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Campaign’s evidence to Greensill inquiry calls for FOIA to be strengthened

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The Campaign has submitted evidence to the Public Administration and Constitutional Affairs Committee’s inquiry into the propriety of governance in light of Greensill.

It says that without FOIA the extent of the company’s efforts to persuade the government to provide it with financial support, and the extraordinarily insistent lobbying by the former prime minister David Cameron may not have been uncovered, let alone documented in such detail.

It adds that FOIA contains the elements of a highly effective tool to probe lobbying but it needs to be strengthened and more vigorously enforced.

The submission highlights three specific issues that need to be addressed to improve the Act’s effectiveness:

  1. The Act’s limited application to information held by public sector contractors.
  2. Government plans to exclude two proposed new public authorities from FOIA, a move which suggests that more may follow.
  3. The substantial delays in responding to FOI requests, preventing the timely release of information.

FOIA delays

The submission contains a new survey of the delays at each stage of the FOI process.

We examined the time taken to deal with the last 20 FOIA or EIR tribunal cases involving central government departments dealt with by the First-tier Tribunal before the first pandemic lockdown in March 2020.  This excluded delays resulting from the lockdown itself.

We found:

  • Departments took up to 610 working days (a staggering two and a half years) for their initial response to FOI requests.
  • Only 9 of the 20 requests were answered within the standard 20 working day period.
  • The longest time between making the request and receiving a tribunal decision (after a challenge to the Commissioner’s decision) was four years and nine months. The average was about two years.

The survey illustrates how common and significant delays were even before the pandemic. The cases surveyed show that FOI time limits were breached by government departments more often than they were complied with. A department that deliberately sought to avoid releasing contentious information at a sensitive time would barely stand out against the backdrop of routine delays.

Authorities may be unconcerned about breaching time limits, having observed the lack of repercussions for those who do so. A 2019 tribunal decision referred to an ICO investigation which had been ‘hampered by delays on the part of the Cabinet Office which bordered on the contemptuous’. Such delays led the ICO to serve no less than eleven legally binding Information Notices on the Cabinet Office in 2019 (more than the total served on all other public authorities). These required it to supply information to the ICO which it had previously failed to do when asked. Bizarrely, the Cabinet Office, the lead government department on FOI policy, says of itself that it:

‘plays a vital role in ensuring compliance with the Freedom of Information Act across Government’

Recommendations

The submission calls for:

  • The Information Commissioner’s Office (ICO) to make use of enforcement notices – a powerful tool at its disposal which it has rarely employed.

An enforcement notice can be used to require an authority to respond to all overdue requests by a specified deadline. Although the ICO sometimes threatens the use of such notices it has, inexplicably, used them only twice to address delays in the 16 years since FOIA’s introduction.

  • Greater government funding for the ICO’s FOI work. Our analysis shows that the Scottish Information Commissioner enjoys six times more funding than the UK Commissioner on a per case basis, an indication of how underfunded the ICO is.
  • FOIA time limits to be strengthened, as recommended by two major inquiries.

Both the Justice Committee in its 2012 post-legislative review of FOIA and the 2016 report of the government appointed Independent Commission on Freedom of Information called for FOIA time limits to be tightened up to reduce delays. Implementing these long-ignored recommendations would be an important step towards ensuring that FOIA can provide effective and timely oversight of the conduct of public authorities.

Read the full submission.

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