Loophole in UK FOIA law will apparently allow CRU to avoid prosecution

http://888redlight.files.wordpress.com/2009/10/screen-shot-2009-10-27-at-12-12-16-am.png?w=252&h=300It appears that poorly crafted law is going to mean no prosecutions for any of the CRU collaborators in the now famous leaked emails and documents. This from The Bishop Hill blog:

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.

But there’s and interesting theory being proposed.

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.

I’m sure the collective of CRU is breathing a sigh of relief knowing this, however there may be other unforeseen repercussions coming from the investigation, and UEA may have other rules for professional conduct that may apply.

Stay tuned.

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109 thoughts on “Loophole in UK FOIA law will apparently allow CRU to avoid prosecution

  1. I would lay the entire national debt that the FOIA was crafted with just such an intention.

    There must therefore be a prima faciae case for suing all MPs, Lords and legal support staff who wasted taxpayers’ money designing such a stupid bill.

    Any idiot can see that stalling for 6 months is a normal tactic by any dodgy operator.

    That’s all they got to do to be immune?

    [snip]!!!!!!

  2. The other information that Bishop Hill reveals is:

    “I mentioned two snippets of information in the last post and no doubt some of you are wondering what the other one is.

    The ICO officer volunteered that my complaint might not eventually be upheld because it was possible that UEA was in fact unaware of the existence of the archive of data and emails that eventually formed the Climategate hack/leak. He said that the current understanding in the ICO’s office was that the archive was not an official data repository, but was set up by an individual within CRU for their own use.

    This is important because, if true, it strengthens the suggestion that the data was not hacked but leaked. If the archive was on a hard drive on someone’s PC then it is highly unlikely that a hacker could have found it, and it seems to me still unlikely that it would have been found on a shared drive either.

    It’s not definitive, but it does fit in well with earlier evidence of an inside job, such as the cleansing of file creation dates.”

  3. Well, it appears that if you want answers the best response is to forward the request and place in that request a statement you will file charges at 5 months, 29 days after the request.

  4. Did anyone believe anyone would be prosecuted in this matter? If not this loophole then surely any number of other loopholes would have been found. Bureaucrats do not punish bureaucrats. Even if they are forced to resign, they will be taken care of. Period.

  5. NuLabour who came up with this act are renowned for coming up with record new laws most of which are badly written, the ban on Fox hunting has seen a rise in the number of Foxhunts for instance, they are only suppossed to drag hunt a false scent but if this crosses a real foxes scent the Fox hounds run after the Fox. Once on the scent you can’t stop them so the Fox gets hunted.

  6. This is outragous. If this is accurate the UK has NO FOIA.

    It seems hard to believe that a law is put in place with a “statute of limitations” of just 6 months.

    So six months prior to what? The date of complaint to the commissioner?

    If that’s the case anyone filing a FIOA request should automatically file a complaint 3 months later and withdraw it as necessary if the data is provided.

    Someone should check the act.

  7. “The email have been deleted”

    “But there are emails after that date in the public domain”

    “Ohhhh, you mean thooooose emails. You can’t have those, because they’ll be retrospectively, proactively deleted in three months time, now. So they don’t exist”

  8. Nothing to stop a private action, I would have thought, if the findings go against UEA-CRU. This would be a good way to get the limitations of the FOIA exposed to a wider audience, as well as publicising the mistakes the CRU made.

    Perhaps worth letting Messrs Monckton and Booker have this info, as I’m sure between them they would know the best way forward?

  9. The FOI Act does not cover only the University of East Anglia and institutions dealing with climate related sciences. Any suggestion that the so-called “loop hole” was inserted deliberately to “cover” only the above mentioned insinuation is a bit of a conspiracy theory, to say the very least. Selectively using the term “loop hole” is a bit of a red herring given that it is simply a “rule” that would have been public knowledge throughout, as anyone who uses the services of an accountant should surely know.

  10. Have there actually been any prosecutions under the UK FOI act? From your report it seems as if it has a pretty fundamental flaw (since almost anybody is going to take longer than 6 months to go through their various internal review processes)

    If there HAS been a successful prosecution it would be instructive to see how it was achieved. If there has NEVER been one, then I suspect the UK is in practical breach of a European Directive – I seem to recall that FOI is a European requirement. European Directive 2003/4/EC on public access to environmental information might be one of the things to look at….

  11. If the emails were sent to the BBC then they are more likely to have a copy, as long as the orginal source agrees they they should release. As long as the FOI commissioner would have released the emails if they still existed then that is the source agreeing, Journalists protect their sources but can hardly object if the source agrees.

  12. How does the “conspiring to delete data” fit within the FOIA? Or does it fall under criminal conspiracy?

  13. Hard to imagine lawmakers being clever enough to throw this catch-22 into the books on purpose. Not hard to imagine them Not correcting it.

    Re the illustration – loopholes have nothing to do with strings or ropes forming a loop. They are the slots in castle walls from which the archers shoot the bad guys besieging the castle.

    Regards,

    Mike
    in my humble grammar n*zi guise

  14. Sigh, now I’m wondering if the U.S. has a parallel reading of the law. Here, there are of course, other legal means to get at these weasels, but I’m too ignorant of British law to know if they can be prosecuted for their malfeasance. Many of the “scientists” here have testified before our legislatures. Indeed, even big Al did on several occasions. The only problem here would be to PROVE they knew they were lying. Does the U.K. have such a recourse for criminal prosecution or is it(the intentionally lying to the world) going to relegated to civil courts?

  15. After some thought about those at the CRU not being prosecuted:

    …if the political backlash is strong enough they will be the first to go. We’ve spent billions on this, and the political class has much to answer for. Too much money has been spent on this boondoggle to have it just be swept under the rug; too many predictions have been made.

    And the political class as a majority will soon have to provide excuses and they can’t just say, ‘we believed them’, and let it go at that.

  16. 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.

    First rule, don’t believe it.

  17. Re: Tarby (07:06:40) :

    Any suggestion that the so-called “loop hole” was inserted deliberately to “cover” only the above mentioned insinuation is a bit of a conspiracy theory, to say the very least.

    I dont see any such suggestion in either the article or the title of the post.

    In fact the article states quite clearly that civil servants are able to withhold and destroy information without consequence.

  18. http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000036_en_1

    This is the FOI act and for the life of me I cannot find any limitations in here that says after 6 months the “action” cant be enforced?

    From personal experience Im aware that there is a 6 year limitation on action for certain things and would have thought that FOI would have been covered by that if there was any real limitation on when you can take action etc?

    Mailman

  19. While six months seems short, statute of limitations are commonplace. The thing to do is re-request the data, if they continue to withold the data, bring it up to the commissioner again.

  20. In other news, the sun appears to be dead.

    At least, that’s the impression I get from looking at the current sunspot image :)

  21. I have another perspective on this, and I don’t exactly subscribe to the view that prosecution is the desired outcome. It seems that there is to be a full enquiry by the UK government into the whole Climategate affair, and from reading James Dellingpoles UK Telegraph blog, it seems that the remit is to be pretty damn wide ! If those in high places in government are starting to sense that this whole global warming saga is turning out after all to be a whole pile of nonsense, it would give this government leverage to opt out of expensive committments from Copenhagen et al, and to put an end to this whole farago. The results of the enquiry will be well after the forthcoming election, thought now to be about May 6th, so no risk of upsetting green voters until well after the election is over, whichever party gains power, and plenty of time before the next election to give an allmighty political spin on what would be the biggest U-Turn ever !
    I’m waiting patiently !!

  22. Looks like the UK FOI law has only been in effect since 2005.

    I don’t have the resources to research UK legal archives, but I would be willing to bet a substantial sum of money that there has *never* been a single successful prosecution under this act.

    The 6 month limitations period guarantees it. I don’t think it was passed *just* because of the climate change issue; no, a bill with a suicide clause in it (one like this which makes the total bill ineffective from the start) is passed because the entire idea is an inside joke from the start, something passed to make clueless voters think something is being done when in fact the exact opposite has just happened.

    And if you don’t think this happens every day on both sides of the Atlantic – you just haven’t read much legislation very closely.

  23. They can still clean up the nest by firing the people who caused the problem.

    Otherwise what will be the message for the rest of us when such deliberate acts of stonewalling and data manipulation,that has been ongoing as a group effort, lead to in the future?

    It all stinks no matter what the authorities thinks.

  24. The whole reason for the UK government passing the freedom of information bill was to use it as a political football to beat the tories with in the run-up to an election.

    They originally passed it so that they could selectively release information that could be embarrassing to the tories without having to wait for the pesky 30 year rule to kick in.

    They had so many safeguards built in to prevent any of their own information from leaking out, that it should have been called the freedom to withhold information act.

    However, labour being as incompetent as labour is, they failed to foresee how it could blow up in all their faces with the expenses scandals. To be fair, if it wasn’t for the original expenses leaker, they would have got away with far more than they have.

  25. The loophole is in Section 127(1) of the Magistrates Courts Act 1980, not the FOIA itself. An attempt to get round it for FOIA requests was made in the Houlse of Lords, but abandoned because it was not perceived as a problem, nobody, including the ICO, had complained.

  26. One body that might be knowledgeable on the subject of the FOIA and its loopholes is the civil liberties pressure group “Liberty”. If there is a hole in the act a mile wide, they might be interested in lobbying to get it changed.

  27. Funny thing, eh? Civil servants exposed to FOI act make up rules to benefit themselves. Who’d ever have thought it?

    Especially when one considers the UK criminal law has no time limit whatsoever.

    One law for us….

  28. RE: TerryS (07:41:20) :

    “Re: Tarby (07:06:40) :

    Any suggestion that the so-called “loop hole” was inserted deliberately to “cover” only the above mentioned insinuation is a bit of a conspiracy theory, to say the very least.

    I dont see any such suggestion in either the article or the title of the post.

    In fact the article states quite clearly that civil servants are able to withhold and destroy information without consequence.”
    ————————————————————-

    From the article itself:

    “…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.”

  29. I don’t see 6 months in the act regarding a statute of limitations.

    http://www.opsi.gov.uk/acts/acts2000/ukpga_20000036_en_2#pt1-pb1-l1g10

    But I do find this in the section:

    Access to information held by public authorities

    10 Time for compliance with request

    (1) Subject to subsections (2) and (3), a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following the date of receipt.

    (4) The Secretary of State may by regulations provide that subsections (1) and (2) are to have effect as if any reference to the twentieth working day following the date of receipt were a reference to such other day, not later than the sixtieth working day following the date of receipt, as may be specified in, or determined in accordance with, the regulations.

    It is the only reference I can find to the sixtieth day. I cannot for the life of me work out what the hell (4) means.

    Maybe someone with a better grasp of English can help out?

  30. The first principle of any nation’s Civil Service is CYA. Years ago, a law lecturer made it clear to me that ‘justice is always available everywhere on the same basis as dinner at The Ritz’. Some deep pockets are going to be needed before natural justice in this matter will be seen to done.

  31. I guess all the UK people need to adress their MP’s in order to fix this ridiculous loophole. Unfortunately I’m not a UK cizitizin so I urge all of you who are UK citizins to adress this issue.

  32. @Mike Nicholson (08:00:06) :

    ” It seems that there is to be a full enquiry by the UK government into the whole Climategate affair, and from reading James Dellingpoles UK Telegraph blog, it seems that the remit is to be pretty damn wide !”

    Be VERY cautious of believing a journalist on anything, even a friendly one.

    And anyone who is making a submission to this inquiry should take great care to ensure that their submission is well within the remit. Read it and check. Otherwise the submission will be flung out at the first sift by civil servants and will never get considered at all….

  33. The answer is provided in a subsequent comment posted on Hill’s blog. The 6 month limitation being a limitation for a summary offense (s127ff) (sort of like a misdemeanor in the US), irrespective of the qualifying statute, i.e. not a problem with the UK FOIA except on its reliance for summary conviction.

  34. Contact your MP all you like, there’s not a cat in hell’s chance that an incoming administration will fix this obvious faux pas. Those who have been in power for a few years start to appreciate its utility and those fresh on the benches will have more important things to do unwinding the 12 years of Leftist Twaddle on the Statute Books. I can see it as a private member’s bill, but they almost never succeed without Government support.

    There may be some redress available in the European Courts however (which now trumps our national laws in so many different areas), but I very much doubt they have jurisdiction here.

  35. Here in the States, Martha Stewart went to jail for nothing more than lying to a federal agent in an investigation.

  36. While it can take well over 6 months got ICO to investigate complaints under DPA or FoI requests, there is nothing to stop the applicant making an application to the courts to enforce your request.

    This can be done through the small claims system. I have done this several times and it only takes a few weeks.

    It can be done online and you get your court fee back. Claim this as damages.

  37. Mike McMillan (07:26:30)

    You are correct of course. I assumed it was a subtle visual pun and allusion to a hangman’s noose.

    Well we can dream can’t we?

  38. There is always a back door. They put Al Capone away on tax charges. With a body of law as thick as the western nations have there is something out there that can be used.

    Even if there is a 6 months limit, the question is how is it interpreted, does each status update query restart the clock? Does the clock not start until a formal response is received, or from the date the original request is issued?

    If it is from the original date of issue as mentioned above a declaration in the original request that failure to respond in some time certain will be taken as prima fascia evidence of non-responsiveness, or repeated re-submission every 5 months 20 days, to keep the clock ticking.

    As mentioned above many laws have “escape clauses” that can be used to evade them by folks who know the ropes. By the same token most have a means through creative usage to by-pass such clauses or make them more painful than simply responding to the FOI.

    For example file for a FOI regarding some issue X, then at 5 months 20 days issue a FOI regarding the failure to respond to FOI #1, rinse repeat and pound them into submission by forcing them to jump through the hoops of cascading FOI requests each referring to the previous request, keeping them all alive.

    As the old saying goes we get the government we deserve (or are willing to tolerate).

    Larry

  39. 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.

    This may be true but when was the FOI request made? If Phil Jones or the institution knew a FOI request had been made and colluded to thwart it’s enactment then a criminal conspiracy may be found by a court.

    Remember we are not talking about the station data but Phil Jones urging others to delete mail that may be the subject of a FOI request.

  40. Re: Tarby (08:15:41) :

    From the article itself:

    “…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.”

    What is your point? Your original post implied that the article was saying the loophole only applied to the UEA. I pointed out the article does no such thing. Perhaps you are not aware that “Sir Humphrey” does not refer to a member of the UEA but instead to a character in an old TV series, called “Yes minister”, who was a senior civil servant.

  41. Typo Alert!
    Para #6: “But there’s and…” should read “But there’s an …”
    I’m not normally a pedant but I know the AGM crowd look for anything to discredit you.
    You are really rockin’ over the last few months. Great work and I wish more power to your pen.
    Thanks also to Mr Watts for all the hard work that this site must demand.

  42. I intended to mention the moderation team as well but my finger was too fast.
    So, thank you, guys, as well.

  43. Further to MartinGAtkins post. It is a criminal offence to destroy documents for which a FOI request has already been made. It is the responsibility of the person(s) to whom the request has been made to safeguard those documents.

    If you have any evidence that this was not done and the documents were destroyed after your request you should make a further complaint to the Information Commissioner. Even if the Commissioner’s office is correct in their assertion that no prosecutions can be taken more than six months after the event, you can bring a complaint against the Commissioner at the Information Tribunal for not ensuring that the documents were preserved.

    The Tribunal has a good track record of upholding cases brought against the Commissioner when there is a genuine case to answer. (for example see Berend v London Borough of Richmond upon Thames)

  44. There’s no loophole that will permit them to escape prosecution in the court of public opinion. The only way they will escape this is by complacency on the part of those wishing them exposed.

    As I read this the possibility struck me that a central website could be constructed with the specific purpose of documenting the technical sins and civil crimes of these folks, and advocating in government and media to have these exposed publicly. The courts may or may not come up with punitive measures, but public vilification and discreditation will do more than some administrative fines.

    In any case there is a jurisdictional problem in bringing these folks to heel — their criminal syndicate spans the globe — North America, Europe and Australia at least. So there is no one court of law in which to try them, and it’s easy enough for them to point the finger of blame to others outside the courts’ jurisdiction. But they cannot escape the jurisdiction of the court of public opinion.

  45. Tarby (08:15:41) :

    RE: TerryS (07:41:20) :

    “Re: Tarby (07:06:40) :

    Any suggestion that the so-called “loop hole” was inserted deliberately to “cover” only the above mentioned insinuation is a bit of a conspiracy theory, to say the very least.

    I dont see any such suggestion in either the article or the title of the post.

    In fact the article states quite clearly that civil servants are able to withhold and destroy information without consequence.”
    ————————————————————-

    From the article itself:

    “…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.”

    Obviously Tarby either doesn’t know what the Sir Humphrey reference is from or is deliberately trying to through a red herring out their. For Tarby the Troll’s edification here are some points you should consider:

    Point 1: Know what the reference is to. Sir Humphrey is a fictional British character from a television series.

    Sir Humphrey Appleby, GCB, KBE, MVO, MA (Oxon), is a character in the British television series Yes, Minister and Yes, Prime Minister.
    This fictional character was known for:

    Sir Humphrey is the master of obfuscation and manipulation, often making long-winded statements such as, “In view of the somewhat nebulous and inexplicit nature of your remit and the arguably marginal and peripheral nature of your influence within the central deliberations and decisions within the political process that there could be a case for re-structuring their action priorities in such a way as to eliminate your liquidation from their immediate agenda.” He is committed to maintaining the status quo for the country in general and for the Civil Service in particular, and will stop at nothing to do so — whether that means baffling his opponents with technical jargon, strategically appointing allies to supposedly impartial boards, or setting up an interdepartmental committee to smother his Minister’s proposals in red tape.

    Real-life references
    Sir Humphrey has become a stereotype associated with civil servants, and the phrase “Bowler-hatted Sir Humphreys” is sometimes used when describing their image. Satirical and investigative magazine Private Eye often refers to Sir Humphrey with the definite article ‘the’ to indicate someone in the civil service the magazine considers of similar character, e.g. “[name] is the present Sir Humphrey at the Department for Rural Affairs”.

    http://en.wikipedia.org/wiki/Humphrey_Appleby

    So when A brit makes a Sir Humphrey reference it is dealing with the UK civil service and what the UK FOI law has about prosecution would fit the Sir Humphrey Mindset.

    Point 2: Even if you don’t get the reference completely, nowhere does the author state that the FOI law was written that way just for the CRU, UEA or Climate information exclusively. It is written that it’s convienent that a law that is suppose to make it harder for Civil Servants in all areas of the UK government to mislead the public has no teeth to punish said Civil Servants when they don’t comply with the law. It doesn’t matter if its Climate or the expanse account for some clod in the census beaureu that puts the afternoon hotel room romp with his mistress on it. Neither will get punished for circumventing the FOI law.

  46. I would hope that even if these guys escape prosecution under the FOIA, that they may be still found to have a legal case to answer for fraud since effectively it seems that is what they were engaged in and for financial benefit i.e. grants.
    Al Capone went to jail not for racketeering, which was difficult to prove, but Income Tax Evasion.
    I don’t care much what these guys go down for but If true, what they did ought to be considered criminal and they ought to go down for it.
    I would hope that wit the current furore over the IPCC’s abuses and everything else that has been emerging from the persistent enquiries, like the sludge from a blocked drain, the UEA and others may be considering it time not to whitewash but deliver u the sacrificial goats.

  47. boballab: “It doesn’t matter if its Climate or the expanse account for some clod in the census beaureu that puts the afternoon hotel room romp with his mistress on it.”

    Hey bob, I appreciated the playful “expanse account” but couldn’t find the double entendre, if there’s supposed to be one, in “census beaureu”, though I can almost see one. I’ll assume it was a typo, and express my sympathy — “bureau” is probably the word at which my mind most often goes blank as I try to spell it. Spelled correctly, it just does not look right on the page, to me.

  48. If you missed Paul Coppin’s post above, please take a look. If his information is correct, the six month limit hasn’t nothing to do with the FOI act per se. There is apparently a six month limit on the statute books pertaining to “summary offenses” in general. It would be like having committed a speeding violation but the prosecution isn’t initiated within six months – the charge must be thrown out of court.

    The only unanswered question is whether these offenses can be classed as summary. They would seem to be to be more serious, but who knows? Oh yeah, a lawyer would know. Have we got any reading this blog?

  49. Paul Coppin makes a sensible point. These offences have a limitation of 6 months because they are summary offences. The only way around this is to go for the agencies that dragged their feet to ensure that the 6 month deadline passed. But this would be extremely difficult. The alternative is to pursue these conmen through the courts for obtaining a pecuniary advantage by deception – namely their pay and grants which they received on the basis of publishing manipulated data. This would require a serious fighting fund. But don’t forget, you people of England, you have already surrendered your right to prosecute through the criminal courts. The Crown Prosecution Service (the govt.) can take over your prosecution at any time and withdraw it. Over the past 20 years your freedoms have slipped away into the the hands of the state ranging from the gift of power to the EU to the centralisation of power (what remains of it) at Westminster. I don’t like it but we may have to go down the US road where we elect our judges and police commisioners. There was a time, not so long ago, when these people were persons of integrity who understood their role in our governance. Now, with the prevalence of govt. ‘agencies’ we have unaccountable so called civil servants (servants – ha) lording over us and making sure that their agenda is rammed through whatever people might think or vote for.
    Sorry, fellow citizens, but you have been asleep at the wheel for so many years. So what can you do? You might even consider joining a political party and making your voice heard in a rather angry tone. I know, we are too worried about earning enough and paying the mortgage – I know I am. But if we don’t do something, we are lost. The crumblies (I am one) will probaly see out their lives OK but God help our children and grandchildren.
    It’s up to you. This climategate scam is just typical of Britain today. If the common citizen (and I am one) are not willing to get involved and that means shelling out some of your hard earned pounds (a sure test of commitment), then just accept it and you will be ruled by shysters for the rest of your life.
    Democracy means you have to do something even if it’s just donating. We have to get after these people and call them to account.

  50. Solomon Green (10:03:06) :

    If you have any evidence that this was not done and the documents were destroyed after your request you should make a further complaint to the Information Commissioner.

    Deep Throat.

    Who are you?

  51. These are but symptoms of a decaying culture, of a decomposing corpse turning into the oblivion, of worms excreta. Fortunately the so called “developed world” doesn’t count anymore but for laughing.
    Scientists of the kind of Al “Baby” Gore, James “Death Trains” Hansen, etc.etc are the runner ups of this occidental culture’s armageddon contest.
    Let us teach our children and granchildren the ways of truth, let us teach them that it is even fair lying to others but utterly stupid lying oneself.
    All what happens it is but a lack of nobility, the lack of the quality of not betraying one’s own convictions. This world shouldn’t be any longer that of the so called monkey minded “winners” who sell their principles, if any, their souls, their individualities, their value as human beings in exchange for “success” , this is the intrinsic, inmanent purpose of this blog’s endeavour: To clearly demonstrate how stupid, how silly it is that attitude and where it leads.

  52. @ Justin – part 4 means that the Secretary of State can amend the response time limit from 20 working days, to 60 working days, at his discretion. A Civil Service delay subroutine, if you will!

  53. Regardless of the 6 month issue, this is no surprise coming out of the FOI’s Commissioner’s Office given they were teaching Jones & Co. how to avoid the FOI in the first place:

    JONES ON 20.AUG.2009: “Keith/Tim still getting FOI requests as well as MOHC and Reading. All our FOI officers have been in discussions and are now using the same exceptions not to respond -advice they got from the Information Commissioner…. The FOI line we’re all using is this. IPCC is exempt from any countries FOI – the skeptics have been told this. Even though we (MOHC, CRU/UEA) possibly hold relevant info the IPCC is not part our remit (mission statement, aims etc) therefore we don’t have an obligation to pass it on.” [1219239172.txt]

  54. I suspect being humiliated at the court of public opinion will be more important than a criminal prosectiion which might garner the miscreants some sympathy.

    Tonyb

  55. The statue of limitations is *6 months*? Yeesh.

    That reminds me of one suggestion someone made on this side of the pond re dealing with flag burners –“Make beating the crap out of one a misdemeanor punishable by a $25 fine”.

  56. The FOI was flawed right from the beginning. It should be renamed “The Restriction of Information Act”.

    Firstly, the vast majority of FOI requested information should have been placed in the public domain in the first place, and in other countries similar information already is. Secondly, the FOI’s most pernicious weakness is that it places the right of censorship and withholding of perfectly reasonably requested info in the hands of unelected administrators who should have by definition no powers whatseover in this regard, yet wield that power with a flagrant abuse of their position.

    In addition, there are so many “get-out” clauses in the FOI that it has become, far from a democratic unleashing of public information, a mechanism by which public domain information is routinely withheld on the entirely spurious excuses of “not in the public interest”, “breach of official secrets”, “too expensive to retrieve the info”, “vexatious requests”, “national security”, “sensitive information”, “difficulty of gathering the requested info”, and a host of other excuses which render the Act almost useless except for the gathering of the blandest and most anodyne information.

    These are not accidental obfuscations but intentional core barriers designed into the whole structure of the Act. I was one of those who smelled a rat from day one of the Act’s announcement. It is not just that it has inherent flaws – these barriers were quite obviously fundamental to the FOI’s creation.

    One could argue that we might even be better off without the FOI, since, in formalising and codifying its remit, previous constitutional and traditional means of weeding out public-interest information have largely been overthrown, and now all requests for information are referred to not in the context of the citizen’s right to have that request satisfied, but in the context of what in the FOI allows institutions to get away with, and usually that is the bare minimum.

    By constructing a formal edifice that essentially now controls the output of all public information, the very privileges that were already part of the infrastructure of government versus the public’s right-to-know, have been largely overthrown. The Data Protection Act has had a similar effect, and, far from being properly used as a protection of individual privacy, has been far more efficiently used as a method by which public bodies can breach its terms with impunity while at the same time protect themselves from releasing data of interest to the public.

    If you read accounts of the seminal instance of the right to know: Watergate, you will see that much of the information leading to Nixon’s demise was obtained without any need for a Freedom of Information Act, and it could be safely argued that if an FOI had existed in the US at that time, the info which lead to an entire government’s destruction could probably not have been obtained, and no doubt such information would have been denied by reference to restrictions in such an Act!

  57. Is it any wonder that violence against governments breaks out when the very laws that are written to keep the scoundrels relatively honest are rigged with loopholes and exceptions? No politician has a right to complain when they get hammered.

  58. Hello.

    English environmental lawyer here.

    As some posters above have noted, the time limit for prosecuting FOI offences is 6 months. This is simply because, as with all “summary only” offences (that is, offences that can only be heard in a Magistrates’ Court – the lowest criminal court in England and Wales), proceedings must be commenced within 6 months of the commission of the offence, unless the statute provides otherwise. Thus any attempt to destroy information in the face of an FOI request is time barred after 6 months.

    Interestingly, however, the offence of a criminal conspiracy, is triable only on indictment, that is, in the Crown Court (England and Wales’ highest criminal court of first instance). Generally, unless otherwise indicated, there is no time limit for charging an indictable-only offence, and this is indeed the case for conspiracies. The lack of any so far published response to Phil Jones’ “Destroy all Data” email does not support the existence of a complete conspiracy, but it might nevertheless be regarded as an attempt to conspire to destroy data which was subject to an FOI request. An attempt to conspire could theoretically be charged and punished in the same was as a conspiracy itself. But don’t hold your breath.

    All IMNSVHO of course.

  59. The comment at Bishop Hill’s blog that I was referring to:


    Section 77 of the Freedom of Information Act 2000 creates the “offence of altering etc. records with intent to prevent disclosure”.
    The six month time limit on a prosecution derives from the “type of offence” specified by subsection 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.”
    A “summary offence” is triable in the Magistrates Court (with no jury) and Section 127 of the Magistrates Court Act 1980 applies.
    “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.”

    The last part “…or the matter of complaint arose.” might buy some leeway in time here, if it can be shown that the “matter of complaInt” was not evident until well past the 6 mo. period due to the nature of the process resulting in the complaint. Possibly the argument could be made that offense did not occur until the very last recourse was denied, some time after after the initial request. British shylocks with case law experience will have to comment on this.

  60. I think that the serious offence that has occurred was *conspiracy* to flout evade FOI laws. My vague recollection is that conspiracy carries unlimited prison sentence under English law.

    For this reason, Home Rule for Wales agitators in the 1960’s were charged with conspiracy to deface road signs – not with the trivial offence of defacing road signs.

    A lawyer who is clued up on English criminal law is needed to confirm and amplify my comment.

  61. With regard to the following:
    “Looks like the UK FOI law has only been in effect since 2005.
    I don’t have the resources to research UK legal archives, but I would be willing to bet a substantial sum of money that there has *never* been a single successful prosecution under this act.”
    The latest iteration of the FOI Act is dated 2002, the previous version was dated 2000. A number of sucessful prosecutions have been brought under the FOI Act against Local Government bodies, some Police Forces and other ‘official’ bodies.

  62. Conspiracy law is the handmaiden of prosecutors. Maybe this prosecutor’s sympathies lie elsewhere.

  63. Tarby (07:06:40) :

    You’re a clown.

    Any statute with limitations of 6 months is no statute at all!

    DaveE.

  64. Carbon Dioxide (08:59:16),

    You cannot claim for damages through the small claims system. You can only claim back what you have paid for a service.

    Mailman

  65. There is an E-Petition on the 10 Dowing Street website taking signatures to suspend CRU pending an investigation of its alleged wrongdoing. Anyone wishing to sign the petition is required to be British. There were already more than 2,000 signatures this morning. Anyone interested in signing?

  66. Mike McMillan (07:26:30) :

    Re the illustration – loopholes have nothing to do with strings or ropes forming a loop. They are the slots in castle walls from which the archers shoot the bad guys besieging the castle.

    Regards,

    Mike
    in my humble grammar n*zi guise

    I always thought it was those holes you got in wood planks left by the branch base in the trunk. I have no idea why I though this, but it seemed logical as many a small animal will get in/out of buildings through these.

    A quick search reveals you are correct and my odd assumption completely baseless. I am disturbed that I can have believed something so clearly, and for so very long, with absolutely no factual basis.

    But then again, I believed in Al Gore Warming for quite a while too before looking into it!

  67. This is just another reason to be added to a long list of others to take this fight to the next level – in the courts. There’s more than enough evidence to rpove the AGW thesis as peddled by the likes of the IPCC is both a hoax and a fraud. Otherwise, the battles will go on for years if not decades to come. Who wants that?

  68. JER0ME (14:47:34) :

    Mike McMillan (07:26:30) :

    Yes indeed – the things anyone can learn by reading WUWT on a daily basis. From the profound to the esoteric.

    And, thanks to Pamela, I now follow the meanderings of the jet stream at:

    http://squall.sfsu.edu/crws/jetstream.html

    and get quite a laugh when the on-air TV meteorologist rambles on about the northern and/or southern “branch” of the jet stream, as though they are two separate, clearly defined rivers of fast moving air.

  69. R. Craigen (10:29:23) :

    boballab: “It doesn’t matter if its Climate or the expanse account for some clod in the census beaureu that puts the afternoon hotel room romp with his mistress on it.”

    Hey bob, I appreciated the playful “expanse account” but couldn’t find the double entendre, if there’s supposed to be one, in “census beaureu”, though I can almost see one. I’ll assume it was a typo, and express my sympathy — “bureau” is probably the word at which my mind most often goes blank as I try to spell it. Spelled correctly, it just does not look right on the page, to me.

    This is often the case with foreign words as we are conditioned for certain patterns and sequences in words (that’s how we read, not by looking at each letter in turn – that would be way too slow). Odder still to my eyes is the plural, bureaux.

  70. Unfortunate yet typical loophole that the lawmakers put into laws to slip through thus avoiding penalties. It’s an example of the vicious and widespread double standard that members of the cult of government implement to stand above the rule of law. It is also what gives citizens impetus in standing up to and fighting unjust laws enforced by government cult members who are immune from wrong doing even as they commit wrongs against the citizens by their very actions. This type of loophole is a sign of a deep seated “we’re better than the masses” culture of corruption within the cult of government and it’s various forms of agents.

    At least it’s clear that the CRU guys careers will now be dogged by these allegations forever. In a way it could be worse for Phil Jones, et. al., at UEA as would it not be better to be charged and cleared than to not be charged and whitewashed by a limp law that has no teeth? Jones was guilty but the limp FOA law let him escape consequences from his scientific frauds.

    Maybe there are other laws that have teeth that can be used to go after him and his CRU?

  71. D.Patterson.
    Couldn’t find a petition re suspend CRU. but signed 2 others. Several CRU petitions in the rejected list. Although we probably know it will make little impact, at least all those in the UK who can barely believe the enormity of the corrupted science process should try.

  72. “It seems that there is to be a full enquiry by the UK government into the whole Climategate affair…”

    No – this is not a full parliamentary enquiry. It’s an enquiry by (and at the instigation of) the Parliamentary Committtee for Science and Technology, whcih is chaired by a LibDem (who appears to be a warmist). The other Parliamentary Committee with a remit in the area (ie environmental / climate etc) is charied by Tim Yeo, the Tory Environment spokesman who is definitely a warmist (otherwise he would not have got the brief!). I wonder what he thinks about the PCST enquiry – it’s probalby been set up with his blessing, to find the whistleblower rather than to examine the CRU miscreants.

    One of the Tories on the PCST is Nadine Dorries, who is going to be a bit distracted by problems with her expenses claims… and the election in on May 6th or is it 8th, meaning Parliament will be dissolved in a couple of months anyway – So don’t hold your breath

  73. “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”

    I don’t believe that loop-hole exists. Lab books and information in databases belongs to the lab/institute; you can’t destroy them.
    The CRU will also have the dumps, on magnetic tape, going back at least 5 years on site and off site.
    The backed up data is held by the computing people, not the department. Just because something is ‘deleated’ off the mainframe does not mean its gone; it is preserved.

  74. John McCutcheon:
    “But don’t forget, you people of England, you have already surrendered your right to prosecute through the criminal courts. The Crown Prosecution Service (the govt.) can take over your prosecution at any time and withdraw it. ….[snip] ….. I don’t like it but we may have to go down the US road where we elect our judges and police commisioners. There was a time, not so long ago, when these people were persons of integrity who understood their role in our governance.”

    Two glaring examples in the news just in the last 24 hours:

    Georgina Down’s heroic attempts to stop big business poisoning us with their chemicals got as far as the Court of Appeal only to be scuttled by the Govt taking over her case (and do note the spurious use of the term ‘scientist’ here, and the implications of this decision):

    http://www.guardian.co.uk/environment/cif-green/2010/jan/25/georgina-downs-pesticides?showallcomments=true#end-of-comments

    And the shocking case of the [possibly illegal, certainly inexplicable] lockign up of all papers pertainign to the highly suspicious death of Dr David Kelly, which only came to light as a result of the FOI request by a group of doctors researching the case:

    http://www.presstv.ir/detail.aspx?id=117022&sectionid=351020601

  75. @DocMartyn:
    UEA, the univeristy of which CRU is part, put out a directive that nothing int he CRU records was to be deleted very quickly after Climategate broke, so they are at least wised up to the possibility

  76. I suggest a UK trained lawyer look seriously at the criteria that redesignates information into evidence. For example, in Canada a tax audit, which is an information review, can turn into an investigation if there’s evidence to suggest the books are cooked. In other words, an intent to deceive.

    The Climategate e-mails are giving off a strong odour of just such a deception. Therefore, the information they contain no longer falls within FOI legislation but are now part of a criminal fraud investigation. Thus, M’Lord, I submit there’s no moratorium on the time limit if charges are being contemplated.

    Any UK criminal lawyers here on this thread care to comment?

  77. Fraud

    The successful prosecution of an alleged fraudulent incident is not simple and depends crucially on the definition of relevant terms in statutes, on the common law and case law.

    In Australia where I live ‘fraud’ is defined in this way:

    A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence. Quote from the Commonwealth Crimes Act 1914, Section 29D.

    Dishonestly obtaining a benefit by deception or other means (includes both tangible and intangible benefits). Quote from the Commonwealth Fraud Control Guidelines – May 2002 issued by the authority of the Commonwealth Attorney-General.

    My reading of a lot of Commonwealth case law leads me to this conclusion:

    To commit fraud is to intentionally create a situation prejudicially affecting the Commonwealth in which any of the following occurs:

    -dishonestly causing economic loss to the Commonwealth;
    -dishonestly influencing the exercise of a public duty;
    -inducing the Commonwealth or a Commonwealth agency to do any act to its detriment.

    I imagine the situation is not greatly different in the mother country (ie the United Kingdom) or in Uncle Sam’s place (ie the USA).

  78. Of course the UK law was written to cover buddies. So yes, it was a conspiracy. That is the only way laws get passed. Very true of us across the pond. Looks good, smells bad laws get on the books all the time. They are filled with special interest loop holes. If they didn’t have the holes, the thing would not see the light of day. It’s how things work. If we don’t like it, it is up to us to vote the buggers out.

  79. The jet stream finally settled (somewhat) into its typical El Nino path, but it sure took a while for that to happen. Long after El Nino showed up, the stream was still coming over Oregon and heading in a southeast path with loops and dips. It has recently settled into the southern pineapple belt track that flows in a more northeast manner. But I think it will only stay there for maybe a month, if that.

  80. Gee, why am I not surprised? No peer review before a jury for scientists who defrauded scientific peer review.

  81. Fraud

    The successful prosecution of an alleged fraudulent incident is a complex matter fraught with difficulties. It depends crucially on the definition of relevant concepts in statutes, the common law and case law.

    In Australia, where I live, these are the relevant definitions:

    Fraud is an indictable offence:
    A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence. Quoted from the Commonwealth Crimes Act 1914, Section 29D.

    Fraud means:
    Dishonestly obtaining a benefit by deception or other means (includes both tangible and intangible benefits). Quoted from Commonwealth Fraud Control Guidelines -May 2002, issued by authority of the Commonwealth Attorney-General.

    My reading of a lot of Commonwealth case law is this:
    To commit fraud is to intentionally create a situation prejudicially affecting the Commonwealth in which any of the following occurs:
    -dishonestly causing economic loss to the Commonwealth;
    -dishonestly influencing the exercise of a public duty;
    -inducing the Commonwealth or a Commonwealth agency to do any act to its detriment.

    I expect that the situation is not much different in the mother country (ie United Kingdom) and in Uncle Sam’s place.

  82. Most UK legislation is riddled with let-out clauses because it is drafted by Civil Servants, who even after the general decline in educational attainment among them, are a lot smarter than the toxic individuals we elect. How much proposed legislation is read, line by line by the majority of MPs is either very small or non-existant.

  83. Dr.T G Watkins(Wales) (15:45:53) :

    Couldn’t find a petition re suspend CRU. but signed 2 others.

    See:

    E-Petitions

    View Petitions

    You are viewing petitions in the “Science, technology and innovation” category

    We the undersigned petition the Prime Minister to suspend the Climate Research Unit at the University of East Anglia from preparation of any Government Climate Statistics until the various allegations have been fully investigated by an independent body. More details

    Submitted by Mike Haseler – Deadline to sign up by: 24 February 2010 – Signatures: 3,017

    More details from petition creator
    The Climate Research Unit at the University of East Anglia is a “leading centre” for the investigation of “manmade global warming” and government policy relies on the integrity of these statistics. Several claims have been made: that data was “cherry picked” to make the 20th century temperature rise look exceptional in historical terms; emails suggest the unit has colluded in “tricks” to “hide the decline” in a high profile scientific journal, and this unit has colluded in active, secret and highly political campaigning through the website “realclimate”.

    The preparation of climate statistics require many judgements: stations move & sites become surrounded by urban sprawl (urban heating) & a judgement must be made of the size of the offset to apply to the global temperature record. The University accepts most emails are genuine so it appears the Unit has been acting in a highly partisan way incompatible with that of a neutral body preparing and interpreting government data. We call on the PM to suspend all further use of the climate research unit until all pertinent allegations have been investigated and any action (if any) has been taken.

    You must be a British citizen or resident to sign the petition.

    http://petitions.number10.gov.uk/UEACRU/

  84. Forget about FOI crimes, that is the least of the crimes the CRU are guilty of.

    Who cares about that?

    How about conspiracy to commit AGW fraud?

    Deliberately manipulating data to falsely show “Global Warming” in order to obtain millions of pounds in tax payers money, funding them to then further manipulate data in order to receive yet more tax payers money and on and on, over how many decades?

    These are the charges I am interested in and I don’t intend to be distracted by FOI loopholes!

  85. Dr Watkins has the right idea. Conspiracy carries no limitation. But who will do the investigation? A formal complaint backed with evidence would have to be made to Norfolk Constabulary who would promptly groan at what this will do to their budget. Sorry folks, it all comes down to cash. A small force like Norfolk just doesn’t have the money to do this investigation. We have to look at other agencies; we could always look at the Data Protection Agency but they too are cash strapped and only go for easy targets. How about the agency that deals with FOI? Well do you believe that this is truly independent? Remember there are no elected officials to this organisation. The positions are all in the gift of govt. Just face it. You are in beauraucratic Britain. There are no independant public officials who will take up your case. You have sleep walked into the 4th Reich and we get the govt. we deserve.
    If you really want to go after these conmen, it means hard cash on the table and hiring some pretty sharp lawyers who are willing to stick their necks out. Anyone out there willing to organise a fighting fund, employ the investigators to get the evidence (and believe me, they don’t come cheap; never mind the lawyers)?
    We can blog this till the cows come home. Nothing will be done until we have a serious change at Westminster and that doesn’t mean voting for a party whose leader has a windmill on his roof. Cromwell, where are you now?

  86. I think the most likely outcome as a result of the Climategate disclosures is a requirement that many papers published by the CRU group may be affixed with an asterisk * “Not Valid for Citation as a Scientific Work.”

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