September 2023

This article was originally published on the website of Act Now Training, which provides training and consultancy on information law and governance.

Last month the Information Commissioner’s Office announced it was issuing another two Enforcement Notices against public authorities with extreme backlogs of FOI and EIR requests; the Ministry of Defence and the Environment Agency. From the published notices it is clear that both authorities had consistently failed to tackle their excessive delays, despite extensive discussions over many months with the ICO.

The ICO also issued Practice Recommendations, a lower level of sanction, to three authorities with a poor track record on FOI; Liverpool Council, Tower Hamlets Council and the Medicines and Healthcare Products Regulatory Agency. This brings the total of Enforcement Notices in the past year or so to six, and the number of Practice Recommendations to 12.

As Warren Seddon, the ICO’s Director of FOI, proclaimed in his blog on the subject, both these figures exceed the numbers previously issued by the ICO in the entire 17 years since the FOI Act came into force.

From my point of view, as a frequent requestor, this is good news. For requestors, the ICO’s current activity represents a welcome tougher stance on FOI regulation adopted by Seddon and also the Commissioner, John Edwards, since the latter took over at the start of last year.

Under the previous Commissioner Elizabeth Denham, any strategic enforcement regarding FOI and failing authorities had dwindled to nothing. The experience of requestors was that the FOI system was beset by persistent lengthy delays, both from many authorities and also at the level of ICO complaints.

The ICO’s Decision Notices would frequently comment on obstruction and incompetence from certain public bodies, as I reported when I was a BBC journalist, but without the regulator then making any serious systematic attempt to change the culture and operations of these authorities.

Under Denham the ICO had also ceased its previous policy of regularly and publicly revealing a list of authorities it was ‘monitoring’ due to their inadequate processing of FOI requests. Although this was in any case a weaker step than issuing formal enforcement notices and practice recommendations, in some cases it did have a positive effect.

Working at the BBC at the time I saw how, when the BBC was put into monitoring by the ICO, it greatly annoyed the information rights section, who brought in extra resources and made sure the BBC was released from it at the first opportunity.

On the other hand, other public authorities with long-lasting deficiencies, such as the Home Office and the Metropolitan Police, were kept in ICO monitoring repeatedly, without improving significantly and without further, more effective action being taken against them.

The ICO’s FOI team has also made important progress in the past year in rectifying its own defects in processing complaints, speeding things up and tackling its backlog. This led to a rapid rush of decision notices.

One result is that delay has been shifted further up the system, as the First-tier Tribunal has been struggling to cope with a concomitant increase in the number of decisions appealed. I understand that the proportion of decisions appealed did not change, although I don’t know if the balance between requestor appeals and authority appeals has altered.

Another consequence has been that decision notices now tend to be shorter than they used to be, especially those which support the stance of the public authority and thus require less interventionist argument from the ICO. Requestors may need to be reassured that the pressure on ICO staff for speedier decisions does not mean that finely balanced cases end up predominantly being decided on the side of the authority.

More generally I gather there is some concern within the ICO about its decisions under sections 35 and 36 of FOI, to do with policy formulation and free and frank advice, that some staff have got into a pattern of dismissing requestors’ arguments without properly considering the specific circumstances which may favour disclosure.

As part of its internal operational changes, a few months ago the ICO introduced a procedure for prioritisation amongst appeals and expediting selected ones. I have seen the evidence of this myself. A complaint I made in April was prioritised and allocated to a case worker within six weeks and then a decision notice served within another six weeks (although sadly my case was rejected). All done within three months.

On the other hand a much older appeal that I submitted to the ICO in May 2022 has extraordinarily still not even been allocated to a case worker 15 months later, from what I have been told. This is partly because it relates to the Cabinet Office, which accounts for a large proportion of the ICO’s oldest casework and has been allowed a longer period of time to work through old cases.

It is interesting to note that the ICO does not proactively tell complainants that their case has been prioritised, even when they have specifically argued it should be at the time of submitting their complaint.

The ICO wants to avoid its staff getting sucked in to disputes about which appeals merit prioritisation. If you want to know whether your case has been prioritised, you have to ask explicitly, and then you will be told.

The ICO has not yet officially released any statistics about the impact of its new prioritisation policy. However I understand that in the first three months about 60 cases were prioritised and allocated to a case officer to investigate within a month or so. This is a smaller number than might have been expected.

Around 80 percent of these were prioritised in line with the criterion for the importance of the public interest involved in the issue. And about 60 percent of decisions to prioritise reflected the fact that the requestor was in a good position to disseminate further any information received, possibly as a journalist or campaigner.

In most of the early decision notices for prioritised complaints the ICO has backed the authority and ruled against disclosure. So if you are a requestor, the fact that the ICO has decided to prioritise your appeal does certainly not mean that it has reached a preliminary decision that you are right.