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« North on 28gate | Main | Biased BBC on Joe Smith »
Monday
Dec032012

Changes to FOI enforcement

The government has published its response to the post-legislative review of the Freedom of Information Act. A number of the recommendations of the Justice Committee have been accepted, but there is a sense of the bureaucracy trying to move as little as possible. For example on the issue of offences under the FOI Act being all but non-prosecutable because of the time delays involved, the government says this:

The Government accepts the conclusion of the Select Committee that the current provisions under section 77 are insufficient to allow the Information Commissioner’s Office sufficient time to bring a prosecution where appropriate. However, the Government does not consider it necessary that cases under section 77 are heard by the Crown Court, nor that the existing penalties are insufficient in being an effective deterrent to misconduct. To address the problem, the Government is instead minded to extend the time available to the ICO to bring a prosecution to six months from the point at which it becomes aware of the commission of an offence rather than six months from the point at which such an offence occurs. This change will address the core problem of insufficient time available to bring a prosecution without an excessive response of making the offence triable either way [i.e. in the Magistrates' courts or the Crown Court].

The whole document is quite interesting. For example, it looks as if we will have a new exemption for pre-publication research. This is one to watch closely - would repeated claims of "I'm going to use it again" be possible?

Of equal concern is the possible introduction of fees at the Information Tribunal. This last one is interesting, since it was not actually an idea that was considered by the Justice Committee. Apparently the government (or their civil servants) have introduced the idea on their own initiative.

And it is unequivocally a bad idea. It would allow the bureaucracy to use the full resources of the state to crush FOI requesters - they would simply have to appeal their way as far as the Tribunal at which point the financial burden would put most requesters off. More work to do.

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Reader Comments (8)

Exemption for pre-publication research is clearly an interesting and sensible idea. I don't want to provide my academic competitors with access to my research before I have been able to publish. However, it is capable of the of appalling abuse without appropriate caveats.

In fact FoI for research data should not be necessary if scientists followed the rules by publishing their data alongside their publications as is required by many journals but, as we have seen, rarely enforced in practice.

Dec 3, 2012 at 12:17 PM | Unregistered CommenterArthur Dent

Ha! fees?

Yes, well... me again - We've been asked for £37,500 for less information than we paid £1000 for 2 years ago.

The tactic of cynically ratcheting up the fee to cover up seems to work for the Environment Agency when protecting their incompetence and appalling behaviour.

Don't suppose there's anybody out there who's got £37K to rinse on annoying the EA or can suggest some method to move the process along without coughing up?

Dec 3, 2012 at 1:15 PM | Registered Commentertomo

From the quote:

To address the problem, the Government is instead minded to extend the time available to the ICO to bring a prosecution to six months from the point at which it becomes aware of the commission of an offence rather than six months from the point at which such an offence occurs.

How did the FOI Act come to be interpreted in the latter fashion? It makes no sense.

Section 77 mentions only summary convictions so I will assume that it can only be a summary offence.

Section 127 of the Magistrates' Courts Act 1980 says:

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.

The offence may have been committed outside the time limit but the complaint only arose when the first lot of emails showed evidence of if.

Dec 3, 2012 at 2:13 PM | Unregistered CommenterGareth

Gareth, I don't think it goes by date of discovery but when the offence was committed or the matter of complaint arose - I think those two definitions are broadly synonymous.

Dec 3, 2012 at 4:08 PM | Unregistered CommenterMike Fowle

If this rule had been in place I would not have been able to challenge UEA's lies in Court.
The risk of paying costs would be just too great.
Particularly since UEA chose to work through a national firm of solicitors and appoint a Silk to make their (dismally ineffective) case in Court.

Dec 3, 2012 at 11:18 PM | Unregistered CommenterDon Keiller

For example, it looks as if we will have a new exemption for pre-publication research. This is one to watch closely - would repeated claims of "I'm going to use it again" be possible?

Spot on , you can see that being the standard approach from 'the Team ' and CRU , the key being 'its going to be ' which a time period has long has you like .

Dec 3, 2012 at 11:53 PM | Unregistered CommenterKnR

Why does there need to be a cut-off at all, six months or otherwise ?

Dec 7, 2012 at 7:35 AM | Unregistered CommenterTomcat

Tomcat,

Quite agree. Any sort of time limit tends to hamper justice although there ought to be some discretion over very old offences, especially those where the social climate and customs have changed.

Dec 7, 2012 at 9:32 AM | Unregistered CommenterMike Fowle

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