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.
This is about an FOI tribunal case which has prompted a good deal of controversy and media comment from people who are concerned, in various different ways, about its ramifications. I do not address these wider points here. My aim is simply to summarise clearly the underlying issues that directly relate to freedom of information law and procedure.
In September 2021 Page’s daughter had attended a relationships and sex education lesson at the school, which was delivered by an external provider, the School of Sexuality Education (SSE). Afterwards, Page had concerns about the content of the lesson, which she raised with Hatcham College. During a meeting at the school she saw some of the slides used in the session, which the school had obtained from SSE for this purpose. Page then submitted an FOI request for more information about the lesson, other lessons on relationships and sex, and the school’s involvement with SSE.
The school is part of an academy trust, Haberdashers’ Aske’s Federation Trust, which supplied some of the material requested but withheld other material. Page complained to the Information Commissioner’s Office, who backed the trust’s refusal in a decision issued in September 2022.
Page then appealed against the ICO’s decision to the First-tier Tribunal, which has just heard the case, finishing today. The ICO submitted written arguments but declined to take part in the oral hearing (as is not uncommon). Hatcham College and the academy trust did not participate in the tribunal proceedings. The School of Sexuality Education was represented, supporting the position of refusal to provide the information to Page.
I listened in to the submissions made to the tribunal today. There is also an account of the hearing in the live tweets at this site.
The judge Sophie Buckley said that the tribunal’s judgment would be issued within four weeks of the completion of today’s hearing.
The issues to be determined by the tribunal are:
1. Would disclosure of the presentation slides used in the lesson be an ‘actionable breach of confidence’? If so, then the information can be withheld under section 41 of the FOI Act.
The SSE’s barrister Susan Wright argued that disclosure would be an actionable breach of confidence, on the grounds that it would be detrimental to SSE if its intellectual property was placed in the public domain and made accessible to competitors, that unrestricted disclosure of the material was not necessary in the public interest, and that the school would have no valid defence for an action for breach of confidence. This was also the view of the Information Commissioner.
Page’s barrister Zoe Gannon argued that the possibility of any competitive disadvantage was exaggerated given new government advice on disclosing such materials, and that the public interest requires parents to be able to know what their children are being taught, and in particular to find out the content of sex education lessons, as they have a legal right to withdraw their children.
Initially the school used section 43 of the FOI Act to withhold information, on the basis that disclosure would damage SSE’s commercial interests and be against the public interest. However the Information Commissioner relied instead on section 41 to reject Page’s complaint. If the tribunal now backs Page’s appeal under S41, this involves deciding that the overall balance of the public interest favours disclosure, and so the logic is that this would also result in her winning over any S43 objection too.
2. Should the school reveal the names of the two representatives of SSE who delivered the lesson?
This is their personal information. Personal data should be withheld under FOI where this would be in line with data protection law, including the UK General Data Protection Regulation (GDPR). The key legal test is laid down in GDPR Article 6(1)(f) – effectively, is releasing this information ‘necessary’ for the ‘legitimate interests’ pursued by Page and do these interests override the interests of the people who are the subject of the information (ie the people who would be publicly identified)?
The SSE’s barrister Susan Wright argued that there was a risk of harassment to the two individuals if they were named publicly. The ICO view was that questions of suitability of the individuals could be addressed by means other than identifying them. Page’s barrister Zoe Gannon argued that the risk of harassment was overstated and it was trumped by Page’s legitimate interest of finding out more about the lesson providers who had taught her daughter.
3. Did Hatcham College carry out full searches for all the information requested?
Page argues that the school failed to conduct proper and thorough searches for lesson material on what might be thought of as the most contentious topics in other lessons. The school argued that this material was not prepared, and so was not actually held.
‘It’s not good’, ‘Oh dear’ – civil servants uneasily puzzling over how messages relevant to a freedom of information request disappeared from Nadhim Zahawi’s mobile phone when he was a business minister.
This is part of an FOI disclosure to me, which reveals as well how the Cabinet Office discouraged government departments from checking personal mobile phones or private email accounts for material when answering FOI requests.
The documents also show that the Department for Business, Energy and Industrial Strategy (BEIS), which was dissolved earlier this year, had a blanket policy requiring all releases of information under FOI to get clearance from the departmental press office and ministers’ special advisers.
This process would make it easier for FOI responses to be improperly affected by political interference and communications considerations.
BEIS also relied on the controversial Cabinet Office FOI Clearing House to approve an FOI response it intended to send.
All this is apparent in an FOI reply to me from the Department for Energy Security and Net Zero, a successor to BEIS. The government refused to release this material until it was forced to do so by the Information Commissioner’s Office.
According to the records disclosed, in 2021 the Cabinet Office told BEIS that it should ‘not normally be necessary’ for departments to ask individuals to search their personal devices or accounts for official information relevant to a request, unless there were ‘limited and exceptional circumstances’.
Ministers and officials are supposed to copy to official record systems any messages from their personal devices or accounts that constitute government business. However in reality it is plain that this often doesn’t happen, even though these communications are legally subject to FOI.
A few weeks ago the Cabinet Office issued new guidance which is more in keeping with the law. This states: ‘When responding to information access requests, departments should consider if relevant information may be held in NCCCs.’ (NCCCs are ‘non-corporate communication channels’, such as private email accounts and chat apps on mobile phones).
My request for information related to the department’s handling of an earlier FOI application in April 2021 from the Times journalist George Grylls. This was for messages between Nadhim Zahawi, then a junior business minister, and David Cameron, about Greensill Capital, the financial services company for which Cameron lobbied. Grylls’ request specifically included asking for Zahawi’s phone to be searched.
BEIS replied to Grylls that it did not hold any information within the terms of his request, which was puzzling as Cameron himself revealed some such messages to a Commons committee.
It later transpired that Zahawi had informed officials at BEIS that he did not have any messages from Cameron on his phone. When pressed he said he attempted to find the WhatsApp messages on his mobile but they were no longer there.
BEIS told the ICO: ‘It is our understanding that Mr Zahawi does not know how the WhatsApp messages from Mr Cameron came to be deleted from his mobile phone.’
The disclosure to me reveals some anxious discussion among BEIS civil servants struggling with how to handle the issue of information disappearing from Zahawi’s phone. On discovering that the WhatsApp setting enabling automatic deletion of messages had only been introduced in November 2020 and was not retrospective, one wrote ‘it’s not good’, and another replied ‘oh dear’. A senior private office official added: ‘I’m just getting a bit worried about the effect of another clarification/exchange with him [Zahawi] on this.’
The disclosure also sheds light on the approval procedures for FOI replies from BEIS. The officials responsible for handling the request from Grylls were instructed by the department’s FOI team: ‘All requests involving disclosure of information need to receive clearance from News Desk and SpAds before being issued.’
But according to the Cabinet Office’s FOI guidance, special advisers must not be allowed to make ‘decisions on whether or not to withhold the information requested’.
BEIS also asked the Cabinet Office’s FOI Clearing House for ‘clearance’ before sending its reply that no relevant information was held. This is despite the fact that the Cabinet Office has insisted that the Clearing House (which is to be replaced) only had ‘a small-scale advisory function’.
The treatment of my FOI request by BEIS was extremely dilatory. The department first failed to respond to my initial request for five months, until I had asked the ICO to intervene, who then instructed BEIS to reply. BEIS then took another five months to process an internal review, again not replying until after I had complained to the ICO.
BEIS refused to release this information, arguing that doing so would inhibit officials from expressing their views in a free and frank manner. The ICO then itself took 12 months to decide the case, meaning that I received the material almost two years after I asked for it in May 2021.
It is not surprising that last year the ICO issued a practice recommendation requiring BEIS to improve its generally poor performance in handling FOI requests.
My practical guide on how to use the freedom of information system
Police investigating allegations about the honours system and links to a royal charity advised the Foreign Office not to release information under FOI about an award given to a Saudi businessman.
The Metropolitan Police’s central specialist crime unit told Foreign Office officials that disclosing the material publicly could damage the process of law enforcement.
The Information Commissioner’s Office has now dismissed an appeal from me and ruled the information cannot be revealed because it would jeopardise a live police investigation and prejudice the apprehension and prosecution of offenders.
The material kept secret includes emails, letters, forms, notes, briefings and committee documents.
The Foreign Office initially dismissed my FOI request on the basis that confidentiality is necessary for the ‘integrity’ of the honours system. It did not mention the police investigation, which was only raised as a factor after I complained to the ICO.
The ICO generally allows public authorities to alter their grounds for withholding material, in line with case law. While the Commissioner’s role is to assess whether the authority’s decision was correct at the time it was taken, in this case the ruling states it was, because the police had already been asked to investigate at that point.
The ICO’s decision notice explains background to the case and summarises the arguments I put forward as to why the information should be disclosed in the public interest.
John Edwards is clearly adapting to life in the UK, seven months after he arrived here from New Zealand to take up the role of Information Commissioner.
Launching his three-year strategic plan for the Information Commissioner’s Office yesterday, he succeeded in saying ‘day-ta’ most of the time, although he did manage to come out with at least one ‘dar-ta’.
While data protection (however pronounced) is certainly the main focus of his attention and indeed the dominant activity within his budget, the new Edwards plan is also important for those concerned about the FOI side of the ICO’s work.
To his credit Edwards has recognised publicly as well as privately that the substantial delays in the ICO’s handling of FOI complaints are not acceptable. In his speech he said that the administering of FOI law ‘requires fundamental change, and that change has to start in my office’.
He and his team have also shown a welcome willingness to engage with the FOI community and discuss (in his words) ‘how we fix a system that clearly needs fixing’.
As the ICO leadership itself recognises, things are now at the stage where requesters need to start seeing practical results rather than just hearing expressions of intention.
As part of its plan the ICO announced new objectives for its work on handling complaints under FOI law and the Environmental Information Regulations (EIR). These include:
• ensuring that less than 1% of its caseload is over 12 months old
• reaching a decision on 80% of complaints within six months
• ensuring that 66% of tribunal appeal decisions go in the ICO’s favour
The current serious casework delays are illustrated by new up-to-date statistics which the ICO also released yesterday, with a commitment to do this regularly.
This is a valuable improvement, because in recent periods the ICO has only been publishing an inadequate series of datasets which are outdated, patchy and limited to closed cases.
The latest figures (for end of June 2022) show that 7.2% of active cases were over 12 months old. The ICO had reached a ‘first decision’ within six months on only 67.7% of cases.
The new dataset of open casework reveals that the ICO is still investigating one complaint relating to Brent Council nearly 26 months after it was made in May 2020.
There are 25 FOI/EIR cases that were still unresolved over 18 months after they were received. Of these, one of them actually involves a complaint about the ICO itself.
But the public authority which features by far the most frequently in these long-delayed cases is the Cabinet Office, which accounts for nearly half of them – 11 of the 25 involve complaints about its refusal to supply information requested. It is not clear whether this is because the Cabinet Office handles especially tricky issues or whether it is particularly slow and difficult about cooperating with ICO investigations, or indeed both.
As for the ICO’s performance objective for when its decisions are appealed by dissatisfied requesters or authorities, I have done a very quick analysis of tribunal cases so far this year, and the target of 66% appears pretty close to the current success rate. My rough calculation produced a figure of 68% (it is based on the summary outcome listed on the tribunals website without checking the details of individual cases).
ICO staff accept that some of their decision notices will inevitably get overturned, but there is always a risk that faster processing of cases can lead to more reversals later.
The ICO says its new approach will include more active prioritisation of significant cases and greater attempts at speedy resolution of disputes without the issuing of a formal decision notice.
For the ICO to improve its FOI casework handling is important and will be a relief to frustrated requesters.
However it is essential as well for the ICO to tackle the crucial systemic issues of poor performance on FOI by numerous public authorities. This week the ICO also released a new framework for regulatory action.
While it is understandable that ICO staff wanted to have this revised policy in place before implementing a tougher stance, it is unclear for the moment how much tenacity will be deployed in carrying out its series of measures and enforcing better standards.
One early promising sign could be the practice recommendation it delivered this week to the Department of Health and Social Care, reprimanding the department over its failure to properly search non-corporate communication channels when responding to FOI requests.
In the Q&A session at the launch I raised one particularly egregious example of FOI deficiency, the fact that in the latest set of government statistics the Department for International Trade had breached the legal deadline for replying to requests an extraordinary 55% of the time.
I asked Edwards what more evidence he would need before taking enforcement action against a badly performing authority and he replied simply: ‘None’.
If this does indicate a much firmer attitude is being adopted, that then is good news and will be strongly welcomed by requesters pursuing their legal rights to information.
I understand the ICO has taken up the issue directly with the DIT. But how persistently determined it will actually be in tackling this sort of blatantly inadequate FOI record remains to be seen.
Edwards announced that he had persuaded government to set up a cross-Whitehall senior leadership group to drive improved compliance on data protection within the civil service. There is some hope within the ICO that this could in future be extended to cover systemic issues of government FOI compliance too.
Unlike his predecessor Elizabeth Denham whose extent of contact with the Cabinet Office had become minimal by the end of her tenure, Edwards says he’s happy with the level of engagement he has been getting from the Cabinet Office.
Edwards also stated that the ICO will be publishing its internal staff training materials on both FOI and data protection, and this is expected to happen soon.
The ICO has initiated a consultation exercise on the three-year plan. If you want to express your views, you can do so here.
My prediction is that today, somewhere in Whitehall, a civil servant will receive a request for information which is the half-millionth freedom of information application to UK central government departments since the FOI law came into force in 2005.
This is based on my extrapolation from the official quarterly FOI statistics for central government issued by the Cabinet Office.
Their published quarterly figures don’t include the cumulative numbers since FOI started, but I’ve been keeping track of the running total, as shown in my chart above.
At the time of the latest published data, for quarter 1 of 2022, the cumulative number of requests to government departments stood at 491,838.
The Cabinet Office won’t be releasing their next set of statistics, covering Q2 of 2022, until September, but I’ve made a projection. Assuming the number of requests in Q2 of 2022 is 7.8% down on last year, the same factor by which requests in Q1 of 2022 were down on the corresponding quarter of last year, then my estimated cumulative total after the end of quarter 2 of 2022 is just over the half million mark, at 500,076 FOI requests submitted to departments since 2005.
On this basis the half-millionth request would just squeeze into the current quarter, today!
If you’re the recipient, congratulations. I feel it should be accompanied by some kind of prize, but sadly no one, not even you, will actually know.
So that is half a million questions. The number of decent answers? Well, that’s a different issue altogether.
The Commons Public Administration Committee is calling for a ‘cultural shift’ across government, with ‘greater advocacy for the core principles’ of FOI and action to improve outcomes for FOI applicants.
In a new report which is highly critical of the Cabinet Office, the committee concludes: “The Cabinet Office needs to work harder to ensure a strong and enthusiastic tone from the top that supports FOI.”
The MPs also rebuke the Cabinet Office for a ‘lack of transparency’ on the workings of its FOI Clearing House, which advises other government departments on handling information requests. And they criticise the Cabinet Office’s refusal to allow an audit of its FOI operations by the Information Commissioner’s Office as ‘misjudged’.
The committee wants to see better timeliness in the freedom information process, through government conducting internal reviews of requests within the 20 days recommended in the Information Commissioner’s guidance.
These are some of the conclusions in the newly published report from the House of Commons Public Administration Committee after its inquiry into the Cabinet Office and FOI, focused around the controversial Clearing House unit.
The report also draws attention to evidence the committee received about ‘poor FOI administration in the Cabinet Office and across Government which appears to be inconsistent with the spirit and principles of the FOI Act’.
The committee chair and Conservative MP William Wragg said: “As FOI policy owner and coordinating department, the Cabinet Office should be championing transparency across government, but its substandard FOI handling and failure to provide basic information about the working of the coordinating body has had the opposite effect.”
The report contains some stinging rebukes for the Cabinet Office, saying that ‘transparency is needed to restore trust’. It calls for the quarterly publication of Clearing House casework data, broken down according to the referring department, and analysed for the timeliness of replies.
The committee’s MPs were clearly particularly annoyed by the fact that the Cabinet Office now releases less information about the casework of the Clearing House than was issued in the past by the Ministry of Justice when it had responsibility for FOI and the Clearing House.
The committee is also concerned about the overall approach of the government to openness. It is worried about ‘a slide away from transparency’ illustrated by the decision to exclude the new Advanced Research and Invention Agency from FOI. The MPs call on ministers to show proactive leadership on championing FOI and set a ‘stronger tone’ on promoting its benefits.
The MPs are unhappy about a split of responsibilities, in which the Cabinet Office oversees FOI policy but DCMS funds the ICO. They argue this should be resolved by either the Cabinet Office taking over the funding or DCMS being given charge of FOI policy.
The committee’s inquiry was prompted by a Tribunal case last year, arising from an FOI request made by Jenna Corderoy, a reporter for openDemocracy. This succeeded in revealing details about FOI requests passed to the Clearing House by other departments after much resistance from the government.
Last August the government said it would set up its own internal review of how the Clearing House functions. Nothing more happened until yesterday – funnily enough, the day just before the Commons committee report was to be published – when it revealed that this review will be led by Sue Langley, the lead non-executive director at the Home Office.
The government review will examine these questions:
● Is the role of the Clearing House proportionate and effective?
● Is there sufficient information available to the public about the operation of the Clearing House?
● How is the ‘applicant-blind’ principle [that the identity of the applicant is not relevant to the handling of an FOI request] understood and adhered to across government?
● Are there other areas of FOI practice across government with scope for improvement (within the scope/line of sight of the Clearing House)?
It is expected to be completed by the summer parliamentary recess (scheduled to start on 21 July), and the Cabinet Office says it will publish a summary of the findings.
The Cabinet Office will also have to publish a formal response in due course to the report of the Commons Public Administration Committee.