year. "This will occur where it is considered that the appeal raises complex or unusual issues and the importance of the case would merit it being dealt with in the higher Tribunal."
So the process for bringing the CRU to book is:
(a) a compaint to the ICO
(b) ICO declines to take legal actionciting the 6 months issue
(c) complainant refers the decision to the GRC and requests that the matter is handled by the Upper Tribunal as the 6 month issue is policy issue
(d) depending on the outcome of the case and appeal agains the GCR's decision would go straight from the Upper Tribunal to the Court of Appeals.
So it looks like we need someone to lodge the complaint with the ICO, if one is not already in place and to raise some funds for legal advice when the matter goes to the Upper Tribunal.
Doesn't this bit of unimpressive legal news, if valid, put the Muir Russell and Science and Technology Committee inquiries right back into centre stage? I'm a new poster here (hello, your grace). Are there some latest thoughts on the latter inquiry since the helpful sketch of committee members two days ago?
Richard
I've been away over the weekend, so I've not really progressed much further on the inquiries front. I'll post something at CA tomorrow I think.
Man, I hope this does not set a precedence for other worldwide institutions like the Pentagon, CIA, EPA, NOAA, GISS, etc. etc. etc. etc. Otherwise us citizens are royally screwed.
Bishop,
I am no expert but am inclined to agree with Legal Opinion - the 'matter arose' with the CRU leak. You may have previously suspected shenangins but now you know.
Even if this interpretation is not correct we can surely be right by building a consensus and writing papers that reference Perry Mason and Rumpole of the Bailey. It seemed to work for the IPCC...
I think that there has been a *conspiracy* to flout FOI law. From my vague recollection, conspiracy carries unlimited prison sentence. It needs a lawyer to confirm this and the conditions under which conspiracy can be prosecuted. But I'm sure you don't escape a conspiracy presecution simply by having had 6 months elapse.
For this reason, Welsh agitators in the 1960's were prosecuted for conpspiracy to deface road signs, rather than the trivial offence of defacing road signs.
I'm not surprised there will be no prosecutions. It makes sense. If Phil Jones was nicked and charged the first thing he'd do would be to shit himself, then he'd start to spill his guts and name names. I'm guessing if that shit hit the fan it would land on an awful lot of people, not just in science but in the government, the BBC, the Met Office, here and abroad. Of course we can't rule out the possibility of Jones getting Kelly'd and being found at the bottom of his garden having committed suicide by shooting himself in the back of the head half a dozen times.
There is a offence of "misconduct in public office" which was used in connection with the Damian Green controversy earlier this year - see, for example, http://www.mattwardman.com/blog/2008/11/28/damain-green-arrested-what-is-misconduct-in-public-office/ which describes the elements of the offence. This does not have the same time limits as an FOI offence. It is also a more serious offence. (Charges were dropped in the Damian Green case).
The BBC is also covered by the FOIA, so if they still have the emails from the other end then as long as the commisioner agrees then they should release.
How about the Environmental Information Regulations?
Don't they have more teeth?
http://www.ico.gov.uk/what_we_cover/environmental_information_regulation.aspx
Evading the truth.
Thanks for pointing out my error, wow someone must have rushed this one through I wonder when it went before parliament because they were in recess for Christmas from the 18th Dec to 12th Jan. It seems very convenient timing for some and I would have thought there should have been some sort of transitional period, but what do I know.
Maybe this is too simplistic but has anyone considered simply resubmitting the original FOI request to the CRU since the leaked data seems to confirm that the correspondence that was supposed to be lost has miraculously turned up? Or even a new request to the BBC.
and i though we had had it bad over here , at least u blokes ? if i may use that word can bet on ne thing over there
Certainly there might be two differing attacks on the limitations period:
1. Couldn't one could argue that the limitations period is tolled while the perpetrator has constructive knowledge that they are in violation of the statute; or alternatively
2. Couldn't it be argued that the failure to respond each day is an ongoing and continuous violation of the statute. The continuous trigger theory is common in civil law....not so sure it would apply in a criminal prosecution.