A criminal offence

Published: Wednesday, 10 April 2024

UNDER Section 77 of the Freedom of Information Act it is an criminal offence to conceal information with the intention of preventing disclosure.

Upon conviction, a person or authority may be subject to an unlimited fine.

Following on from the narrowboatworld exclusive 'Boating to become unaffordable', Allan Richards explains why Canal & River Trust (CaRT) has been reported to the Information Commissioner for criminal investigation under Section 77 of the Freedom of Information Act 2000.

A simple request

CaRT has always maintained that independent consultants DJS Research provided a single report for its 2023 boat licence consultation.

However, various references to a 'final report' and 'full report' in board papers, together with disclosures under the Freedom of Information Act led to a suspicion that more than one version of the DJS Research report existed.

A simple request was made:

'I refer to your DJS Research report' ...

The report reads:

'This FINAL REPORT is based on the 8,479 responses to the survey, received between 15th February and 6th April 2023.

Please provide a copy of all previous reports.'

Information not held

Responding for CaRT by letter, S. Raven, Information Governance Advisor, Legal & Governance, wrote:

'In response to your request, I can confirm that DJS provided no previous reports to the Trust. Accordingly, the Trust does not hold the information requested'.

Request for internal review

Unconvinced by CART's response, a request was made for CaRT to review its claim that it only held one version of the DJS Report. In doing so, CaRT were referred to a report made by an executive to the May 2023 Board Meeting which, again, mentioned a 'FINAL REPORT:

'12.1 Licensing—The boat licence consultation closed on 6 April. 8,440 responses were received (approximately 25% of licence holders). DJS Research are now analysing the results and preparing the FINAL REPORT for the Executive to consider along with licence charging proposals following the consultation.'

Information not held again

A review carried out by M. Brodnicki, Information Governance Assistant, Legal & Governance Services, resulted in a letter saying :

'I am in agreement with S. Raven’s response that was sent to you on 20/02/2024. I can confirm that DJS provided no previous reports to the Trust. Accordingly, the Trust does not hold the information requested.

'Final' does not always mean there are other versions. It may be that DJS have produced other versions, but the pertinent point is we have only been sent what has been described as the 'final report'. For the avoidance of doubt, whether any previous versions exist, they have not been sent to us.

Very deliberately withheld information

A deep suspicion continued. It was thought that CaRT had very deliberately concealed information twice to prevent disclosure although no actual evidence could be produced.

However, a month after the Brodnicki response, a previous report was discovered by chance. The DJS Research report provided by two senior executives to CaRT's board in July 2023 was different to the later report made public. Four slides (or pages) had been removed from the 'secret' board report to produce the report that was later made public.

... and removing those four slides was critical to boater acceptance of above licence fee inflation increases and surcharging.

Information removed included:

♦ Two thirds of boaters are concerned about the increasing cost of boating

Only half of boaters think it reasonable for CaRT to increase licence fees

Less than 40% of boaters agree that the current (i.e. spring 2023) licence fee represents good value for money

Asked for an explanation

Rather than refer the matter to the Information Commissioner immediately, CaRT were given an opportunity to provide an explanation.

'The information requested exists and the differences between the reports suggests a strong motive for concealing.

I would ask that a senior manager takes ownership of this matter and responds within five working days to provide a full explanation as to why the information requested was withheld.

If I am not satisfied, then the matter will be referred to ICO for a Section 77 investigation'.

Prove it

Rather than a senior manager taking ownership, CaRT decided to use a junior member of staff and gamble by asking for proof that a previous report existed:

'You have asked for a response to this allegation, claiming to be aware of another report. But you do not provide a copy of that nor let us know when it can be found. In these circumstances it will be difficult to deal with this matter so perhaps you can provide the document referred to in order that we can comment fully'.

Proof was provided within minutes but no explanation was provided within the timescale set (and no request made for extra time).

The matter has now been referred to the Information Commissioner for possible criminal investigation.

A triple whammy

CaRT has already been told by one boating organisation that its actions on licence pricing are illegal. Furthermore, CaRT has suggested that it also faces legal action from elsewhere (believed to be an joint application for judicial review from a small cohort of boaters).

... and now, CaRT faces the further possibility of criminal proceedings instigated by the Information Commissioner.

Full history of the information request:
[The above link has been changed since first included.]

Same report made public (after removal of slides 23,24,25, and 34).