Bishop Hill ICO believes FoI offences committed at CRU
Jan 27, 2010 Climate: CRU FOI Jonathan Leake at the Sunday Times has discovered that the Information Commissioner believes that offences were committed under the Freedom of Information Act at CRU. As readers here know, the ICO is not able to take any action because there is apparently a six month time-bar on summary offences such as these.
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.
Intruigingly, there does seem to be a hint of a possibility of action under the data protection act.
We will also be studying the investigation reports (by Lord Russell [sic] and Norfolk Police), and we will then consider what regulatory action, if any, should then be taken under the Data Protection Act.
(Source-press release, so no link).
Reader Comments (18)
Take comfort that even if the case cannot be prosecuted on a time technicality it will be a significant factor in the independent review.
I expect that Sir Muir Russell KCB FRSE will feel obliged to apply a high standard and there may be more than one head to roll.
http://wattsupwiththat.com/2010/01/27/cru-inquiry-seeks-changes-in-uk-law-citing-failure-of-crus-foia-officer/
Suggest a look at this for an update
Definitely take comfort. Heads will have to roll, the Russell and the Commons investigations will see to that now.
There needs to be consequences for this. Throw out accountability and we get into messes like this one.
Perhaps the National Domestic Extremism Team could be drafted in to help. It would be nice if they harried bureaucrats instead of whistle-blowers for a change.
That sounds like a Freedom of Information Act with no teeth. Perhaps Mr Holland should sue the people responsible since the statute of limitations in civil law starts with the discovery and not with the date of the transgression.
The ICO appears to be ignorant of the law, to wit:
"As the s.2 offence is summary only, it is subject to the limitation of time imposed by s.127 of the Magistrates' Courts Act 1980. This requires informations or complaints to be heard within 6 months from the time when the offence was committed, or the mater of complaint arose. Arguably, as the offence under s.2 is a course of conduct, the offence is completed with the final act complained of, and the six months' limitation should run from this date. Prosecutors should be ready to argue this point, as it is anticipated that some magistrates may prefer a stricter interpretation, that all of the acts complained of should be within 6 months of charge."
http://cps.gov.uk/legal/h_to_k/harrasment/
As above, you are dealing with a course of conduct. Just keep complaining and documenting your complaints. You didn't even know an offense was committed until Dec. 2009. It should not matter that your original FOIA request was years ago.
Sorry, but this really upsets me! Under the ICO's interpretation of s.127 of the Magistrates' Courts Act 1980, one could compose a harassing letter to someone, encrypt it, and then e-mail it. Six months and a day later, the harasser could e-mail a decryption key to the victim. Once the victim decrypts the message and reads the harassing content he or she would, according to the ICO, have no legal recourse against the harasser! This is totally ridiculous.
@Legal Opinion
I am just curious as to the nature of your legal training. You seem to have a trained legal mind judging by your skill at parsing legalise.
I think the important point is:
"as it is anticipated that some magistrates may prefer a stricter interpretation, that all of the acts complained of should be within 6 months of charge." (emphasis added.)
Clearly, that is what the ICO is saying.
My guess if there is enough of a howl, and now that the Sunday Times is snapping on this story, you will find some judge "correcting" the ICO, who obviously are looking for a way out of the mess they are in. They have not been guarding the public's rights and they will
Hell, isn't "unauthorised access to computer material" a summary offence in the UK? If so, the CRU hacker should've just gathered up the documents, waited six months and one day, and then released them.
Can these offences be tried in a higher court?
It would appear that the Information Commissioner is now part of the Climategate Story
http://noconsensus.wordpress.com/2010/01/27/uea-was-advised-by-ico-to-ignore-foi/#more-7740
http://junkscience.com/FOIA/mail/1219239172.txt
Did the the Information Commissioner offer advice on how to block FOI requests sent to UEA?
@Don Pablo de la Sierra
I'm not a lawyer by any means, I just think it is very important to understand the law. I've written my fair share of contracts, most of which were reviewed by excellent lawyers and found to be relatively "ironclad" (although, thankfully, none of them have been tested by litigation). I've also had my fair share of agruments with bureaucrats. I think the general public feels that bureaucrats are omniscient; however, I find that they usual just know what they know and sometimes need to be prodded to actually read and think about the laws that they are laboring under.
@Legal Opinion
We do not know that there was any such "unauthorised access to computer material". There may have been a leak by someone who had authorized access to computer material.
True, a judge may take the position that since the leaker leaked the material, he accessed the material in an unauthorized manner. But that will only happen if it is the leaker who is to be pilloried and not the leakee (excuse my legalise). That is a political decision -- and that may very well come down is the leaker gets the Victoria Cross for saving the country. We don't know. Me, I am going to the store, buy a couple boxes of popcorn, come home and pop it so I have some munchies while this drama unfolds.
This "ain't over til the fat woman sings," Don Cook once noted, and she isn't even on the stage yet.
@Legal Opinion
We share a background in contract law. I, too, worked for a company doing contract administration. I know exactly where you are coming from. And we share the same attitude about bureaucrats, who I took great delight in chewing up.
@Paul
Do we have more substantial information backing this? Very serious if true.
@Bishop Hill
"Can these offences be tried in a higher court?"
Yes, those guilty of offences under FOI will have to face their creator some day. :-)
Updates on this story at:
http://news.bbc.co.uk/1/hi/uk/8484385.stm
and
http://www.timesonline.co.uk/tol/news/environment/article7004936.ece
Hi, I'm a very regular lurker here and have been a quiet sceptic for years - especially after watching Gore's performance in 'that film'.
I've a question. If the FOIA related complaints being over six months old has taken the pressure off CRU, have they now released all relevant data? Isn't it just a question of putting in a fresh complaint?
I was a scientist many years ago. I still have all of my raw data in a store room somewhere. I'm appalled that there is even a need for an FOIA request before they make it public.
Just got your book - looking forward to it.
Keep up the good work.
A Lurker