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Section 77 FOIA

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Section 77 FOIA

Postby Goldensyrup » Thu Jul 02, 2015 2:52 pm

Section 77 of the FOIA is I believe only one of two areas of the act that if breached may result in a criminal offence occurring. The explanatory notes in the act on s77 state.

Section 77: Offence of altering etc. records with intent to prevent disclosure

234.This section makes it an offence to alter, deface, block, erase, destroy or conceal records held by a public authority with the intention of preventing its disclosure to an applicant who has made a request for the information and is entitled to receive it. The offence applies to the public authority and anyone who is employed by, is an officer of, or is subject to the direction of, the public authority. A person found guilty of the offence is liable to a fine not exceeding level 5 on the standard scale (currently £5000). The offence cannot be committed by a government department but can be committed by civil servants.

A request was made to a public body in January 2015 for a copy of the notes of a public meeting, because the complainant believed certain procedures were unlawful and informed the PB that they requested a copy of the clerk's notes and informing them as to why which was to make a complaint. A separate Government Department in writing commented that procedures were indeed flawed before even receiving the full complaint which they still await.

The PB resisted supply from the request. They further resisted after Internal review to supply citing that the requester had no right to recorded notes of their clerk. The act appears to say otherwise. The ICO then got involved after a complaint and began communicating with the PB. The PB then informed the complainant that they had destroyed the information the requester was seeking. The requester complained to the ICO citing s77 breaching. The ICO contacted the PB. The PB said we always destroy our clerks notes as a matter of a 'course of normal business'. Complainant states request was made well before the 'normal course of business' was enacted. A senior policy maker at the ICO has agreed with the PB. Complainant stated that if his judgement is lawful, a whole host of material could be destroyed after a request is made based on a PB own internal view of what 'a normal course of business' means.

Problem for requester is that the ICO police themselves and are very reluctant to pursue section 77 breaches.

Any thoughts from the good people of this site how to pursue or is it best to leave the perceived injustice alone?
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Re: Section 77 FOIA

Postby Slartibartfast » Thu Jul 02, 2015 6:01 pm

Goldensyrup wrote:Complainant stated that if his judgement is lawful, a whole host of material could be destroyed after a request is made based on a PB own internal view of what 'a normal course of business' means.


There was something similar in a Police matter not long ago. They were destroying records to their normal retention process even though a disclosure application or SAR or something was underway. Clearly suggests bad faith, and should be shamed for it.

b1969 is an FOI boffin, he'll hopefully be able to fill in the blanks...
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Re: Section 77 FOIA

Postby dls » Thu Jul 02, 2015 9:08 pm

Moved - information law has its proper home here.
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Re: Section 77 FOIA

Postby atticus » Thu Jul 02, 2015 9:28 pm

Can you open a new section for Data Protection and Information Law?
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Re: Section 77 FOIA

Postby dls » Thu Jul 02, 2015 10:25 pm

Look at the heading for this section. It has been thusly in this and earlier re-incarnations.
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Re: Section 77 FOIA

Postby atticus » Fri Jul 03, 2015 8:31 am

Ah, yes, I see that when I look at the Board Index. It was just that being in the topic, all I can see at the top is "Board index ‹ Law ‹ Intellectual Property", without the sub-title.

That said, maybe a Data Protection etc sub forum would be a good idea.
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Re: Section 77 FOIA

Postby atticus » Fri Jul 03, 2015 8:58 am

I suspect that the OP has seen the ICO's Regulatory Action policy.

and this: https://ico.org.uk/for-organisations/gu ... formation/




(now waiting for b1969)
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Re: Section 77 FOIA

Postby Goldensyrup » Fri Jul 03, 2015 10:11 am

Thanks atticus. I have looked at the policy and felt in this particular situation the ICO are not in accordance with its own policy. I feel sure on s77 that they must have some internal guidance that says 'avoid at all costs if you can'.
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Re: Section 77 FOIA

Postby atticus » Fri Jul 03, 2015 10:19 am

an FOI request to the ICO?
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Re: Section 77 FOIA

Postby Goldensyrup » Fri Jul 03, 2015 10:35 am

Thanks Atticus. The request is already some weeks in the pipeline. They are known as LTT's (lines to take).
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