UK FOI Law Explained
Posted by Jeff Condon on February 1, 2010
It seems that we have a resolution on criminal breaking of FOI law as it applies to the University of East Anglia. Lucia has an excellent thread on the subject here, which I recommend. In it she again brought up the question of whether it was correct to say that the statute of limitations had truly run out or whether the British IOC was simply using it as a matter of convenience as they are implicated to some degree themselves by the climategate emails.
After some searching I found the laws in question and left this post at Lucia’s and copied it here.
I found the law:
(1) … 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 OR is key, it specifically can be read by removing the first option before the or as:
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 matter of complaint arose
Windandsea then mentioned that the 127 law was not linked to the section 77 law very easily. P Gosselin found the answer to that:
P Gosselin (Comment#31583) January 31st, 2010 at 2:07 pmWindansea,
“Section 77 of the Act makes it an offence for any person to deliberately destroy, alter or conceal a record after it has been requested with the intention of preventing its disclosure. ”
“The offence is triable only in the magistrate’s court. However, under section 127(1) of the Magistrates Court Act 1980, proceedings for all such offences must be brought within 6 months of the offence occurring.”
Clearly she is citing 127, and not 77 as you claim.
Seems to me 77 makes it an offence, and 127 says when and who can prosecute.
Well that’s a good find so now we’ve tied the laws together, but how are they practiced? A UK lawyer, possibly from a note left by Windandsea at Bishop Hills blog wrote in to answer. I have to mention that one of the best things about a technical blog is when you can write a post and get quality people to answer difficult questions like this. Who is going to actually look up a UK lawyer in the yellow pages and pay them to answer such a simple matter?
Anyway a Lawyer self named Anguspangus writes this in response to Raven:
Raven:OK, you asked for it! The more technical explanation is this. Section 127 says the court shall not “try an Information or hear a complaint” unless proceedings are started within 6 months from when the offence was committed or the matter of complaint arose. Note the use of the word “complaint” throughout s.127. Now, in the Magistartes’ Court, an Information is not information and a Complaint is not a complaint. What I mean by this is that they are technical terms with specific, legal meanings. A Magistrates’ Court deals mainly with criminal cases, but also has some civil jurisdiction. Criminal cases are started by laying an Information. Civil cases by issuing a Complaint. So in s.127, the words “or the matter of complaint arose”, in effect mean exactly the same as the date of the offence, except it is referring to civil cases rather than criminal. Because it’s talking about civil cases, referring to the date of offence would not be apt, hence “or the matter of complaint arose.”
So the point is that “Complaint” has specific meaning with respect to a civil case and “Information” has specific meaning in the context of a criminal case. Once again, legal definitions of words are different from the understood meaning. I’ve got lot’s of experience with US lawyers, this is common in law in the US so no surprise for the UK. What it means is that any possibility for FOI prosecution of any kind is dead! Now that this is understood, there is simply no reason for anyone to comply with FOI in the UK and I wonder now why the UEA would have an FOI liason anyway..
So, since we’ve cleared that up, is it possible to charge anyone with a crime here?
Angus has that answer for us too:
AngusPangus (Comment#31598) January 31st, 2010 at 4:51 pmHi guys,
I’m a UK environmental lawyer; 9 years as a prosecutor and longer on the other side of the fence. I’m familiar with FOI and the Environmental Information Regulations.
Some statutes make explicit provision for time limits to be measured from the discovery of facts by the regulators. There is no such provision in this case. The “matter of comlpaint” under s.77 of FOI would be, for example, the act of erasing, destroying or concealing records with the intention of preventing disclosure. In the circumstances being discussed, this is more than 6 months ago, and therefore no prosecution under s.77 is possible. Period.
As has been pointed out, however, if the facts supported it, a prosecution for conspiring with others to breach s.77 would be possible, since there is no time limit for conspiracies.
And I agree, six months is an impossibly short time period for offences like this to be discovered and prosecuted. There is a clear case for these offences to be upgraded to “either way” offences, to which no time limit would apply.
I’ve got no idea why the actions between CRU and IOC wouldn’t rise to the level of conspiracy to block FOI, as the IOC basically admitted there was a crime committed and the emails point out the collusion between UEA FOI officers and Jones et team to block FOI, but again I don’t know what constitutes a British government defined conspiracy, beyond a quick reading of some of the laws.
What I do know is that since IOC got entangled in the whole thing, by advising Jones that he didn’t need to reply to anything regarding the IPCC, it’s unlikely that they would want to dig too deeply into the matter. Their interpretation seems to be correct from my untrained reading of FOI law, there is a whole section on not needing to comply with respect to international information. The question then boils down to what was defined as IPCC business vs UEA business as Jones simply hid everything behind the IPCC and international agreements – which nobody can produce.
In retrospect, after many hours of pouring through emails, Jones and team are unusually sensitive about revealing computer code and data. It’s crazy that they would go to such extreme lengths to not be inspected. I did very little work with the data that has been released this weekend, but will be getting back to it.