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Destroying evidence.

Re: Destroying evidence.

Postby b1969 » Fri Jun 23, 2017 10:40 am

Goldensyrup wrote:However it is rare, very rare for the ICO to take action even when they know an offence has been committed.

The Information Commissioner's Office (ICO) has never prosecuted for an offence under section 77 of the Freedom of Information Act 2000. This is not, though, because of a lack of courage or will, but because, as a summary offence only it is subject to the provisions of section 127(1) Magistrates' Courts Act 1980 and this provides (as you allude to) that "a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose."

For practical reasons it is very difficult to bring a successful s77 prosecution within this timeframe. This is something the Justice Committee accepted during its post-legislative scrutiny of the FOI Act in 2012, and it recommended

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. 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.

In response, the government said

The Government accepts the conclusion of the Select Committee that the current provisions under section 77 are insufficient to allow the Information Commissioner’s Office sufficient time to bring a prosecution where appropriate. However, the Government does not consider it necessary that cases under section 77 are heard by the Crown Court, nor that the existing penalties are insufficient in being an effective deterrent to misconduct. To address the problem, the Government is instead minded to extend the time available to the ICO to bring a prosecution to six months from the point at which it becomes aware of the commission of an offence rather than six months from the point at which such an offence occurs. This change will address the core problem of insufficient time available to bring a prosecution without an excessive response of making the offence triable either way.

No such change has transpired. Make of that what you will.

(Apologies - that was a long, rather off-topic post, but one I know a bit about)
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Re: Destroying evidence.

Postby Goldensyrup » Fri Jun 23, 2017 3:32 pm

b1969 Two years ago I requested recorded information from a public body. It was created two weeks before my request. I informed the public not to destroy. They admitted it existed and refused to supply. The ICO were requested to force them to produce up. This was 3 months after they were created. The public body then stated that they had destroyed them some weeks after the request. I requested that the ICO take action against the PB for a section 77 offence. The ICO then said if it is the normal practice of a PB to destroy information requested then they may do so.
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