FOI

FOI: Which complaints are upheld by the ICO?

Leave a Comment / Data analysis, FOI / /

Freedom of information requests can be rejected for a range of reasons, but some are much more likely to be overturned by the Information Commissioner’s Office than others.

The details of this are made clear by my analysis of a dataset recently released by the ICO covering nearly 22,000 decisions issued by the information rights regulator since FOI came into force.

For example, the ICO has upheld nearly half the complaints received from information requesters against FOI refusals linked to protecting commercial interests. But it has upheld only one in six objections to refusals based on international relations.

This table shows, for each of the legal grounds for dismissing FOI requests, the number of complaints about that reason which the ICO has ruled on and the percentage which it has upheld (ie backing the requester and overriding the public authority).

Subject matter
(section of FOI Act)		Number of
complaints		Percentage
upheld
The economy (29)2756
Relations within UK (28)1753
Commercial interests (43)101047
Future publication or research (22/22A)21344
Health and safety (38)11942
Policy formation (35)62238
Already accessible (21)33236
Effective conduct of public affairs (36)96735
Audits (33)3834
Confidential information (41)60534
Law enforcement (31)86030
Vexatious or repeated (14)149823
Investigations (30)31821
Personal data (40)309718
Monarchy and honours (37)18118
Defence (26)4117
National security (24)29917
International relations (27)29216
Legal privilege (42)50716
Otherwise prohibited (44)40614
Cost (12)149112
Court records (32)1088
Security bodies (23)3047
Parliamentary privilege (34)120
Source: Martin Rosenbaum, based on ICO data

Or in chart form:

So during FOI’s two decades of operation, the ICO has been much happier to overrule public authorities on matters like commercial interests and policy formation than on topics like defence, security and international affairs.

My analysis uses three spreadsheets with details of ICO rulings which were recently disclosed via the What Do They Know website, in response to a request from Alison Benson. The spreadsheets list the ICO’s formal decision notices from the first one in 2005 until last month.

The ICO maintains that it provided this material voluntarily ‘on a discretionary basis’, arguing that the information would be already available through its routine publication of decision notices.

However the supply of these three files makes the statistical analysis of ICO rulings much more practical than by trying to process all the individually published decisions. The ICO’s release of this dataset is therefore a positive and welcome step in terms of its own transparency.

Environmental information

Note that my analysis excludes environmental information, which falls under a different law, the Environmental Information Regulations. The EIR exceptions do not exactly correspond to the FOI exemptions, so the data cannot be combined.

The numbers of EIR cases are fewer than for FOI, but a similar pattern emerges. Thus the ICO has more frequently overruled public authorities when they base an EIR refusal on commercial confidentiality or the internal nature of communications, rather than when authorities rely say on protecting the course of justice.

Delay

It is also possible to analyse aspects of the dataset in more detailed ways. Here is one example.

This table shows the 15 public authorities against whom the ICO has most often upheld complaints about delay in processing FOI requests (under section 10 of the FOI Act), and how many times this has happened since 2005.

Public authorityUpheld complaints
about FOI delay
Home Office303
Ministry of Justice173
NHS England162
Cabinet Office161
Dept of Health and Social Care84
Metropolitan Police82
Dept for Work and Pensions79
Foreign Office74
Sussex Police74
BBC60
Ministry of Defence58
Dept for Education54
Wirral Council43
Croydon Council39
Information Commissioner’s Office35
Source: Martin Rosenbaum, based on ICO data

On this measure the public authorities with the biggest record of delay since FOI was implemented are the Home Office, the Ministry of Justice, NHS England and the Cabinet Office.

Ironically the authority which comes 15th on this list of shame is the ICO itself! This is clearly a very bad record for an organisation which should be setting a good example of prompt compliance with the law, but at least as a regulator it has been willing to point out its own failings.

Notes: 1) My analysis amalgamates bodies which at some point since 2005 had some change of name or scope but remained essentially the same organisation (eg NHS England with NHS Commissioning Board; Department of Health and Social Care with Department of Health). 2) The ICO is thoroughly and annoyingly inconsistent when naming authorities (eg sometimes using ‘Metropolitan Police Service’ and sometimes using ‘Commissioner of the Metropolitan Police Service’. I hope I have spotted all such instances and combined the figures accordingly, but it is possible I have missed some.

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The art not seen

FOI / /

Suppose you are the lucky owner of a very valuable object which is ‘pre-eminent’ for its historic or artistic interest.

When you die, that might result in a substantial inheritance tax payment. Except that this can be completely avoided, if HMRC agrees that the item constitutes a national heritage asset, and the inheritor is willing to let the British public come and look at it.

And if you are not already the owner of such an artefact, but you can afford it, you could buy one – as a handy method of reducing the tax liability of your estate. Naturally there are legal and financial advisors who will help you do this.

The objects exempted from tax under this law range from a Rembrandt self-portrait to a ‘pair of Chelsea Derby candlestick figures, each of a scantily draped winged cupid kneeling with arm around a floral encrusted bough, rococo scroll base with gilt enrichment, 6 3/4in. high (both with sconces missing, some damages)’.

A full list is published by the government, in a database currently containing over 36,000 entries. Some are on public display – HMRC has told me that about 8,000 are on loan to museums or galleries. But for the others, which is the large majority, how often does anybody actually make use of their legal right to go and see them?

No overall statistics are available to answer this question. However, according to information I have just obtained from HMRC under FOI, there were just 5,521 searches of the database in the last financial year (2023/24).

Obviously the number of actual visits will doubtless be much fewer than the number of database searches, many of which will not lead to any further action. Even though it is possible visitors might see more than one item at a time, it seems very likely indeed that most of these ‘national assets’ – saved for the nation at public expense – are never appreciated by any member of the general public, and certainly not by significant numbers of them.

You can find out what is available, and when and how it can be viewed, by searching the database. In many cases public access must be allowed without a prior appointment for at least a few days each year. Outside these open days, an appointment may be required.

That’s the theory. The practice might be somewhat trickier. As the tax consultancy Ross Martin states: “It seems that few people try and see some of the objects. On a practical level, it is very difficult to gain access to some of the assets. Access in most cases is handled by private client law firms and the links given to open days can be uninformative. Be prepared to be ruthlessly persistent if you wish to see an object or a collection.”

HMRC also informed me that ‘we do from time to time get contacted by members of the public directly to make us aware of any access issues that they have experienced’. But it does not have a central record of receiving any formal complaints about this.

In the 1990s the campaigning comedian Mark Thomas organised coachloads of visitors to attempt to see various artworks involved for a television programme. The law has since been changed, and access should have become easier.

HMRC estimates that this inheritance tax exemption/loophole (according to your personal preference), together with a similar rule for land and buildings, reduces government tax receipts by about £60 million annually.

The art not seen Read More »

Anomalies detected, but every little helps …

FOI / / , , ,

Like many laws the Freedom of Information Act has apparent anomalies, which may or may not have been intentional.

It seems very odd, for example, that the FOI process doesn’t let you find out about complaints and other issues which council trading standards departments are pursuing with businesses. I’d expect even people who don’t much like FOI to think that kind of consumer protection information should be publicly available.

But it isn’t, because the Enterprise Act 2002 stops councils from releasing it. After some early legal disputation it was ruled that this legislation trumps the disclosure requirements of the FOI Act. To illustrate, here’s an ICO decision notice about a case relating to a window installation company.

Another anomaly is that obtaining environmental information is not covered by the FOI law, but by a separate set of rules, the Environmental Information Regulations. These are similar to the FOI regime, but not identical, and in my opinion both public authorities and people requesting information are not sufficiently alert to the differences.

These two anomalies are connected, in that I have recently successfully argued that while the Enterprise Act can block the disclosure of material under FOI, it can’t be used to prevent the release of environmental information. The EIR do not allow the legal basis for that kind of refusal.

So Hertfordshire Council have now been forced to send me copies of trading standards emails sent to Tesco about price displays under the planned Scottish deposit return scheme for single-use drinks containers.

(Businesses which operate across multiple locations can deal with just one council as the ‘primary authority’ for trading standards purposes. Tesco’s primary authority is Hertfordshire, where its corporate head office is based. This arrangement extends to Scotland, as – unlike the deposit scheme itself – consumer protection is not a devolved policy area.)

Over several months Hertfordshire Council went through a number of different and implausible arguments while it tried to resist giving me this documentation. It first proclaimed that due to the Enterprise Act disclosure would prejudice the administration of justice; it then moved to saying it would damage the interests of the information provider (ie Tesco); it finally decided to assert that a deposit return scheme for bottles and cans was nothing to do with the environmental issue of recycling – an argument dismissed by the Information Commissioner’s Office, which ruled in my favour.

The emails I have received show that in 2022 the council was telling Tesco that shop price labels would have to state the full price for the relevant bottled and canned products including the deposit, not a price separately without the deposit.

However the implementation of the Scottish scheme (which was beset by controversies) has since been postponed, so this is no longer a pressing concern. As matters now stand, the UK, Scottish and Welsh governments are pledged to introduce a UK-wide deposit return scheme in October 2025. If this goes ahead then the issue of how prices are displayed in order to be fair to consumers will doubtless be widely raised.

Further reading: I give a detailed account of the numerous significant differences between FOI and EIR, and how they affect the process of obtaining information, in my book.

Anomalies detected, but every little helps … Read More »

Charlotte Owen, Ross Kempsell and the secrecy of HOLAC

FOI / / , ,

My attempt to find out what the House of Lords Appointments Commission had to say (if anything) about the award of peerages to Charlotte Owen and Ross Kempsell by Boris Johnson has just been rejected by the Information Commissioner’s Office.

I will now be appealing this to the First-tier Tribunal, on the grounds that in my opinion it is in the public interest for this material to be revealed, despite the view of the ICO.

Last July I made a freedom of information request to HOLAC for the material it held about the two individuals we now know as Lady Owen of Alderley Edge and Lord Kempsell, after their somewhat unexpected appointment to the House of Lords in Johnson’s resignation honours list.

After HOLAC declined to send me anything, I complained to the ICO. My arguments can be summarised as follows:

  • The appointment of members of a law-making assembly, people with substantial political influence and decision-making powers to make laws governing the rest of the population, requires a great degree of legitimacy, and that in turn demands maximum transparency.
  • This is especially true for these two individuals, given (a) their comparative youthfulness means they are likely to hold politically powerful roles for several decades and indeed in due course may well be amongst the longest-serving legislators in the UK’s history; and (b) the widespread public puzzlement and concern as to what they have achieved or what qualities they possess.
  • Issues of propriety (HOLAC’s responsibility here) are an important aspect of assessing suitability for membership of the House of Lords.
  • Disclosure is necessary for the legitimate interests of the general public to understand fully the processes for appointing people who take decisions on behalf of the nation, and for the public to be able to see for themselves whether the processes are adequate.

HOLAC argued:

  • Their process requires confidentiality to ensure that decisions are taken on the basis of full and honest information and that potentially sensitive vetting information can be candidly assessed.
  • The information it already places in the public domain about its working practices provide the public with reassurance that its processes are sufficiently rigorous.
  • In the case of a resignation honours list, its role is limited to an advisory one, notifying the prime minister of whether it has concerns about the propriety of peerage nominations, and does not extend to assessing the overall merits of nominees.

The ICO has upheld HOLAC’s stance. We will now find out what the First-tier Tribunal makes of the rival arguments. It is likely to take several months before the Tribunal decides the case.

I was interested to see last month that the UK Governance Project, a high-powered independent commission with a distinguished membership, drew attention to the problem of lack of transparency at HOLAC. It recommended that HOLAC should always have to publish a citation setting out the basis on which it has approved an individual for appointment.

Charlotte Owen, Ross Kempsell and the secrecy of HOLAC Read More »

The ICO’s tougher FOI enforcement policy 

FOI / /

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.

The ICO’s tougher FOI enforcement policy  Read More »

Clare Page v Information Commissioner and the School of Sexuality Education

FOI / / , ,

Preamble

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.

Background

The case involves an FOI request made by Clare Page in December 2021 to Hatcham College, a secondary school in New Cross, south London.

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

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.

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‘Oh dear’, the view within Whitehall

FOI / / ,

‘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.

‘Oh dear’, the view within Whitehall Read More »