[originally posted 15 August 2015]
A few days ago, in Part 34, I considered the possibility that public bodies might, in their handling of FOI requests, commit a criminal offence by deliberately not releasing all the relevant information to which the applicant is entitled.
I have come across an example so apparently blatant a breach of the law that I am incredulous that no offence was committed.
How can this be?
Let me backtrack to my last post,
In Part 33 I wrote about Paul Delamore’s victory in having the Scottish Information Commissioner decide that Police Scotland should release the information he had requested.
My analysis was incomplete. I had ignored a key part of the Freedom of Information (Scotland) Act 2002 – FOISA. I hadn’t even read the relevant section. I must also say that I didn’t recognise my omission: a friend had to point this out to me.
The crucial part is Section 65
Basically this says that if an applicant is not given all the information to which he or she is entitled then, if the act is deliberate, the person responsible is guilty of a criminal offence. The highlighted paragraph lists ways in which a person may prevent full release:
alters, defaces, blocks, erases, destroys or conceals
The penalty for conviction? A fine not exceeding £5000!
My reading of this section was that if relevant information, which was known by the public body to exist, was deliberately withheld from the applicant then a crime was committed.
I suspect the actual meaning is that if a person, for example, deliberately conceals information so that it cannot be found by another public body official who is fulfilling an FOI request then a crime has been committed.
If this were the correct interpretation then, shockingly, a person who deliberately concealed the existence of information from the applicant would be guilty of no offence.
Let me tell you about Northern Constabulary deliberately concealing the existence of information from an applicant and, as far as I can see, no crime was committed.
You will not be surprised that this case involved Willie McRae and you’ll be pleased that we don’t have to delve into many details.
David Leslie and the Chief Constable of Northern Constabulary
David Leslie, a journalist, took his request in 2007 to the Scottish Information Commissioner because he was dissatisfied with the response from Northern Constabulary.
He lost on every important point, winning only the small victory of Northern Constabulary having to show him their collection of press cuttings of the case!
Mr Leslie’s request was simple but very wide-ranging,
Mr David Leslie emailed Northern Constabulary requesting all documents, reports and relevant material concerning any investigations by Northern Constabulary into the death in April 1985 of William McRae.
My reading of this is that Mr Leslie wanted to see the entire McRae file.
Northern Constabulary’s first response was,
Northern Constabulary responded, advising Mr Leslie that the information was otherwise accessible via the Northern Constabulary Publication Scheme, citing section 25(1) of the Freedom of Information (Scotland) Act 2002 (FOISA).
In 2005, Northern Constabulary released limited information – here - about which this blog is replete. They tell Mr Leslie that the released information is the entirety of the information they hold which is relevant to Mr Leslie’s request. To anyone familiar with the released information this is clearly nonsensical.
Mr Leslie, as he was due, asked Northern Constabulary to carry out an internal review. They then responded,
Northern Constabulary contacted Mr Leslie again and elaborated on the earlier response. This advised that not all the information relating to Mr Leslie's request had been disclosed and concluded by citing various exemptions to justify not releasing that information.
What was this additional information?
Northern Constabulary advised that, in addition to the information already published on the website, the following items had not yet been released:
1) Book of photographs of deceased;
2) List of thirty four witnesses and thirty two witness statements;
3) Post Mortem report;
4) Newspaper cuttings;
5) Six documents relating to the investigation.
In their first response, Northern Constabulary concealed the existence of all this information from Mr Leslie. That this was corrected during the internal review should be irrelevant: the initial concealment must have been deliberate, surely?
A crime was committed, surely?
Apparently not! The Commissioner wrote,
I find that the Chief Constable of Northern Constabulary generally complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding
[sic] the information request made by Mr Leslie.
No crime despite information being concealed initially!
How can this be?
There are two possible reasons.
One I gave earlier
I suspect the actual meaning is that if a person, for example, deliberately conceals information so that it cannot be found by another public body official who is fulfilling an FOI request then a crime has been committed.
If this were the correct interpretation then, shockingly, a person who deliberately concealed the existence of information from the applicant would be guilty of no offence.
The other possible? No crime was committed because the initial concealment was reversed by the internal review.
If either of these reasons is correct then FOISA is NOT fit for purpose …..
….. BUT that is the system we have and we’ll use it to our fullest ability.
We will not be deflected.
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© CalumCarr 2015
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