Justice CommitteeWritten evidence from Andrew Montford

Executive Summary

It is clear that section 77 breaches of the Act cannot be prosecuted. An amendment to the legislation is required to make such breaches possible.

Concerted attempts have been made by some civil servants to avoid compliance by using private email accounts and other media. This must be prevented.

Attempts by prominent scientists to make certain scientific information exempt are misguided and against the public interest.

The scope of the BBC’s journalistic purposes derogation needs to be clarified so that it protects sources but allows public oversight of the BBC’s internal processes.

The appeal process works well, but is hampered by delays at the ICO’s office. Funding of the ICO should therefore be addressed.

About the Author

Andrew Montford is the author of The Hockey Stick Illusion, a history of some of the events leading up to Climategate. He is currently writing a history of the Climategate affair itself and the inquiries that followed. He is a regular user of the Freedom of Information Act and the Environmental Information Regulations. He has no conflicts of interest to disclose.

Introduction

1. I write as a regular user of FOI legislation. I believe that the Act is in general working well and in the public interest. It has made many civil servants very uncomfortable and there have been many documented attempts to resist the requirements of the Act. I believe that the committee should resist the inevitable attempts to push back and restrict the scope of the Act or to make it more costly to submit requests.

2. There are, however, several flaws in the legislation, which I will cover in more detail.

Section 77 and the Statute of Limitations

3. I am currently writing a history of the Climategate affair. As the ICO made clear at the time of his investigation of the events at the University of East Anglia (UEA), there is compelling prima facie evidence that FOI offences took place at UEA during 2008. Since that time a further release of UEA emails has provided evidence that is incontrovertible.

4. The ICO was unable to prosecute because of the six-month statute of limitations in magistrate’s courts. With time inevitably elapsing between an offence and its discovery and with ICO investigations taking up to a year to complete, prosecutions under the FOI Act are in essence impossible.

5. This failing in the legislation was raised as a potential problem during the original passage of the FOI Bill through Parliament and an amendment was tabled to extend the period for prosecution. This, however, was blocked by ministers, who claimed that there was no evidence that it was “a systemic problem for the Information Commissioner or any other prosecutor”. It is now clear that this is not the case.

6. The inability to prosecute breaches of the Act has had a deleterious effect on civil servants’ attitudes to FOI compliance. I was told by an official in the ICO’s office that some public authorities do not take the Act very seriously.

7. The Act should be amended to extend the period for prosecutions to take place.

Attempts to Avoid Compliance

8. The Climategate emails reveal considerable evidence of scientists using private email accounts for public business. In particular, the correspondence of Professor Martin Parry and Sir John Houghton on the reports of the Intergovernmental Panel on Climate Change (IPCC) was conducted on private emails. Although the ICO has advised that such emails still remain subject to FOI, there will inevitably be difficulties in obtaining them. I recently requested Sir John Houghton’s IPCC emails and was told that neither he nor the Met Office still had these. In other words important—in fact historic—public records have been lost.

9. It was recently reported that for the IPCC’s Fifth Assessment Report private discussion forums have been set up to enable scientists to discuss the report without being subject to national FOI legislation. If true, it represents a deliberate attempt by an international organisation to thwart the will of Parliament.1

10. Legislation is required to make it a criminal offence for public servants to conduct public business through any medium that is not public or subject to FOI.

Duty to Hold Information

11. The UK’s obligations under the Aarhus Convention appear to require public bodies to hold information relevant to their functions. Despite this, public bodies involved in environmental matters routinely delete their correspondence as part of their regular maintenance of systems. The Environmental Information Regulations do not appear to outlaw such actions, but the committee may wish to examine whether this means that the UK is in breach of its convention obligations and of the related EU directive.

Scientific Information

12. As a result of the attempts to uncover malfeasance at the University of East Anglia, there has been a concerted campaign of misinformation about what happened:

it was said that there was a deluge of requests to the university, a claim that the former ICO, Richard Thomas, said was false; and

it has been claimed that attempts have been made to obtain draft materials from scientists—there is no evidence that this has ever actually happened.

13. Recently in the House of Lords, an amendment was recently tabled that claimed to seek to bring the FOI Act into line with its equivalent in Scotland. In Scotland, information that is part of a research project is exempt if the findings will be published in future, and if disclosure under FOI would damage the interests of the researcher or their institution. The wording of the Scottish Act appears to put the interests of the researcher ahead of those of the public. Publicly funded researchers must accept public oversight in return for the funding they receive. There is little evidence that the Westminster Act as currently worded is deficient in this area.

The BBC

14. Considerable difficulties are encountered in obtaining information from the BBC under FOI because the derogation from the Act for information held for artistic and journalistic purposes. The derogation is worded very vaguely and its scope is currently the subject of a protracted appeal, which is currently being considered by the Supreme Court.

15. While there would no doubt be wide support for the idea that there is a need for journalists to protect their sources, the BBC’s attempts to put a very broad interpretation on the derogation are against the public interest. In particular, the editorial standards and policies adopted by the BBC should be open to scrutiny.

16. In addition, the BBC appears to be exempt from the Environmental Information Regulations, to the extent that information is held for artistic and journalistic purposes. Since EIR is a response to a EU directive, the scope of the BBC’s exemption may put the UK in breach of the directive and the committee may wish to consider this possibility.

The Information Commissioner

17. I think it is fair to say that the Information Commissioner’s office is held in high esteem by users of FOI legislation. There are, however, frustrations in the delays that are encountered in getting rulings. This is seen as a function of a lack of funding, and the committee should consider calling funding to be increased.

The Information Tribunal

18. I have only limited experience of the Information Tribunal—I have a single case ongoing at the moment. My experience has, however, been good so far, with the process simple and readily accessible. It is perhaps notable that the situation in Scotland is said to be considerably worse, with a highly bureaucratic process and applications actively discouraged by the Court of Session.

February 2012

1 http://cei.org/sites/default/files/Christopher%20Horner%20-%20OSTP%20FOIA%20Request.pdf

Prepared 25th July 2012