22 July 2009

ICO delays raised in Parliament and highlighted by Information Tribunal

The Campaign for Freedom of Information's report on Delays in Investigating Freedom of Information Complaints by the Information Commissioner's Office has been the subject of two Parliamentary questions, one by Lord Lester in the House of Lords and one by Norman Baker MP in the House of Commons. Both received identical responses. It also featured in a short debate in the House of Commons.

Lord Lester of Herne Hill: To ask Her Majesty's Government following the publication of the report by the Campaign for Freedom of Information, Delays in Investigating Freedom of Information Complaints, what steps they will take to ensure that the Information Commissioner's Office can complete its investigations in a timely manner. [HL4851]

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): The Ministry of Justice (MoJ) and the Information Commissioner regularly review the resources required for the commissioner to discharge all of his freedom of information responsibilities. For this financial year, the Government have identified additional funding of £500,000 for the Information Commissioner's Office's freedom of information work, over and above the baseline funding of £5 million. We are discussing with the office how it can use this additional funding most effectively to reduce the number of outstanding cases.

In addition, the MoJ promoted a scheme last year where secondees from central government departments work for the ICO to help clear the freedom of information cases at their home departments’ expense. There are currently seven secondees working at the ICO.

Gordon Prentice MP, a member of the Public Administration Committee, raised the issue during the debate on the Summer Recess Adjournment. Citing the Campaign's finding that 25% of cases resulting in a decision notice from the ICO took between 2 and 3 years, he said:

In the long run, we are all dead and a Parliament runs for a maximum of only five years, yet people are waiting for years for the Information Commissioner to come forward with a decision—I am one of those people.

Mr Prentice used his own experience of making a Freedom of Information request to the Cabinet Office to illustrate the problem:

In November 2007, in the Public Administration Committee, I raised the case of Michael Ashcroft with the Cabinet Secretary. I did so because in March 2000, No. 10 issued a press release that said that Michael Ashcroft had given—I paused for effect there—

“ a clear and unequivocal assurance”

that he would take up permanent residence in the UK by the end of the year—by the end of 2000. To this day, he refuses to answer the question on that. I, therefore, raised it with the Cabinet Secretary in the Select Committee in November 2007. Sir Gus O’Donnell got back to me, saying that the Cabinet Office has no jurisdiction over either House of Parliament and he did not see a role for him on the issue of the undertaking, as it was really not a matter for him. On the other question of residency, he said that it was exempt information because it involved a conferring by the Crown of an honour or dignity—that refers to Michael Ashcroft’s peerage. The second reason the information was exempt was that it related to personal information provided, by Michael Ashcroft, in confidence.

Those reasons were bogus and spurious, so I appealed. My appeal was considered by the permanent secretary at the Cabinet Office and it was turned down in March 2008. At the end of that month, I wrote to the Information Commissioner and the matter has been with the Information Commissioner ever since. To this day, I do not know why there has been a huge delay of 16 months. I am asking only for two simple pieces of information. I do not want to know how much tax Lord Ashcroft is paying, but I want to know the answer to the following questions: to whom did Michael Ashcroft give that assurance and what form did that assurance take—was it oral, in a letter or in an e-mail? I have been denied those two straightforward pieces of information for 16 months.

Mr Prentice added that if he didn't have the information within 4 weeks, he would raise this matter again when the House returns in October.

The Information Tribunal has also criticised the ICO over delays in investigating complaints. In Student Loans Company Limited and Information Commissioner, the Tribunal said:

Mr Swain complained to the Commissioner on 18 July 2006. Regrettably, there then followed a period of 22 months’ delay during which, so far as we can tell, the Commissioner took no steps to fulfil his statutory duty under FOIA s50. His investigation only commenced on 16 May 2008. We are not in a position to say, and it is not for us to decide, to what extent that inordinate delay was due to lack of resources, or to deficiencies in the Commissioner’s systems of internal management, or to a mixture of those or indeed other causes. What is clear is that the volume of complaints to the Commissioner has been much higher than was predicted and, in cases where information ought to have been disclosed by the public authority, long delays in the commencement or conduct of the Commissioner’s investigations tend to frustrate the purpose of the Act and deny to the public the rights which the Act has created.

The investigation was concluded on or about 17 July 2008, but the Commissioner’s decision notice was not issued until 3 November 2008. Since the delays were not an issue in the case, we have no information on why such a long period elapsed from the conclusion of the investigation to the issue of the decision notice. The present case is not one of exceptional difficulty. We would have expected that in a properly resourced and properly managed office, following the conclusion of the investigation, three weeks would have been a sufficient period for the production of the Commissioner’s reasoned decision.
...
The overall picture in this case is disturbing. As we have indicated, the request for information was originally made on 21 March 2006, and the matter was referred to the Commissioner on 18 July 2006. From that point it took in excess of 21⁄4 years for the requester to obtain a decision from the Commissioner that the information ought to have been released. For many requests which are made under the Act, the timeliness of the release of information is important. Where public interests are served by the disclosure of information, they are usually better served by prompt release than by a disclosure which is held up for months or years. The Act is written on this basis: subject to certain exceptions, information is required to be disclosed by the public authority within 20 working days after the request. It seems to us that delays of the magnitude which occurred here seriously undermine the operation of the Act. The right to obtain information that ought to be made public loses much of its usefulness if it cannot be enforced within a reasonable timescale. While it may be that a requester could compel the Commissioner to act promptly by means of an application to the High Court for judicial review, most requesters are unlikely to possess the determination or the funds to make this a practical option. If public authorities come to expect that a reference to the Commissioner may take several years to be dealt with, they may be tempted to withhold information that ought to be disclosed, in the hope that the requester or the public will have lost interest in the topic by the time it is finally prised out of them, or that any embarrassment that might have been caused by prompt disclosure will be diminished because of the passage of time. Such a situation would be wholly unacceptable.

This ICO's decision in the Student Loans Company case was highlighted in the Campaign's report as having the longest delay before the ICO's investigation began - 22 months.

The Campaign's report on delays was published in 2 parts, a report plus a table providing data on all 493 decision notices considered in the study:

1) Delays in Investigating Freedom of Information Complaints Report (pdf)

2) Table of decision notices 1.10.07 to 31.3.09 (pdf)