FOI and Subject Access Request Misconduct

The FOI Man blog has reported on the first prosecution by the Information Commissioner (ICO) under section 77 of the Freedom of Information Act 2000. This provides that where a public authority has received a request for information it is a criminal offence for a person to alter that information with intent to prevent disclosure.

In this case a requester asked for disclosure of an audio recording of a local council meeting because they did not think the minutes were accurate. A council officer, in order to prevent disclosure, deleted the recording. As a result the town clerk, Nicola Young, has now been convicted of a criminal offence.

A similar offence applies under the Data Protection Act 2018. Under section 173 any alteration or destruction of records to prevent disclosure is a criminal offence.

Increasingly FOI requests are an important tool for union representatives who represent workers in public authorities. Perhaps even more so the use of Subject Access Requests in disciplinary and grievance situations is often a useful tool but the common – and completely understandable – concern is that an employer will destroy any incriminating material. In these contexts it is helpful to be alert to the fact that if there is any evidence that information is being deleted so as to prevent disclosure may amount to criminal conduct for which a complaint can be made to the ICO, as the relevant regulator and prosecution authority.

 

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