Robust approach to FOI time limits stalled by pandemic

For some time, the Campaign has been calling on the Information Commissioner’s Office (ICO) to use its power to issue enforcement notices against authorities which repeatedly breach the Freedom of Information Act’s time limits.[1] An enforcement notice could require an authority to reply to all outstanding FOI requests by a specified deadline – unlike a decision notice, which can only deal with an individual request. The ICO has only issued 4 enforcement notices since the FOI Act came into force in 2005 and only 2 of these relate to compliance with time limits.[2]

Now, in response to an FOI request, the ICO has revealed that before the pandemic, it was moving towards using enforcement notices in this way – a welcome development.[3]


In January 2020 it proposed issuing an enforcement notice against the Metropolitan Police, requiring it to clear all requests over 6 months old by 31 March 2020. The same month, an enforcement notice was drafted against another unidentified ‘police and justice’ sector body, presumably a police force.

In November 2019 an enforcement notice was drafted against a third police force, which had 900 outstanding requests 3 months earlier. Because of significant improvements it was not issued.[4] It’s possible this authority was Cumbria Police. A progress report from September 2019 reveals that an enforcement notice was “under consideration” against the Cumbria force.

An ICO September 2019 progress report reveals that an enforcement notice was also being considered against the London Borough of Croydon. There was also “continuing engagement” with the Home Office and Department for Education over the lateness of their FOI replies. The ICO had asked five other government departments (Department for Business, Energy and Industrial Strategy; Ministry of Defence; Department for International Trade; Government Legal Department; and the Ministry of Housing, Communities and Local Government), 7 police forces and 20 London Boroughs to draw up ‘Action plans’ to answer more FOI requests on time. [5]

A later progress report, proposed that 5 government departments, 11 police forces and 22 London Boroughs should be monitored because of failure to meet time limits.

The ICO had also produced ‘Regulatory Action Decision Reports’ on 5 police forces and 3 London Boroughs, two reports on good practice and an outline report on the police sector. None have been published.[6]

Although the ICO’s response says that the authorities are not being named, some are identified in unredacted versions of duplicate documents released at the same time. If the ICO had published these reports it would have increased pressure for improvements and confidence in the ICO. The details refer to quarters 2 and 3 of 2019/20. More recent details are not available.

The disclosures show that the ICO had at last been proposing a robust FOI enforcement approach. The pandemic appears to have brought it to a halt. Its May 2020 FOI response providing these details states that the approach was changed “this month”, is now “out of date” and that the ICO will now “be concentrating on producing thematic reports, our FOI self-assessment toolkit, and sharing good practice”. Whilst it is understandable that a new enforcement approach would not be introduced at the height of the pandemic, when some authorities are under particular pressure, a robust approach to enforcing FOI time limits is long overdue – and should be reinstated as soon as feasible.

Notes:

[1] See, in particular, FOI Good Practice: A survey of London local authorities (pages 16-18 on ‘The Information Commissioner’s role’) and  Response to the ICO’s call for comments on its draft ‘Regulatory Action Policy’.

[2] Details of the 4 enforcement notices to date are here.

[3] The request of 19th December 2019 and ICO’s response of 27th May 2020 can be viewed here.

[4] Details of the draft enforcement notice against an authority in the police and justice sector and the proposed enforcement notice against the Metropolitan Police are contained in the disclosed file named ‘FOR DISCLOSURE Redacted worksheet 1 activity in IC csv.csv’. The names of the authorities have been redacted from this file, but presumably ‘MPS’ in the further details column refers to the Metropolitan Police.

[5] These details are contained in the Insight and Compliance progress report for Q2 2019/2020 at 11 September 2019. Although the names of the authorities have been redacted from the version of this document with the file name ‘FOR DISCLOSURE Insight and Compliance Q2 2019.pdf’, an unredacted version is appended at the end of ‘FOR DISCLOSURE Insight and Compliance Aims and Activites.pdf’

[6] These details are contained in the Insight and Compliance progress report for Q3 2019/20.

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