Q56 Chairman: We welcome in our second panel, seamlessly, Richard Thomas, the former Information Commissioner. Thank you very much indeed for joining us this afternoon. You recommended that the Freedom of Information Act 2000 should be amended so that a prosecution could be brought within six months of evidence of the offence coming to the attention of the Commissioner’s knowledge. We have heard reference to this in the previous panel. Why do you consider that such a change should be made?An uncorrected transcript of the evidence is available here.
Mr Thomas: Thank you for your welcome, Chairman. I am happy to assist the Committee to the best of my ability. If I could answer your question in context, I have put a written submission to the Committee which, I think, is on your website. I set out that I might be able to help you with the rationales and the policy objectives of the legislation and its application in practice. I have outlined how the Act works and its application in general and in particular. This situation we are dealing with now may well engage the Environmental Information Regulations as much as the Freedom of Information Act, but they are broadly similar, with some important differences. I concluded my submission to you by making three suggestions. One was that the six-month limit for criminal prosecution under section 77 should be changed. That was your question. Secondly, I made some suggestions in relation to the Muir Russell review and, thirdly, suggested there might be more proactive disclosure of publicly funded research. On the question of the six-month limit, I set out in my memorandum at section 77 of the Act and the corresponding regulation 19 in the Environmental Information Regulations the only part with a criminal sanction and, in my view, a very important part of legislation, designed to prevent the destruction, the alteration, the suppression of information once a request has been made, but I set out in my submission there are three really quite key issues here. First of all, it is only information to which the applicant is entitled; so it is only if none of the exemptions, for example, apply and information would have been discloseable under the legislation that the offence is committed; secondly, there has to be the intention of preventing disclosure under the legislation, and proving intent in this situation is always going to be difficult; and, thirdly, because of the interaction with the Magistrates Court Act, any prosecution must be brought within six months of the offence being committed, and I think it is that which perhaps caught the public’s attention towards the end of January, that latter part; but I made the point in my submission that this is not a new issue, in fact, it surfaced during a debate on the Coroners and Justice Bill in 2009 when certain amendments to information laws were being made at that time, and I outline in my submission how Lord Dubs had tabled an amendment in the House of Lords during the course of the consideration of that Bill proposing that, as in other areas of regulatory life, the six-month limit should be changed so that it is when it comes to the attention of the Commissioner, or the prosecutor. The Commissioner is the prosecutor in this particular case.
Q70 Ian Stewart: That leads me to my next question. It is quite clear from the email exchanges that these scientists were exasperated. Their argument was that they just wanted to get on with their job, and one of the plaintiffs says that he did not want to deal with the hassle, he just wanted to do his job. Do you have any sympathy with the exasperations of scientists at CRU?
Mr Thomas: I think one can understand what I might call the human dimension of this, and sympathy is not the right word in this context, but I can understand perhaps why people sometimes felt exasperated. We came across public authorities in Whitehall, local authorities up and down the country with this sense of exasperation and being on the receiving end of large numbers of quite difficult cases. There is doubt about that; I can see that. At the same time, the legislation is there - there is the right to know - and in many cases the simplest approach, particularly where requests tend to generate either a defensive attitude or place a great burden on the public authority, is proactive disclosure in the first place. I often use what I call the Crown Jewels approach. 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?
Q71 Ian Stewart: We now understand the impact of hassle, as it was put by one of the correspondents.
Mr Thomas: Can I add one comment, if I you do not mind, Mr Stewart. I do not think that hassle, or whatever word we are going to use, justifies the deliberate destruction of requested information.
Q72 Ian Stewart: Can you let me ask the question and then you may come to it: because that is at the heart of the next part of the question that I want to ask you. Do you consider that what we have seen at CRU is muddle, irritation under pressure, rather than the intention to breach the Act?
Mr Thomas: I simply do not have nearly enough inside information; I have no inside information, I cannot answer that question. All that I can say is that some of the material that has surfaced in the media and elsewhere, where phrases like "hiding behind" or "please delete this particular email" to any Commissioner – myself when I was Commissioner, to the current Commissioner – is something which prima facie needs investigation because that section 77, which we discussed earlier, is a very important part of the Act. When it first came into force there were many headlines, "The shredding machines at Whitehall are working day and night". We asked for allegations to come forward; none came forward at all. It is a very serious part of the Act, virtually every public authority stresses to its staff "Do not destroy information when it has been deleted." I make no allegations whatsoever against the university; all I am saying is that in some of the emails that have surfaced there is prima facie evidence which I think would have required investigation had it not been for the six month limit.
The memorandum submitted to the Committee by Richard Thomas is here.