Delayed decision notices raise more questions

We have previously described the Information Commissioner’s policy of delaying the release of some decision notices, to reduce the burden on public authorities during the pandemic. A new example raises further questions about this approach.

John Slater is a campaigner who has assiduously used the Freedom of Information (FOI) Act to seek information about the Department for Work and Pensions’ (DWP) Universal Credit programme. In September 2018 Mr Slater asked the DWP for copies of any reviews of the programme and any assessments of its IT system over the previous 33 months. In November 2018 he complained to the ICO about the department’s refusal. It took 5 months before the ICO investigation started, leading the case officer to say in July 2019 that he would ‘prioritise’ the matter. In January 2020, 14 months after his complaint, Mr Slater was told that the decision notice had been drafted but not yet signed. Four months later, on 15 May 2020 the ICO gave him the unwelcome news that the completed decision notice was being withheld because of the pandemic.

The ICO said:

“In the Covid-19 pandemic climate, many public authorities are facing severe front line pressures and are re-deploying resources to meet those demands. The Commissioner’s view is that public authorities therefore require maximum flexibility currently to deploy their resources to best respond to a national crisis.

As a reasonable and proportionate regulator, the Commissioner has therefore taken the decision to amend her casework approaches to reduce the burden on public authorities in these unprecedented times whilst it is necessary to do so. You can read more about the Commissioner’s approach here: https://ico.org.uk/about-the-ico/news-and-events/news-and- blogs/2020/04/how-we-will-regulate-during-coronavirus/

In your particular case, whilst a decision notice has been prepared, it cannot be served at the present time. In line with the Commissioner’s amended casework processes, we will not serve decision notices where this will have a disproportionate impact on a public authority’s ability to respond to the public health crisis. The Commissioner will regularly review her position on held [sic] decision notices and will make case by case decisions to issue decision notices as soon as it is appropriate to do so.” (emphasis added)

However, the ICO has published other decision notices during the pandemic. Most do not require any action to be taken but a small number have ordered disclosure.

On 6 May 2020 an ICO decision notice required the Ministry of Justice (MOJ) to disclose certain information about the decision to house sex offenders at an open prison in Suffolk. Another decision notice required the MOJ to release press office emails about the release of a named child sex offender from prison the previous March and the exact time of every release from the prison during that month.

The MOJ faces a major pandemic crisis in prisons, so under the ICO’s approach these decisions might also have been held back. The fact that they weren’t is welcome, but raises the question of precisely how the ICO decides to publish some and delay the release of others.

By the time Mr Slater’s complaint fell into the pandemic trap, it had been with the ICO for 18 months. By comparison, the MOJ complaints had raced through the ICO system, one taking only 4 months. Mr Slater had to wait 5 months before the ICO investigation into his complaint even began.

The ICO says decision notices will not be published while that would have a ‘disproportionate impact on a public authority’s ability to respond to the public health crisis’. But how is this impact judged?

Does it, for example, depend on the volume of information involved? The MOJ material may be less than that which the DWP would have to process. Is that the critical factor? We don’t know.

Does it take account of whether the staff who would have to implement the decision notice are themselves involved in pandemic work? What if they are not, and instead are working from home with remote access to the records? In that case, the authority should be able to comply with a decision notice without affecting its response to the crisis. That should be a critical factor, but we don’t know if it is.

What about the public interest in the information? Mr Slater’s request relates to the fitness of the Universal Credit system, on which millions of claimants, including nearly two million who have applied since the lockdown, depend. He highlights a 2018 Public Accounts Committee report which reported that the DWP had ‘persistently dismissed evidence that the new system was causing unacceptable hardship for claimants’, criticised its ‘continued lack of transparency’ and found that it ‘refuses to measure what it does not want to see’. The public interest in the functioning of the benefits system, on which millions of people rely, must be substantial. It is surely greater than that involved in one of the MOJ decisions, which relates to whether a ‘celebrity’ sex offender was released from prison at midnight in order to avoid media coverage. Is the public interest – a crucial issue – taken into account at all? We don’t know.

What if it’s clear that the authority will appeal to the tribunal against the decision notice? The ICO has ordered the release of previous project reviews of this kind – and the departments concerned have always appealed and usually lost. If this decision notice demands disclosure it’s a safe bet that the DWP will challenge it. The work on a new appeal will largely fall on its lawyers and external counsel who will find a stack of past tribunal decisions rehearsing the arguments. The lawyers are unlikely to have a front-line pandemic role. Is it plausible for the ICO to argue that issuing this decision will have ‘a disproportionate impact’ on DWP’s Covid-19 efforts?

In any event, parties before the tribunal can ask for a delay if they have reasonable grounds. A genuine risk of disrupting an authority’s pandemic response would no doubt qualify. At the ICO’s request, the tribunal has twice delayed all FOI appeals during the lockdown, for a month each time, presumably because of the ICO’s difficulties in preparing for the tribunal in the circumstances. It is likely to be responsive if a party shows that preparing for a hearing would undermine its work on the emergency. Decision notices do not need to be suppressed for this purpose.

What if the decision notice is issued, but the authority doesn’t comply? At that point, the ICO could refer the matter to the court to be dealt with with as contempt of court. But if the Commissioner thinks that step would be unreasonable during the crisis she does not have to take it. She has discretion about whether and when to act.[1] She could defer enforcement until the pressure has eased.

Or, finally, does the decision on whether to publish a notice depend simply on whether the authority tells the ICO that it would have difficulty in complying? From the ICO’s perspective that would be a far simpler approach. But how could that be the ‘reasonable and proportionate’ response that the ICO claims to pursue? It would grant the authority an unacceptable veto over the FOI process – without necessarily helping to address the emergency. If that is happening, we urgently need to know.

Notes:

[1] Section 54(1) of FOIA says the Commissioner ‘may’ refer a failure to comply with a notice to the court, indicating discretion.

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