You may remember that back in November I reported here that we were lodging a complaint with Norfolk Police about clear and criminal breaches of the FoI Act by staff at the University of East Anglia's Climate Research Unit. Two months on, the story has got messier and messier.
When I originally called the police, they were a tad confused: "Why are you phoning us if you live in London?"..."Erm, because the crime was committed in Norfolk." "It's not a question of criminal law"..."Ah, yes it is, I've got the Act here."
So they took the complaint on, gave me an official number for it and said they'd get back to me. A couple of weeks ago, I received a letter from DC 461 Stephen Mitchell essentially saying they were referring me to the Information Commissioner. This is obviously a point for debate, because the Commissioner or the Director of Public Prosecutions can take forward FoI cases, but at that time there was still a chance the Commissioner's Office would act on this extremely serious matter. Quite why it took the police six weeks to draft a letter essentially announcing that they were refusing to take on the case, who knows.
This week we got the Information Commissioner's answer - and it is less than encouraging. The CRU did act illegally and in breach of the FoI Act, the Commissioner confirms, but because of the Statute of Limitations on Freedom of Information, it is only possible to prosecute within six months of the offence.
This is an absurdity and a scandal. A six months statute of limitations on Freedom of Information offences has two obvious weaknesses.
First, it is part of the nature of FoI offences, which by definition involve secretive behaviour, that many of them do not come to light for quite some time. There is no benefit to protecting people from prosecution for crimes only a few months old. By what logic is the crime okay if it happened 7 months ago but punishable if it was six months ago?
More importantly, even if you discover the offence or choose to appeal straight away, it takes longer than six months for a case to even reach consideration for prosecution, according to the ICO itself.
Consider the track of an FoI complaint:
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- Before you even start complaining, you will have had to wait 20 working days, hoping in vain for your FoI request to be answered. One Month Gone.
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- Then you have to spend at least another 20 working days appealing internally to the organisation you were trying to FoI. Two Months Gone.
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- Only now, two months after the offence, are you allowed to go to the Information Commissioner's Office (ICO) to lodge an initial complaint.
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- In the next month, the ICO will deal with only 40% of cases brought to it, which tend to be those which are easily dismissed as invalid. Three Months Gone.
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- Even after your complaint has been with the ICO for six whole months, there is only a 67% chance it will have been dealt with, and those processed at this stage are most commonly punished with a slap on the wrist for the offending organisation. Eight Months Gone.
- Even after your complaint has been with the ICO for six whole months, there is only a 67% chance it will have been dealt with, and those processed at this stage are most commonly punished with a slap on the wrist for the offending organisation. Eight Months Gone.
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- Amazingly in the next six months after that only another 10% of the total cases are resolved. So 14 months after your original FoI, and 12 months after appealing to the Commissioner, 23% of cases are still not processed. 14 Months Gone.
This would be bad enough if the selection of cases to be dealt with straight away was entirely random. In that scenario you would probably have around a 55/45 chance of getting to the prosecution stage within the six month limit. However, it isn't random - and in all likelihood the very fact that your case might require prosecution will mean it takes longer than the available time. If you consider that cases that could lead to conviction are by definition those that require the most attention and take the most time to process, then that rump of 23% of cases still sitting at the ICO 14 months after the original requests are in all likelihood precisely the controversial cases to which the statute of limitations applies.
A statute of limitation is dubious in any circumstances, but when it makes prosecution practically impossible in almost every case it is simply a joke. One encouraging sign is that the Deputy Information Commissioner has expressed a wish to abolish the time limit on prosecution, saying that he is currently "gathering evidence from this and other time-barred cases to support the case for a change in the law". He should be applauded for that and we would back him to the hilt.
So what can we do now?
Well, there are three things to do. The first is to keep campaigning for proper reform of FoI law to expand its remit and allow more time for prosecutions. One way to do that is to vote for an FoI extension in the Power 2010 ballot here.
The second is to write to the Vice Chancellor of the University of East Anglia demanding that Prof Phil Jones, the head of the Climatic Research Unit, be sacked permanently, he is currently on a temporary suspension. After all, while he appears to have escaped prosecution, the ICO has confirmed he appears to have broken the law. The Vice Chancellor is called Prof Edward Acton, and can be emailed here: [email protected] (NB please be polite - we will get better results from Prof Acton being on our side, and the crime was not his.)
The third is to join the TaxPayers' Alliance, to strengthen the campaign against exactly this type of abuse of taxpayers' money. It's free to join, and you can do so here.