First prosecution under s.77 of FOIA

FOIMan reports on the first prosecution for obstructing an FOI request in the UK.

In the midst of everything that’s going on, a very significant development in UK FOI may have escaped your notice. Last Friday (13th March 2020), the Information Commissioner’s Office (ICO) reported that they had successfully prosecuted a town clerk in Shropshire under s.77 of the FOI Act. For those who need a reminder, s.77 of FOIA says that if a request has been received by a public authority, any person:

‘…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.’

In this case, the town clerk at Whitchurch Town Council had deleted an audio recording of a council meeting that had been requested by an individual who had questioned the reliability of the official minutes. The clerk received a fine of £400, and was ordered to pay costs of £1,493 and a victim surcharge of £40.

This is such a significant development because although it is 15 years since FOIA came into force (and nearly 20 since it was enacted), there has never hitherto been a successful prosecution. In 2018 the ICO tried to prosecute a councillor from Thanet District Council but was unsuccessful.

One of the problems is that a prosecution has to take place within 6 months of the offence (i.e. the deletion or other obstruction) taking place. Very often, an offence won’t even come to the attention of the ICO until a significant period has passed. In 2010 leaked emails appeared to show a professor from the University of East Anglia encouraging colleagues to obstruct requests from critics of climate change research, but it wasn’t possible for the ICO to prosecute due to the time that had passed since the relevant emails had been sent. Two inquiries into UK FOI since – the post-legislative scrutiny carried out by the Justice Committee in 2011-12 (recommendation 20) and the Independent Commission on FOI in 2016 (recommendation 3) – have recommended changing the law to make prosecutions easier. Successive governments have failed to do so.

The successful action will be welcomed by campaigners and supporters of FOI who have been calling for the ICO to use its powers to enforce FOIA, but we will have to wait and see whether this is a sign of a changing approach from the regulator or just a novelty of mainly academic interest. At the very least, it is useful for practitioners who can point to this prosecution as evidence that there are consequences of not cooperating with FOI enquiries.

In more topical news, the ICO have blogged this week that they intend to take a pragmatic approach (understandably) to enforcing FOI for the duration of the coronavirus crisis. So we will have to wait until relative normality has returned before we see more evidence of any more robust approach to enforcement.

On a personal note, stay safe everyone and keep an eye out for those who might need help in these uncertain times.