ICO investigated potential FOI criminal offences by government departments

Under section 77 of the Freedom of Information Act 2000 (FOIA) a person commits a criminal offence if – after someone has made a request for information to a public authority, and would have been entitled to disclosure of that information – he or she

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 the only section of FOIA which carries a criminal penalty. It is very rarely invoked: since FOIA commenced in January 2005, there has been just one successful prosecution brought by the Information Commissioner’s Office (ICO) (and, as far as I know, only one other, unsuccessful, prosecution).

One reason for the lack of cases is that the ICO can only bring a prosecution within six months of the offence occurring. This has been identified for many years as an issue which should be addressed (but successive governments have declined to do so).

Nonetheless, a recent FOIA disclosure by the ICO reveals that in the last few years potential section 77 offences by government departments have been investigated. The request, made via the public WhatDoTheyKnow platform, was for information on “all Section 77 investigations carried out regardless of outcome for all Government departments”. In response, the ICO disclosed that

we have opened the following cases with regard to allegations of s77 allegations against Government Departments:
PCB/0013/2018 – MoJ IC/506/2020 – DWP IC/0549/2020 – Cabinet Office INV/0950/2021 – Cabinet Office.

This appears to suggest the existence of four separate investigations. In response to a request for further comment the ICO press office stated to me that none of the cases was still open, but declined to say any more. This seems to confirm that no proceedings were brought as a result of the investigations, but it is not possible to speculate on the reasons why. Nor are details available as to the circumstances under which the investigations were made.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under access to information, Cabinet Office, DWP, Freedom of Information, Information Commissioner, Ministry of Justice, section 77

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