openDemocracyUK

Freedom of information and the aftermath of climategate

Thomas Ash
16 February 2010

OurKingdom readers may recall the 'climategate' scandal that erupted last November after a hacker broke into servers at the University of East Anglia and leaked e-mails and data from its influential Climate Research Unit. We commisioned articles on the story from Brian Davey and Rupert Read - both defended climate science from its newly confident critics, but acknowledged that serious wrongdoing on the part of CRU scientists had been exposed too. The worst example of this, in my opinion, was their deletion of messages and data to thwart requests made under the Freedom of Information Act by retired engineer and climate change sceptic David Holland.

The Information Commissioner's Office recently announced that though this was a breach of the law, the statutory timeframe for a prosecution has now passed. This is only the most recent example of an important weakness of the Freedom of Information Act: in relegating such prosecutions to magistrate's courts alongside those for parking fines it required that they be prosecuted within six months or not at all. That may make sense when it comes to prosecuting parking fines, but, as the Campaign for Freedom of Information reported in July 2009, it is not sufficient time to deal with complaints made to the ICO, as this takes on average eight months to begin an investigation. What is more, it allows authorities to evade FOI requests through a variety of delaying tactics, such as prolonging their internal reviews in response to requests, which must be completed before complaints can even be lodged with the ICO. It doesn't take a lawyer to spot the loopholes in our freedom of information regime.

This pessimistic picture may appear to be belied by Ministry of Justice's rosy statistics on the speed with which FOI requests are dealt. However, as the Campaign for Freedom of Information pointed out in response to a request for comment from the UK Statistics Authority, these statistics are achieved by sleight of hand. They lump all lengthy public interest extensions and internal reviews into the broad categories of 'over 40 days' and 'over 60 days' respectively, comprising around twenty per cent of all cases. As I have described, many such cases involve far longer delays which allow FOI requests to be evaded. An internal review by the National Offender Management Service, for example, took over two years.

Worst of all, the most recently published statistics cover requests made during 2008 whose outcome was known by February 2009, excluded some of the most heavily delayed cases, the outcomes of which were not even known by then. Potentially these include requests made in January 2008 and still not answered by February 2009. As Maurice Frankel of the Campaign for Freedom of Information tellingly observes, "a bizarre consequence is that an apparent improvement in the statistics could be achieved by increasing the number of cases that are so badly delayed that they are not included in the statistics at all."

The lesson here is that though our freedom of information regime is a real improvement on what came before, and has often been put to good use, it is not complete, and some authorities are finding ways around it even as it becomes better established. Complete and pure freedom of information may indeed be an impossible goal, and the frustration evident in some of the hacked CRU e-mails at what was perceived as harassment-by-FOI-request is to some extent understandable (although this is of course no excuse for the crime of destroying the relevant data). However, no one could convincingly claim that we currently have too much disclosure, and the work of the Campaign for Freedom of Information and others in defending and expanding our FOI rights is invaluable.

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