Section 77 of the Freedom of Information Act 2000 (FOI) makes it a criminal offence for a person to do anything with the intention of preventing the disclosure of information pursuant to an FOI request. The offence can be committed by any public authority and any person who is employed by, is an officer of, or is subject to the direction of a public authority. Regulation 19 of the Environmental Information Regulations 2004 creates an identical offence, albeit with slightly different provisions governing government departments.
Last week the trial begun of the former Chief Executive of Mid and East Antrim Borough Council who has been charged with three offences relating to records kept by the council. Anne Donaghy faces three charges under section 77 FOI namely; altering a record to prevent disclosure, attempting to alter records, aiding and abetting the alteration of a record. Ms Donaghy denies the allegations and is contesting the charges.
A BBC Spotlight programme previously reported that the charges were connected to alleged attempts to delete correspondence relating to the decision to withdraw council staff operating under the post-Brexit trade conditions known as the Northern Ireland Protocol. The staff, who were carrying out checks on goods arriving from Great Britain, were removed because of apparent threats from loyalist paramilitaries.
It later emerged Ms Donaghy, who was chief executive at the time, had written to the Cabinet Office before the decision to remove staff was taken. She told the UK government graffiti had been directly targeting council staff working on checks.
The then Agriculture Minister, Edwin Poots, subsequently withdrew inspectors performing the checks at ports in Northern Ireland. However, shortly after, all staff had returned to duties. The Police Service of Northern Ireland (PSNI) issued a threat assessment stating it had no information to support claims of loyalist paramilitaries threatening staff safety.
Prosecutions under section 77 are extremely rare. The main reason for this is that there must be proof (‘beyond reasonable doubt’) of intent to destroy, conceal, deface etc. This may be difficult to do after the event.
The only other section 77 prosecution was in March 2020. Nicola Young, a town clerk at Whitchurch Town Council, was fined £400 and ordered to pay £1,493 costs following a guilty plea. The facts of the case are that a person had made an FOI request to the Council for a copy of an audio recording of a council meeting.
They believed that the written minutes of the meeting had been fabricated and so they wanted to listen to the recording of the meeting. Ms Young deliberately deleted the audio recording a few days later and then advised the requestor that the audio file had been deleted as part of the council’s destruction policy.
This and other FOI developments will be discussed in our forthcoming FOI workshops . If you are looking for a qualification in freedom of information, our FOI Practitioner Certificate is ideal.
