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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Rhys Jaggar

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]!!!!!!

Phillip Bratby

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.”

Such a loophole would have already been used in other circumstances, outside of AGW. Has it ever been?

ALL TO JAIL NOW!!!!!!!!!!!!!!!!!

Scott

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.

Larey

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.

MattN

Whitewash-gate….

How about a civil suit for damages ?

JohnH

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.

P Solar

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.

Patrik

Bad news. 🙁

“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”

Tenuc

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?

Tarby

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.

Dodgy Geezer

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….

JohnH

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.

Jack

Another piece of legislation passed unread, undiscussed and underhanded.

JohnH

And the BBC is covered by FOIA
http://www.bbc.co.uk/foi/

son of mulder

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

Mike McMillan

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

James Sexton

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?

b.poli

I bet the FOI legislation does not include fraud.

Jack

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.

J.Peden

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.

TerryS

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.

Dave, UK

D’oh.

Mailman

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

Mark_K

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.

DanD

In other news, the sun appears to be dead.
At least, that’s the impression I get from looking at the current sunspot image 🙂

Mike Nicholson

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 !!

wws

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.

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.

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.

anopheles

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.

Veronica (England)

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.

CheshireRed

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….

Tarby

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.”

Justin

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?

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.

Tenuc

Just had a thought! Perhaps there is some better drafted EU FOI law that can be invoked?

Hoi Polloi

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.

Dodgy Geezer

@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….

Paul Coppin

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.

Robinson

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.

HankHenry

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

Mailman

anopheles (08:10:19) :,
http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1980/cukpga_19800043_en_1
It would appear you are right. I guess its time to engage lawyers aye?
Mailman

Carbon Dioxide

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.

Nigel S

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?

hotrod ( Larry L )

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

MartinGAtkins

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.