Deferring decision notices

The Information Commissioner’s Office appears to be delaying the issue of decision notices in at least some FOI cases. The aim is to reduce new appeals to the tribunal and the burden on public authorities who would have to respond to them.

The Information Commissioner’s Office has written to a requester saying that his complaint has not been upheld, adding:

“the Commissioner proposes to close this case informally. Should you wish to challenge this decision at the First Tier Tribunal, please let me know and a decision notice will be prepared.

Please note, however, that in order to not place undue burden on public authorities and the Tribunal during the Covid-19 pandemic, the Commissioner will not issue this decision notice immediately and will wait until such time she considers appropriate.”

This case related to an FOI request for the Intelligence and Security Committee’s (ISC) report on possible Russian interference in the 2016 Brexit referendum. The Cabinet Office had initially refused it on the grounds that the report was due to be published in future and was therefore exempt under section 22 of FOIA. In fact, the government is only committed to publishing a redacted version of the report which means that the redacted passages could not be withheld under this exemption. During the ICO investigation the Cabinet Office applied section 23 of the Act to the whole report. This is an absolute exemption applying to information relating to or supplied by specified security bodies, including the ISC.

At the date of writing the ICO had published 34 decision notices on its web site dated between 1 and 17 April 2020, nearly all of which could lead to tribunal appeals. All have been issued since the ICO’s new policy of not penalising authorities for failing to meet FOI deadlines during the pandemic. It’s not clear whether the delaying of the above decision notice represents a new approach which will apply to all decisions for the time being or whether it is being applied in selected cases only, and if so on what basis – and whether it will apply to potentially urgent requests relating to the pandemic itself.

If it is necessary to protect authorities from FOI appeals so as not to divert them from responding to the pandemic, this should be done by the tribunal which has already deferred all existing FOI appeals by two months. The tribunal can also can extend the time limits for individual cases if asked to. It should not be necessary for the ICO to withhold decision notices from the public.

[Note: This piece was amended shortly after initial publication on 29 April 2020 by adding the final paragraph]

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