Out-Law News 5 min. read

Higher fines should be issuable against bodies that tamper with FOI data, says Commons committee

Public bodies should face higher fines for destroying or altering information that is "disclosable" under freedom of information (FOI) laws, a committee of MPs has recommended.

The Justice Select Committee in the House of Commons said the Crown Court should be able to fine public bodies more than the £5,000 they can currently levy for such tampering of information. It also advised that the time limit in which prosecutions for such offences can be brought be removed.

Currently prosecutions for any destruction or alteration of information that can be disclosed under FOI can only be brought within six months of such an act being committed. The Justice Select Committee said that this restriction has resulted in no one being prosecuted for such a breach of the FOI Act.

"The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner's Office seeing evidence that such an offence has occurred," the Committee said in a report into the Act.

"We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action," it said.

Earlier this year the former Scottish Information Commissioner Kevin Dunion said that six months was an inadequate amount of time to bring prosecutions against individuals that tampered with information requested under FOI. The amount of time taken for the various procedures under the regime to be completed, together with the time the Commissioner's Office needs to investigate alleged wrongdoing, meant prosecutions could not be brought within the time limit, he said.

In its report the Justice Select Committee rejected calls to introduce a charging regime for making FOI requests. It said that whilst public bodies do face "costs" in complying with requests, there were also "savings which accrue from the disclosure of inappropriate use of public funds or, more importantly, fear of such disclosure."

It would be "is difficult, if not impossible" to charge those that commercially benefit from information they receive through FOI, such as the media, the Committee said. It said this was because the FOI Act "operates on the basis of requester blindness". It said introducing a requirement that individuals identify themselves when making requests could be "circumvented" by individuals making requests using the names of friends or family members. Policing against such activity would be "expensive" and have a "limited effect", the committee added.

The "focus" of the FOI regime is on "whether the disclosure of information is justified, not who is asking for that information," the Committee said.

"If the statutory scheme deems it right that data should be released then it is irrelevant who is asking for publication; release of such information is to all, not just the individual requestor," it said. "Nevertheless it can be argued that someone seeking to exercise freedom of information rights should be willing for the fact they have requested such information to be in the public domain; we therefore recommend that where the information released from FOI requests is published in a disclosure log, the name of the requestor should be published alongside it."

"While we recognise that there is an economic argument in favour of the freedom of information regime being significantly or wholly self-funding, fees at a level high enough to recoup costs would deter requests with a strong public interest and would defeat the purposes of the Act, while fees introduced for commercial and media organisations could be circumvented. Any future reconsideration of the economic argument for charging would need significantly better data on the number of requests made under the Act and the costs incurred in responding to them," it added.

To reduce the cost burden on public bodies in dealing with FOI requests, the Committee said that the number of hours spent by officials at the organisations on complying with the requests could be limited to 16 hours. It said that limit should not apply to time spent on "subjective activities such as reading and consideration time". This is because those activities are "overly dependent on the individual FOI officer's abilities" that brings inherent inconsistency into the process.

"A standard marginal decrease in the 18 hour limit may be justifiable to alleviate the pressure on hard-pressed authorities, particularly in the context of increasing numbers of requests," it said. "We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the Government would want to carry out further work on how this would affect the number of requests rejected [on the basis that complying with them would prove costlier than the 'appropriate limit' set], and the corresponding weakening of the right to access information."

The Committee said that whilst disclosure of information can lead to "unfair or partial" comments being made about public bodies, that was a "regrettable" bi-product of "a price well worth paying for the benefits greater openness brings to our democracy." Despite evidence from ministers and officials that the FOI Act had had a "chilling effect" on policy discussions, the Committee said it could not come to the same conclusion.

"Given the uncertainty of the evidence we do not recommend any major diminution of the openness created by the Freedom of Information Act, but, given the clear intention of Parliament in passing the legislation that it should allow a 'safe space' for policy formation and Cabinet discussion, we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions," it said. "We also recognise that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space."

The Information Commissioner, Christopher Graham, who is responsible for overseeing public bodies' compliance with the FOI Act, said the framework is "fit for purpose".

"Negative comments by senior figures about the safe space issue only serve to create a false perception, and inaccurate suggestions that the Act is not regulated consistently or as Parliament intended may discourage the use of that same ‘safe space for policy making’ for which the law provides," Graham said in an ICO blog. "Such baseless comment is less than helpful. The committee's report should help to dispel the myths."

"On a more positive note, it is encouraging to see the committee’s support of greater powers for the ICO around destruction of requested information, the need for which we had highlighted in our own submission. The proposed change to remove the time limit on prosecutions would better reflect the seriousness of the offence, as would a higher penalty on conviction," he added.

The Ministry of Justice will consider the Justice Select Committee's report before the Cabinet decides whether to affect any changes to the existing FOI Act.

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