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ICO FOI caseload up 43% since start of pandemic

The Information Commissioner’s Office has released a spreadsheet of its open FOI casework in response to a FOI request by the Campaign.

It shows the ICO currently has 1,748 open complaints, an increase of 43% since the start of the pandemic.[1],[2] Of the current caseload:

  • 42% (726) of the complaints were received before 1 January 2021
  • 22 date back to 2019
  • the oldest complaint was received on 24 April 2019 and is now more than 2 years and 2 months old.


The disclosed data does not show what information was requested in each case. The ICO says it can’t provide this as it doesn’t hold it on its system. [3] It also says it can’t provide the dates cases were assigned to a case officer “as often cases are transferred between case officers and our system does not record this accurately.”

However, the status of the 1,748 complaints is as follows:

  • 67% (1,172) ‘investigation’
  • 21% (372) ‘received’
  • 5% (80) ‘in progress’
  • 4% (62) ‘awaiting further evidence’
  • 4% (62) ‘case officer review’

We have sought clarification of these categories from the ICO.

It’s no surprise that the public authority with the most ICO complaints is the Cabinet Office – it received 7% of the FOI requests made to government departments in 2020 but accounts for 20% of ICO complaints involving them, suggesting a high level of dissatisfaction with its FOI performance.[4] The Cabinet Office’s significant failings were recently highlighted by the First-tier Tribunal in Cabinet Office v ICO and Corderoy (EA/2020/0240). Following this case, a parliamentary committee is expected to investigate its FOI role later this year.[5]

The Cabinet Office is followed by a number of other departments and the ICO itself, which also appears high on the list.

Public authorities with the most ICO FOI complaints
Cabinet Office 78
Department of Health & Social Care 70
Ministry of Justice 49
Department for Work and Pensions 43
Home Office 28
Metropolitan Police 28
Foreign, Commonwealth & Development Office [6] 25
Highways England 19
Information Commissioner 19
BBC 17
London Borough of Lambeth 17
Ministry of Defence 17
Department for Business, Energy & Industrial Strategy 16
HM Revenue and Customs 16
Department for Education 14
HM Treasury 14
London Borough of Southwark 14
London Borough of Waltham Forest 13
NHS England 13
Crown Prosecution Service 12
Ministry of Housing, Communities and Local government 12
Sheffield City Council 12
Welsh Government 12
Charity Commission 11
West Yorkshire Police 11
Westminster City Council 11

How long is the ICO taking?

We also asked the ICO for details of the cases it has closed each month. The ICO has been committed to publishing this data “every three months” but has not done so since March 2019. The ICO refused our request for these datasets citing the FOI exemption for future publication. This only applies if the authority had already intended to publish the information in the future, if it is reasonable to withhold it until the planned publication date and if the public interest favours withholding it until then. Somewhat ironically, the ICO cited its “history of publishing this information on a regular basis” as a factor in favour of withholding it. However, it did say it hopes to publish the data “within the next month”.

Need for greater ICO transparency

Delays in the FOI process are a major problem facing requesters. They occur at each stage of the FOI process, including the ICO investigation stage.[7] Apart from summary data in its an annual report, the ICO publishes no detailed information about its complaint handling performance. In contrast, the office of the Scottish Information Commissioner publishes the list of complaints it is currently investigating and a ‘dashboard’ of caseload and investigations performance statistics every month.

The irregular and long delayed publication of ICO data on its caseload and complaints handling makes it hard to assess the ICO’s performance. Its ‘Openness by Design’ strategy emphasised that “Services that are accountable and transparent are better public services”.[8] The ICO needs to do much more to meet that objective.

Notes

[1] The ICO’s Annual Report 2019-20 states that the FOI caseload was 1,222 on 31 March 2020. The first lockdown began on 23 March 2020.

[2] At the beginning of the pandemic the ICO announced that it would not penalise public authorities for failing to meet FOI deadlines and deferred issuing some decision notices that were ready to be published.

[3] This information was included when the ICO previously disclosed a list of its FOI caseload, but the case management system it uses has changed.

[4] 395 of the 1,748 complaints involve government departments, of which 78 involve the Cabinet Office. In 2020, 30,592 FOI requests were made to government departments, of which 2,210 were made to the Cabinet Office.

[5] Open Democracy, UK Parliament to investigate Michael Gove’s ‘Orwellian’ FOI unit, 15 June 2021

[6] Includes 11 cases involving the Foreign & Commonwealth Office and 14 involving the Foreign, Commonwealth & Development Office, after the Foreign & Commonwealth Office merged with the Department for International Development.

[7] For more information about delays in the FOI process see the Campaign’s May 2021 submission to the Public Administration and Constitutional Affairs Committee’s inquiry into Propriety of Governance in light of Greensill.

[8] https://ico.org.uk/media/2615190/openness_by_-design_strategy_201906.pdf

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