The Telegraph's Christopher Booker Probably Doesn't Have a Clue

Yesterday, I posted an article that expressed skepticism about the accuracy of a report about the "Climategate" scandal that appeared in the British Telegraph (1-28-10) and about the accuracy of legal opinions that the Telegraph and other media attributed to Graham Smith, Deputy Commissioner at the Information Commissioner's Office (ICO).

The Telegraph (1-28-10) claims that "the Information Commissioner's office ruled that UEA was in breach of the Freedom of Information Act," but that the the ICO "was unable to prosecute the people involved" because it was more than "six months after a breach of the act."

These allegations are being widely reported in the media but do not appear on the official ICO site. In addition, my understanding is that people would not be prosecuted in this case; the University would be fined. It is strange that a Deputy Commissioner for the ICO would claim that people would be prosecuted in this case. Also, it is doubtful that the ICO can rule on something after the statute of limitations expires.

The Telegraph's newest account of the Climategate scandal, "Climategate: confusion over the law in email case" (Christopher Booker, 1-30-10), gets even stranger; but read my previous post first.

Reporter Christopher Booker misspells the name of the ICO's Deputy Commissioner Graham Smith as Gordon Smith. This does not make me confident of his legal analysis. Indeed, a poster named David Welch quotes from the Scottish ICO site in the comments that follow the article in order to correct Brooker's legal analysis. The Scotts reportedly have very similar regulations.

The Telegraph's (1-30-10) Christopher Booker opines:

There is something very odd indeed about the statement by the Information Commission on its investigation into "Climategate", the leak of emails from East Anglia's Climatic Research Unit. Gordon [ie Graham] Smith, the deputy commissioner, confirms that the university's refusal to answer legitimate inquiries made in 2007 and 2008 was an offence under S.77 of the Information Act. But he goes on to claim that the Commission is powerless to bring charges, thanks to a loophole in the law – "because the legislation requires action within six months of the offence taking place".

Careful examination of the Act, however, shows that it says nothing whatever about a time limit. The Commission appears to be trying to confuse this with a provision of the Magistrates Act, that charges for an offence cannot be brought more than six months after it has been drawn to the authorities' attention – not after it was committed. In this case, the Commission only became aware of the offence two months ago when the emails were leaked – showing that the small group of British and American scientists at the top of the IPCC were discussing with each other and with the university ways to break the law, not least by destroying evidence, an offence in itself.

The Commission is thus impaled on a hook of its own devising. By admitting that serious offences were committed, it is now legally obliged to bring charges. And if these were brought under the 1977 Criminal Law Act, alleging that the offences amounted to a conspiracy to defy the law, there is no time limit anyway. [See full text.]

First of all, the remarks attributed to IOC official Smith are not posted on the ICO website, so we only have the media's account/interpretation of what Gordon, or rather Graham Smith reportedly said.

Secondly, a commenter disputes Christopher Brooker's legal analysis. Commenter David Welsh writes:

This may explain.

""If you are dissatisfied with how your request for a review has been dealt with, then you are entitled to ask the Scottish Information Commissioner to investigate your case. You must ask the Scottish Information Commissioner no later than 6 months after the date of receipt by you of the notice or decision you are dissatisfied with or within 6 months of the expiry of the period of 20 working days from receipt by the Council of your request for review. Your should write to:

The Scottish Information Commissioner Kinburn Castle Doubledykes Road St Andrews Fife KY16 9DS"".

Maybe Christopher was tired this week, or else he could have found a proper explanation.

The British people have a long tradition of respect for justice and fairness. It seems odd to me that the Deputy Commissioner, who sees a case after it is "too late," would allege in the media that ICO had ruled that the EAU had breached the law and not post the information on the IOC site. This leaves EAU with no means of responding to the charge by appealing to the IOC or to a court.

Christopher Booker doesn't really even explain precicely what laws the EAU allegedly ruled had been breached. He also does not wonder why the ICO would rule after it was "too late."

Mr. Brooker says there is "confusion over the law." I don't see any law here at all. All I see are unsubstantiated allegations in the newspapers purportedly made by ICO Deputy Commissioner Graham Smith.