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Section 77 FOIA

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Re: Section 77 FOIA

Postby Goldensyrup » Wed Jul 08, 2015 12:37 pm

The ICO have published information today on Section 77 breaches, which indicates that they have not instigated any proceedings for breaches to section 77 in the last two years.

I would pontificate that based on their figures that it must be very rare since the act came into being that any proceedings have been undertaken to prosecute section 77 FOIA offences. Could it be that Public Bodies do not misbehave in this area or are the ICO extremely reluctant to ever take action?

https://www.whatdotheyknow.com/request/ ... ing-676024
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Re: Section 77 FOIA

Postby atticus » Wed Jul 08, 2015 12:44 pm

or difficulties proving it?
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Re: Section 77 FOIA

Postby b1969 » Wed Jul 08, 2015 12:51 pm

The reason cases have not been brought is because by virtue of s127(1) of the Magistrates' Courts Act 1980 they must be brought within six months of the offence taking place. Given the nature of FOI, it is going to be quite rare for the ICO to be given or find evidence sufficient to bring a prosecution within that timeframe. I don't think there's reluctance on the part of ICO - quite the opposite - they have lobbied for law change to make it easier to bring prosecutions, by making the offence triable either way.

It's important to note that mere abject non-compliance with its obligations under the FOI Act will not likely constitute an offence by a public authority. There must be intent to he destruction, blocking, erasure etc must be done with the intent of preventing disclosure in circumstances where the person committing the offence knew that the requester was entitled to it. That's a high evidential hurdle for the ICO.
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Re: Section 77 FOIA

Postby Goldensyrup » Wed Jul 08, 2015 2:49 pm

In the case mentioned in the first post the public body were made aware of the FOIA request and put on warning not to destroy the information. The ICO were also alerted. The PB some three months after the request stated that they had destroyed the information. When questioned by the ICO they stated that they had destroyed the information as per their normal course of business. The ICO stated that a public body may destroy requested information after a request is made for it if it is something they would destroy in their normal course of business.

The ICO have been challenged on this prognosis but have yet to respond as a PB could destroy any amount of information after it has been requested and say that it was part of their normal course of business. The Public body was also challenged and stated that it has not got a policy or guidance for the destroyed information but that is how they have always operated of destroying notes of meetings (even if requested prior under FOIA) before minutes of meetings are approved.
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Re: Section 77 FOIA

Postby b1969 » Wed Jul 08, 2015 3:13 pm

Indeed - that's what their policy broadly states. I presume in this case we're talking about a local authority of some sort - there is an historical custom and practice for destroying clerk's notes once the minute of the meeting is agreed, and even if that wasn't documented I'm not surprised the ICO decided not to take action.

That's not to say that the ICO necessarily agreed with the public authority about destroying the notes. They might even have thought it whiffed a bit, but they have to bring prosecutions only when there is sufficient evidence to do so, and, where there is, whether it is in the public interest to do so.

You might think there is (in both tests). I might even think there is. But we don't decide, and I suspect the public authority would have enough of a defence to mean that a prosecution would not be appropriate.
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Re: Section 77 FOIA

Postby Goldensyrup » Thu Jul 09, 2015 8:29 am

In this case the PB destroyed the notes of the meeting I am informed, 5 months before they approved the minutes. I suspect most GB's will have a document retention policy that will include when material can be destroyed. The notes in this case were requested to make a complaint about unlawful conduct that occurred at the meeting and the PB were informed of this reason at the outset of the request.

Now if I requested today up front for a copy of the notes of a meeting that was going to occur on the 5th November 2015 of this PB, I would be informed that the information is not held. If I requested it on the 6th November 2015, I would be told that the PB does hold the information, but their policy is to destroy. If then an Internal Review is requested, they would then say they don't hold the information because it has been destroyed.

So what is being done here is a cast iron exemption (unlawful exemption in my view) full time never to supply this type of requested information. We all know that notes of minutes can differ quite a lot from draft minutes of a meeting and approved minutes of a meeting. And if this latitude can be allowed with notes after a request is made how far could a PB stretch this practice?
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Re: Section 77 FOIA

Postby prosecutor » Tue May 03, 2016 4:27 pm

did you give up on s77?
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Re: Section 77 FOIA

Postby Goldensyrup » Wed May 04, 2016 7:23 am

I never gave up until the ICO ruled that it was lawful for a public body to destroy the requested material after a request had been made. I vehemently disagreed with them but the ico are a law unto themselves and not fit for purpose IMO. I felt that they must have internal 'lines to take' to ensure there is never an s.77 prosecution.
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