Justice CommitteeWritten evidence from David Holland

Executive Summary

1. “Freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated”.
United Nations Resolution 59, 1946

2. The United Kingdom was among the last of the developed nations to embrace Freedom of Information in its law. Despite this, and the criticisms that will be presented here, the British legislation may be the most effective in the world available today in those cases where public authorities are committed to openness and transparency and what is requested is not controversial.

3. My experience has been mixed. Mostly my requests have been “resisted” by a collaborative network of individuals; and cogent prima facie evidence suggests that a significant number of hitherto highly respected individuals jointly blocked disclosure contrary to section 77 and regulation 19.

Does the FOIA work effectively?

What are the strengths and weaknesses of the FOIA?

Is the FOIA operating in the way that it was intended to?

4. The answer to the first and third question is “not entirely” because of, firstly weaknesses in enforcement of the legislation and secondly the disparity in authority between the senior public authority employees who might prefer not to disclose information and their information officers who generally seek to apply the law correctly.

5. The greatest strength of the FOIA is that information requests are free. So is the appeal process to the First Tier Tribunal outside Scotland. The lack of a free Tribunal service diminishes the FOISA and EISR.

6. My experience relates mostly to the EIRs. In paragraph 30 of their memorandum to the Committee, the Lord Chancellor and Secretary of State for Justice note that the FOIA was intended to implement the information provisions of the Aarhus Convention. In this respect FOIA is deficient, and fails to work as it should.

Personal Information

7. I hold a Degree in Electrical Engineering and, though now retired, spent most of my working life in the computer industry. My acquaintance with FOIA has been more by accident than design and arose through an interest in climate change and the Intergovernmental Panel on Climate Change (IPCC).

8. Despite the internationally agreed “Principles Governing IPCC Work”1 requiring assessments to be undertaken on a “comprehensive, objective, open and transparent basis”, I discovered that they were selective, partisan, secretive and opaque, and that the IPCC’s specific disclosure rules were consistently flouted2. Even worse, leading scientists involved in the ongoing current assessment have recently, with the acquiescence of DECC officials, tricked the IPCC into deciding that its assessment process is an international official secret without first publishing their intentions.

Defects of the Legislation

Classification of Information

9. In many cases environmental information is willingly released under the FOIA and recorded as such leading to a tendency to discount the EIRs and under-represent them in training and publicity. In my experience3 public authorities routinely fail to classify environmental information correctly because it gives them greater opportunities to refuse its disclosure and delay any reconsideration of their refusal. Section 39 of the FOIA should be made an absolute exemption.

10. Greater stress should be put upon classification in the DCA code of practice on the FOIA, and a reference to section 39 should be added to section 1(2) of the Act. However, the best and most progressive solution would be to unify the EIRs and the FOIA. This would greatly reduce cost, regulation, confusion and deliberate delay. It is perverse that the most insignificant of environmental information should be subject to the presumption of disclosure and more limited exceptions to disclosure than information that is not environmental but of the greatest public interest.

Classification of Public Authorities

11. The BBC and Ch4, benefit greatly from the EIRs as applicants, but exempt themselves from them, relying upon a drafting defect. The EIRs, define the public authorities to which they apply through section 3(1) of the FOIA which in turn refers to its Schedule 1. In this the BBC and CH4 are listed as public authorities only “in respect of information held for purposes other than those of journalism, art or literature.” This absolute exemption under the FOIA, is routinely abused and ought to be replaced by a standard exception subject to the public interest test.

12. Regulation 2(2)(b)(i) excludes “any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description”. The BBC and Ch4 interpret this to mean that they are entirely excluded from the EIRs. It must be a drafting error or a misinterpretation, since there is no exemption for them in the Aarhus Convention. Given that Directive 2003/4/EC requires the law to be consistent with the Aarhus Convention the proper course is to repeal regulation 2(2)(b)(i) and leave the BBC and Ch4 to rely upon the exceptions in regulations 12(1)(b) and 12(4)(b).

Permanent Unlawful Prevention of Disclosure

13. The most serious limitation of the FOIA and the EIRs is the ease with which lawful disclosure can be permanently prevented, arising in part from the Commissioner’s interpretation of regulation 19 and section 77, which have similar wording.

14. “Where a request for environmental information has been made to a public authority [etc] and the applicant would have been entitled to that information [etc] a 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 which the applicant would have been entitled”.

15. Despite both regulation 19 and section 77 beginning with the words “Where” rather than “When” and using the more complex tense “would have been” instead of “was”, the Commissioner has stated4 that it is the timing of the action being after the request which creates the offence. If the courts sustain this interpretation it makes it almost impossible to prove an offence, as it is most unlikely that both the timing and the intention can be proved.

16. The argument that an apparently lawful act should not become an offence retrospectively is without merit since in many other cases both the offence and the intention only become known at a later time. The 6-month time limit for prosecutions under regulation 19 and section 77 was highlighted by the Commissioner5 in relation the deletion of information that I had just requested from the UEA. Clearly, it should be a reasonable time, such as 6 months, from the discovery of the offence rather than its commission, possibly limited by a longer period of time elapsed since the offence.

17. In law, regulation 19 must be consistent with the Aarhus Convention, in which the United Kingdom undertook in Article 5(1) “to ensure that public authorities possess and update environmental information which is relevant to their functions”. This places a clear duty upon public authorities both to acquire and to retain the environmental information that is relevant to their functions. Aarhus Article 5(1) therefore requires a strict records management policy to ensure that environmental information, which is still relevant, is not permanently deleted.

18. To meet our Aarhus obligations, it must be a regulation 19 offence to permanently delete or conceal environmental information, which is still relevant, if the intention is that future applicants should not be able to receive it. Further it is not in the public interest that employees of any public authority should be allowed, in law, to delete any information that they might reasonably expect an applicant to request in the foreseeable future.

Lawful Delay

19. Information disclosure delayed can be as bad as disclosure denied. In the case of the FOIA there is no statutory time limit for reconsideration of a refusal, but section 50 requires the applicant to exhaust a public authority’s complaint procedure. A section similar to regulation 11 ought to be added to the FOIA.

20. However, a regulation 11 reconsideration can lawfully take 40 working days and even if the applicant had responded immediately to a refusal the outcome can be delayed 12 weeks. Complaints to the Commissioner are rarely decided any sooner. Thus DECC refused to publish a controversial procedural proposal until after it was decided by the IPCC and published. This deprived the public of their Aarhus Convention rights and rendered any complaint on regulation 5 pointless.

21. Public authorities suffer no penalty from using specious excuses, as a means of delaying disclosure until the purpose for which it was requested has perished. Where a request for environmental information is time critical an applicant should be able to refer the matter immediately to the Commissioner for an urgent decision, in the public interest.

Personal Information

22. The redaction of personal information is routinely undertaken where it is greatly in the public interest that it should not be. While it is right, for instance that an MP’s full address should not be published, sufficient information should be disclosed to enable the applicant for it to know if matters relating to it are being dealt with in conformance with Parliamentary rules and the law.

23. The names of professionals who actively court publicity for some matters should not be redacted from information that is disclosed, but which shows them in a poorer light or contradicts other published information relating to matters in which they are content to be named.

Proactive Disclosure

24. In his evidence to the Commons Science and Technology Committee (STC) investigating Climategate, the previous Information Commissioner, Richard Thomas CBE said

“Public authorities ought to decide what really has to be kept away from the public. If it is particularly sensitive or there is a good reason for withholding it, fair enough, but where there is no good reason for withholding information, then why not proactively disclose it and avoid the hassle of large numbers of requests?”

25. I know of no public authority which embraces Mr Thomas’ advice. The FOIA and the DCA code of practice are so woolly on the matter that there is no prospect that it will improve in respect of the FOIA without legislative changes.

26. Conformance with regulation 4 is no better, despite the fact that it is a mandatory requirement and is fundamental the public’s rights guaranteed by the Aarhus Convention. One reason for what amounts to universal non-conformance with regulation 4 is the opinion of the Commissioner, that he has no powers to issue a decision notice under section 50 because no request has been made by the complainant.

27. This is an error that I am challenging at the First Tier Tribunal. The “electronic means which are easily accessible” required by regulation 4 can only be accessed by applicants for information making requests. The fact that they must do so electronically should not remove their Aarhus rights to justice. Further, regulation 4 is subject to exactly the same exceptions as regulation 5 which the ICO does enforce. Enforcement of regulation 4 is in the public interest and in the long term will save costs.

28. Regulation 4 requires public authorities to progressively make environmental information available to the public by electronic means, which are easily accessible, and to take reasonable steps to organise the information relevant to its functions with a view to the active and systematic dissemination to the public of the information.

29. It is difficult to imagine how any public authority can achieve conformance with regulation 4 without an easily identifiable link on its Internet “home page” rather like a “CEOP button”. It has become very common for home pages to have easily accessible links to “Privacy Policy” and “Contact Us”. Public Authorities should be encouraged, if not required, perhaps through the DCA codes of practice, to have a standardised “Publication Scheme button”. I know of no valid regulation 4 publication scheme.

Case Study

30. This submission results from attempts that I began in 2007 to obtain information on the IPCC’s 2007 Fourth Assessment Report (AR4), from the Met Office6, the UEA and the University of Reading. Since 1993 by international agreement the IPCC assessment process has been required to be open and transparent. In 2002 Sir John Houghton had published a paper asserting that it was so7. Ministers have repeatedly stated that it is. In the public interest, it must be.

31. However, in each case senior employees unlawfully refused to disclose any information whatever, and obstructed less senior Information Officers. They did so on the advice8 of the American scientist who was a Co-Chair of IPCC Working Group One (WGI), which had assessed the physical basis of climate change.

32. On 27 May 2008 I made a formal information request to the Climatic Research Unit (CRU) of the UEA. It was only the sixth ever received by the CRU. It was refused and referred to the Commissioner. My efforts were widely reported on the Internet9 as were later requests from others that were also refused.

33. Nothing at all happened until what has become known as “Climategate”, in November 2009, when 1073 files of emails from the CRU were released. In one10, dated 29 May 2008, the CRU Director asked an American to delete his copies of what I just requested and ensure that another did the same. The Director said two of his CRU colleagues would also do the same.

34. Despite having avoided disclosing information for years, Climategate emails11 show that the CRU Director was lobbying for the IPCC to take steps to assist him in resisting FOIA/EIR requests by changing IPCC’s assessment process to be confidential—in total contradiction with the 1993 Principle that it should be open and transparent.

35. Climategate caused great concern globally over the integrity of the IPCC assessment process. The UEA established the so-called “Independent” Climate Change Email Review (ICCER) that many considered to be a whitewash from its inception. Graham Stringer MP later called it a parody.

36. The ICCER held no public hearing and refused to publish my evidence submission to it. At the second hearing into the matter by the STC, Sir Muir Russell, referring to my submission told MPs “The team went into that pretty carefully.” However, a few weeks later, responding to a freedom of information request, the UEA confirmed12 that, although it had surreptitiously acquired a copy of my full evidence submission13, it only responded to an unpublished short, mutilated and anonymised version14 supplied by the ICCER from which key evidence15 as well as most formatting and footnotes references were omitted.

37. UEA admitted that it had used the format and footnotes of my original submission in its response in order to make it appear that it had been fully considered in its original form. The ICCER had then published UEA’s response16 enabling it to mislead the public and the STC. The ICCER had concluded, untruthfully, that it had seen no evidence17 of any attempt to delete information in respect of a request already made.

38. The largest part of the work of ICCER was undertaken at the University of Edinburgh whose computers systems held copies of most of the ICCER records. These were deleted18 from the University’s servers just days after the ICCER Report was published and long before the above mention facts were revealed. The ICCER records are now in an undisclosed location unavailable to the public under the FOIA/EIR.

39. In November 2011, further emails from the UEA were leaked including 3548.txt19 dated 9 May 2008, a few days after my first formal information request to the UEA. The CRU Director reported my request to 23 of his international IPCC colleagues and was urging that the IPCC take steps to prevent similar requests on subsequent assessments.

40. In 2526.txt20 dated 4 June 2008 the CRU Director told the Met Office that the information that I had recently requested from his two colleagues at the CRU had been moved from the CRU computers onto a memory stick. This fact was not reported by the ICCER which had spent £9,00021 to have access to this email and all the other emails of the CRU Director, 54 days before its Report was published.

41. Following the original Climategate release in 2009 and the debacle of COP15, the “Glaciergate” 203522 error spurred the UN Secretary General into asking the InterAcademy Council (IAC) to review23 IPCC Procedures. The IPCC 2010 Plenary Session established a task group to advise the IPCC on changes to the procedures as advised by the IAC. Its Report would be considered at the May 2011 IPCC Plenary Session.

42. On 25 February 2011 I made requests of DECC for information as to what was being proposed for agreement at the IPCC Session in May. Despite the proximity of the meeting neither the IPCC nor DECC had indicated publicly what decisions were being proposed by the task group. My requests were refused, but a complaint to the Commissioner was then too late.

43. Between 10–13 May, in blatant contradiction of Aarhus Article 3(7), and without any discussion or vote24 the British Government’s delegate accepted the 18 proposed changes contained in the task group’s 21 page Report25. In the Report’s preamble it claims them all to be the result of consideration of the IAC Report plus IPCC decisions from the previous session. The date stamp of the published document is 12 May although DECC must have had a copy earlier. Clearly it should have proactively published it under regulation 4(3)(a) and (b) and disclosed it to me under regulation 5.

44. Smuggled into what was represented as IAC recommendations is a confidentiality rule which neither the IAC nor the previous IPCC Plenary Session had put forward for consideration. It is what the CRU Director had first urged upon his fellow IPCC colleagues in May 2008. It is now being used in an attempt to frustrate FOIA/EIR requests and all open discussion on the Internet of the IPCC draft documents.

January 2012

1 http://www.ipcc.ch/pdf/ipcc-principles/ipcc-principles.pdf

2 http://www.ventalize.org.uk/Papers/Holland_2007.pdf

3 FS50242937 Ofcom; FER0238017 University of East Anglia.

4 Personal Communication.

5 FER0238017 University of East Anglia.

6 Abbot J. and J. Marohasy, 2010: Accessing environmental information relating to climate change: a case study under UK freedom of information legislation. Environmental Law and Management, Volume 22, Issue 1, Pages 3- 12.

7 See section 5 page 5-6

8 http://tinyurl.com/bwehxxu

9 http://climateaudit.org/2008/06/

10 http://junksciencearchive.com/FOIA/mail/1212063122.txt

11 http://junksciencearchive.com/FOIA/mail/1242136391.txt and ibid 1249045162.txt

12 http://tinyurl.com/5uet222

13 http://tinyurl.com/2656ppl

14 http://tinyurl.com/35flw4j

15 Note, for instance, my paragraph 44 is omitted and see http://tinyurl.com/374ncm4

16 http://www.cce-review.org/evidence/6%20May%20Briffa%20Osborn%20response.pdf

17 See paragraph 28 on page 92 http://www.cce-review.org/pdf/FINAL%20REPORT.pdf

18 http://www.itspublicknowledge.info/UploadedFiles/Decision176-2011.pdf

19 http://di2.nu/foia/foia2011/mail/3548.txt

20 http://di2.nu/foia/foia2011/mail/2526.txt

21 http://tinyurl.com/7vbt6fh

22 http://www.thegwpf.org/international-news/459-new-documents-show-ipcc-ignored-doubts-about-himalayan-glacier-scare.html

23 http://reviewipcc.interacademycouncil.net/committee.html

24 http://tinyurl.com/73owoqx

25 http://www.ipcc.ch/meetings/session33/doc12_p33_review_tg_proposal_procedures.pdf

Prepared 25th July 2012