Legality of 6mth Time Period for Prosecutions

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8th February 2010

Case Reference Number IRQ0294973

Dear Mr Leaton

Thank you for your email of 7 February 2010 in which you have made a
request for information to the Information Commissioner’s Office.

Your request is being dealt with in accordance with the Freedom of
Information Act 2000.  We will respond by 8 March 2010 which is 20
working days from the day after we received your request.

Yours sincerely

Joanne Crowley

Assistant Internal Compliance Manager

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 01625 545 700 Fax: 01625 524 510 Web: www.ico.gov.uk

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8th March 2010

Case Reference Number IRQ0294973

Dear Mr Leaton

I am writing further to our email dated 8 February 2010 in which we
acknowledged your request for information to the Information
Commissioner’s Office (ICO).

Specifically your request stated;

“You have recently made press statements that you cannot prosecute
anyone over destroying data etc at the CRU because more than six months
has elapsed since the offence.
I would like all correspondance to the ICO on this matter, as well as
internal documents on the matter, including emails.”

As previously explained we are treating your request as a request for
information under the Freedom of Information Act 2000 (the FOIA).

Firstly it would appear helpful if I clarify that the “press
statement” to which you refer is the ICO’s response to a specific
enquiry from a journalist which we received in relation to the University
of East Anglia on 21 January 2010.  For your information the ICO provided
the following response to the enquiry;

“Norfolk Police are investigating how private emails have become public.
The Information Commissioner’s Office is assisting the police
investigation with advice on data protection and freedom of information.
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. It is for government and Parliament to consider whether this
aspect of the legislation should be strengthened to deter this type of
activity in future. We will be advising the University about the
importance of effective records management and their legal obligations in
respect of future requests for information. We will also be studying the
investigation reports (by Lord Russell and Norfolk Police), and we will
then consider what regulatory action, if any, should then be taken under
the Data Protection Act.”

It would also appear helpful if I clarify that Section 77 of the Freedom
of Information Act 2000 makes it an offence for any person to deliberately
alter, deface, block, erase, destroy or conceal a record after it has been
requested with the intention of preventing its disclosure.   Regulation
19 of the Environmental Information Regulations 2004 mirrors the
provisions of section 77.

The offence is a summary matter which means it is triable only in the
Magistrates’ Court. Under section 127 of the Magistrates’ Court Act
1980, proceedings for all such offences must be brought within 6 months of
the offence occurring.

The actual wording of section 127 is that a prosecution is to be commenced
“within 6 months from the time when the offence was committed, or the
matter of complaint arose”.

The 6 month period is calculated from the date when the actual offence was
committed, ie the date of the alteration or destruction of the record. It
is important to note that the reference to “the matter of complaint”
arising in section 127 is not a reference to a complaint being made to the
ICO, but references a particular way of bringing a prosecution to court.
The 6 month time limit for commencing a prosecution cannot be calculated
from the date on which ICO is made aware of the offence.

With regard to correspondence which we hold on this matter I have attached
copies of those emails which fall within the scope of your request which
are able to disclose to you under the FOIA.  The attached emails are as
follows;

Two ICO internal emails dated 19 January 2010

ICO internal email dated 20 January 2010

Email from journalist to ICO dated 21 January 2010

Emails between journalist and ICO Press Office dated 22 January 2010

Emails between journalist and ICO Press Office dated 28 January 2010

ICO internal email dated 28 January 2010

ICO internal emails dated 29 January 2010

You will note from the attached information that we have withheld the
personal data of certain individuals.  This information has been withheld
in accordance Section 40(2) of the Freedom of Information Act 2000 (FOIA)
by virtue of Section 40(3)(a)(i).  Section 40(2) allows a public
authority to withhold information from a response to a request when the
information requested is personal data relating to someone other than the
requestor and either the first or second condition in Section 40(3) is
satisfied.  In this instance the disclosure would satisfy Section
40(3)(a)(i) as to disclose such information would contravene one of the
Data Protection principles.

We consider that such a disclosure would be unfair and in breach of the
first Data Protection principle which states that – “Personal data
shall be processed fairly and lawfully”.

We also hold two internal emails dated 27 January 2010 and 1 February
2010, two letters from the University of East Anglia dated 29 January 2010
and two internal briefing documents regarding Section 77 of the FOIA.  In
addition we also hold information relating to complaints to the ICO about
the University of East Anglia. 

We are unable however to provide you with copies of these emails, letters,
briefings and copies of the information which falls within the scope of
your request contained within the complaints which we have received as
this information is exempt due to Section 31(1)(g) of the Freedom of
Information Act 2000.

The exemption at section 31(1)(g) of the FOIA refers to circumstances
where the disclosure of information “would, or would be likely to,
prejudice – … the exercise by any public authority of its functions
for any of the purposes specified in subsection (2).” 

The purposes referred to in sections 31(2)(a) and (c) are –

“(a) the purpose of ascertaining whether any person has failed to comply
with the law” and

 “(c) the purpose of ascertaining whether circumstances which would
justify regulatory action in pursuance of any enactment exist or may arise
…”    

These purposes apply when the Information Commissioner is determining
whether the University of East Anglia has complied with the FOIA and DPA,
and whether to take action.

However, this exemption is not absolute.  When considering whether to
apply it in response to a request for information, there is a ‘public
interest test’.  That is, we must consider whether the public interest
favours withholding or disclosing the information.   

In this case the public interest factors in disclosing the information
within the scope of the request are –

· increased transparency in the way in which the ICO conducts its
investigations into alleged breaches of the legislation it regulates

· increased transparency in the way in which the University of
East Anglia has responded to the ICO’s enquiries

The factors in withholding the information are –

o the public interest in maintaining public authorities’ trust and
confidence that their replies to the ICO’s enquiries will be
afforded an appropriate level of confidentiality while investigation
into a complaint a continuing;
o the public interest in public authorities being open and honest in
their correspondence with the ICO about the way they have handled an
FOI  request which is the subject of a complaint to the ICO, without
fear that their comments will be made public prematurely or, as
appropriate, at all;
o the public interest in maintaining the ICO’s ability to conduct the
investigation into FOI  complaints as it thinks fit, following the
statutory scheme for handling FOI complaints as laid down in the FOIA
(which includes a right of appeal to the Information Tribunal).

It is also necessary to consider the prejudice or harm that disclosure may
cause, and its likelihood. As already discussed, it is probably that any
disclosure at this stage would discourage full and frank discussions
between the organisations involved, may damage our ability to conduct the
investigation fairly and proportionately and jeopardise the ICO’s
ability to obtain information either relating to this case or others in
the future. This is likely to result in a reluctance to engage with the
ICO in the future.

Having considered all of these factors we have taken the decision that the
public interest in withholding the information outweighs the public
interest in disclosing it.  I am sorry, therefore, that in this instance
and at this time we are unable to provide you with the information from
the investigation that you have requested. 

If you are dissatisfied with the response you have received and wish to
request a review of our decision or make a complaint about how your
request has been handled you should write to the Internal Compliance Team
at the address below or e-mail [2][email address]

Your request for internal review should be submitted to us within 40
working days of receipt by you of this response. Any such request
received after this time will only be considered at the discretion of the
Commissioner.

If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation.  To make such an application, please write
to the Case Reception Team, at the address below or visit the
‘Complaints’ section of our website to make a Freedom of Information
Act or Environmental Information Regulations complaint online.

 

A copy of our review procedure is attached.

Yours sincerely

Joanne Crowley

Assistant Internal Compliance Manager

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 01625 545 700 Fax: 01625 524 510 Web: www.ico.gov.uk

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9th March 2010

Case Reference Number IRQ0294973

Dear Mr Leaton

Thank you for your email of 8 March 2010 regarding your complaint about
the BBC Trust.

I have copied your email to your complaint case about the BBC Trust which
is currently with our FOI Case Reception Unit.  Our FOI Case Reception
Unit has advised me that your case will be sent to our FOI Triage Team who
will consider the issues which you have raised.

I trust that this information is of use to you.

Yours sincerely

Joanne Crowley

Assistant Internal Compliance Manager

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 01625 545 700 Fax: 01625 524 510 Web: www.ico.gov.uk

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