Delays in investigating FOI complaints

This short briefing on delays in investigating FOI complaints by the Information Commissioner’s Office was circulated to MPs in advance of a debate in the House of Commons on 24 November 2008. You can read the debate in Hansard.

We understand that there is a debate in the Commons today (November 24), to approve an increase in the salary of the Information Commissioner. This may provide an opportunity to raise some issues relating to the operation of the Freedom of Information Act.

A serious problem facing the Act are delays in completing investigations by the Information Commissioner’s Office (ICO). Although the ICO’s published statistics state that over 50% of all FOI complaints are dealt with within 30 days, this figure includes technically invalid complaints which are closed without investigation. These are cases where the requester has, for example, complained to the ICO without first asking the public authority to reconsider its original decision (a requirement under the Act) or has complained about bodies such as private companies which are not subject to the Act at all.

Apart from invalid cases, only 13% of cases received during 2007/08 were closed within 365 days. (Figure extracted from the Annual Report of the Information Commissioner 2007/2008, page 21)

A snapshot of the problem can be seen from a brief analysis the Campaign has carried out of decision notices published by the Information Commissioner during September 2008. Of these, 20 specifically identified the date on which the requester complained to the Information Commissioner’s office.

The longest of these took 32 months from the date on which the requester complained to the Commissioner to the date on which the decision was issued. The next longest took 30 months, the third nearly 27 months, and the fourth and fifth 26 months. Only 6 of the 20 cases were dealt with in less than 12 months. The fastest of the investigations published in September took 6 months, and the next shortest took 6 months, 7 months, 8 months and 10 months. The average time taken to investigate the 20 complaints was almost 19 months.

The Information Commissioner’s Office received some additional funding from the Ministry of Justice earlier this year and at the same time arrangements were made to second central government staff to the Commissioner’s office. However, it is not clear whether this will result in a significant reduction in delays. In 2007, the ICO’s objective was to deal with 80% of FOI complaints within 365 days, indicating that they expected to take more than a year in 20% of cases. However, that target has been reduced, according to the ICO’s corporate plan for 2008-2011. The current target is to deal with 70% of FOI complaints within 365 days. The new target therefore assumes that 30% of complaints will now take more than a year.

We understand that the Commissioner’s office is now fast-tracking some of the cases which it identifies as being of particular significance, so that not all new complaints automatically go to the back of a long queue. The delays are nevertheless a major concern and a threat to the effective operation of the Act. By the time information is disclosed, if that is what the Commissioner requires, it may be too late to be of use to the requester, who may also have become disillusioned with the FOI Act during the process and reluctant to make further requests. At the same time, some authorities may decide to exploit the long delays, calculating that even a plainly unjustified refusal may go uncorrected for a prolonged period.

This problem is at least partly attributable to the level of funding provided to the Commissioner’s office but there may also be potential efficiency gains available.

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