Hiding Information and section 77 FOIA

My twitter timeline was alive this morning with discussion of news that the Information Commissioner (“IC”) is to investigate the Education Secretary Michael Gove and his close advisers at the Department for Education in connection with allegations that they have deliberately been using private email accounts to conduct government business.

E-mail traffic, seen by the FT, shows the education secretary and his advisers have conducted government business using private e-mail addresses. Civil servants were then unable to find these e-mails when asked to retrieve them under the Freedom of Information Act (FOIA).

(It should be stressed that the Department concerned appear to deny that there was any impropriety, and that private email was being used to conduct party political rather than government business.)

The article concludes by referring to section 77 of FOIA

Section 77 of the act states that officials must not conceal or destroy information to prevent its disclosure. Breaches of the law carry a fine of up to £5,000.

This perhaps misses a key point. Section 77 states

Where…a request for information has been made to a public authority, and… the applicant would have been entitled…to communication of any information…any person to whom this subsection applies is guilty of an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to the communication of which the applicant would have been entitled.

This is carefully worded and means, I would submit, that an offence can only be committed if the attempt to conceal occurs in response to a request having been received. If, however, it is merely standard practice to conceal, no offence would be committed. FOIA is predicated largely on what happens or must happen if a request for information is made. It is not, primarily, a records management act.

However section 46 of FOIA does require the Lord Chancellor to issue a code of practice for management of records. Section 9 of that Code deals with the need to keep records in systems that enable records to be stored and retrieved as necessary, and section 10 with the need to know what records are held and where they are.

Under section 47 of FOIA the IC must promote the following of good practice by public authorities and perform his functions so as to promote the observance by authorities of the section 46 Code, as well as the requirements of the Act in general. And under section 48 he may issue a “practice recommendation” if it appears to him that the authority has not conformed with the section 46 Code. In investigating compliance with the Code he has the power (section 51) to issue an “information notice” requiring the authority to furnish him with the information. Failure to comply with an information notice can, ultimately, constitute contempt of court.

None of this is to down-play the potential seriousness of an allegation of a “pre-emptive” attempt to conceal information. It is also not to suggest that it might not constitute a breach of other kinds of code.  However, I would suggest that the biggest weapon at the IC’s disposal is one of publicity, something that Christopher Graham, the current IC, with his journalistic background, is quite good at creating.

[EDITED TO ADD] FoIMan’s and Tim Turner’s takes on this are worth a read. Additionally, I note that the indefatigable Campaign for Freedom of Information took the opportunity to maintain the push for greater sanctions under section 77.

24 Comments

Filed under Freedom of Information

24 responses to “Hiding Information and section 77 FOIA

  1. Spot on Jonathan.
    I would also suggest that the attempt to “avoid FOI requests” is misguided as clearly if the info relates to Government department business, however it is held and wherever, it is info held by or on behalf of the authority for FOI purposes (see section 3(2)).

  2. Hi Ibrahim

    While I would broadly agree with you I’m just wondering to what extent information is s3(2) “held” if it consists of emails sent via webmail. As far as I know it is not possible to intercept webmail messages (at least without recourse to rather draconian powers). If I send, for instance, a gmail message to another gmail account (or a hotmail/yahoo account etc) my IT dept can’t see its contents. If they can’t see its contents I don’t think it can be argued that the authority “holds” the information.

  3. See Section 3(2) (b) _ information held on behalf of the authority?

    Surely if the information is about official government business then Google is holding it on behalf of the authority and so it the user?

  4. Yes – I concede the point!

    Nonetheless, it would be difficult, in the absence of evidence, to determine whether such information existed or not.

  5. Pingback: » GoveGate and FOI Avoidance FOI Man

  6. Pingback: The ICO and records management | informationrightsandwrongs

  7. Alan M Dransfield

    Transparency accountability must be seen to be working

  8. martin

    Disagree with the author. See http://www.bbc.co.uk/news/health-37943379
    Clearly it is the INTENT to break the law, Section 77, and then the INCITEMENT for others to also break the law, that is an offence.

    • Thanks for your comment, but I’m afraid I don’t understand. The offense is contained in section 77. An inchoate offence (ss44-46 Serious Crime Act 2007, formerly “incitement”) can indeed be committed, but I don’t see where your disagreement lies.

      The article you link to does not suggest an offence has been committedm

  9. I note the ICO have STILL not published their Register of Interest docs yet which is also a breach of sect 77??

  10. I expect such tosh from you. They are purposely hiding information and obstructing info

    • Why resort to abuse?

      Section 77 is only triggered if a request has been made and information is destroyed or blocked etc. It cannot apply when no request has been received.

      • Sect 77 of the FOIA states

        Where…a request for information has been made to a public authority, and… the applicant would have been entitled…to communication of any information…any person to whom this subsection applies is guilty of an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to the communication of which the applicant would have been entitled.

        I have made a specific FOIA request to th ICO for Register of Interest details for the last 3 years and ziltch response. That is pure and simple sect 77 breach

      • When did you make your request? Have you had a response?

      • Rt Hon. Elizabeth Truss,

        The Lord Chancellor

        House of Commons,

        London,

        Dear Madam

        I write to you in your official capacity as Lord Chancellor to make a formal complaint against the New Information Commissioner Elizabeth Denham.

        There is tangible evidence on file that the ICO are in meltdown and they have been complicit with HM Judges to pervert the course of Justice.There is also evidence that Miss Denham is complicit with Rogue Judges and Rogue Public Authorities Nationwide to pervert the course of Justice.

        In particular,I ref to the GIA/3037/2011 Dransfield v ICO. I am the UK’s leading case authority on vexatious exemptions and I call upon the Lord Chancellor to hold a public inquiry into the conduct of the ICO and in particular the use and abuse of section 14/1 vexatious. Ditto for the use and abuse of section 12(4)(b) Manifestly Unreasonable under the EIR 2004.

        The GIA/3037/2011 is at best a getoutofjailfree card and at worst, a tool designed to pervert the course of Justice,I suggest the latter.

        The ICO have failed to publish their Register of Interests,including Miss Denham they have been allowed to be reimbursed expenses without any receipts and they are handing out Vexatious exemptions and Manifestly Unreasonable grounds like confetti.

        Miss Denham is wilfully and knowingly breaching section 77 of the said act by thousands of arbitrary decisions solely for Political Expedience.

        In essence, Miss Denham is acting as a Government Gatekeeper and has denied thousands of people their Civil and Human rights..

        My GIA/3037 case has exhausted the English System at the Supreme Court.

        I will gladly meet with you for face to face talks on this matter because Miss Denhams action and inaction will bring this Government into disrepute.

        For your information,action and files

        With thanks

        Yours sincerely

        Alan M Dransfield

        .

      • Miss Denham doesn’t have a work visa. Does that make her illegal

      • Does she need one? If so, how do you know she doesn’t have one?

      • Miss Denham hasn’t published her Register of Interest yet so we must assume she is an illegal and yes she does need a work permit to be here. Could that be why she has adopted a dumb insolence stance

      • No, we must not assume that, because it would be entirely illogical to do so.

      • Information Commissioner
        Elizabeth Denham

        Dear Madam

        I draw your attention to the new European Ruling under Article 10 Magyar Helsinki Bizttsag v Hungry.

        This decision will now require the ICO to revisit the current Vexatious Court Authority GIA/3037/2011 Dransfield v ICO because the EUCHR is a superior Court to the UK’s Supreme Court and this latest decision will require HM Lord Chancellor to rewrite the Legal Definition of Vexatious and the ICO will need to rewrite their Vexatious Guidelines (again).

        It will also mean the ICO will need to revisit the 5000 illegitimate Vexatious and Manifestly Unreasonable decisions made by the ICO which are piggy back to my infamous Dransfield Case GIA/3037/2011 Dransfield v ICO..

        In the first instance, may I suggest to arrange a BREXIT Type of meeting with you to discuss the ramifications of this new EU Law.
        BTW, my request bundle to the ECHR included article 10 also, which you guys at the ICO were well aware of.

        In a nutshell this latest ruling by the ECHR throws a spanner in your evil plans to prevent Civil and Human Rights for UK Citizens by your consistent breaches of section 77 of the FOIA 2000. Every time you have used section 14/1 of the FOIA or section 12 (4)(b) of the EIRA is an unlawful processvia consistent breach of section 77 of the FOIA.

        This will also mean the ICO MUST cease and desist from using the GIA 3037 Dransfield Case as a Court Authority forewith.

        I hope your CV is updated because I have a feeling you might get the sack shortly.

        For your information action and files

        Yours sincerely

        Alan M Dransfield
        PS
        Don’t worry about your about your work visa and Register of Interest, you wont need them.

  11. You are SOO much like Timmy Turner,he also thinks he is a FOIA Guru. I have put in a request for the Register of Interest and they are deliberately blocking and obstructing my Request just as they did with my Vexatious chestnut.
    Sorry, I fail to see how my last message abusive

  12. I put my FOIA request into the ICO 5/6 weeks ago,ziltch response.

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