Outgoing Information Commissioner calls for FOI improvements – but minister says FOI is “truly malign”

Outgoing Information Commissioner, Elizabeth Denham, called for urgent reform of the Freedom of Information Act and more resources for her office when she gave evidence to a parliamentary committee on 25th November 2021.

The Commissioner told MPs there are “some quick fixes” that have been recommended by previous reviews of the FOI Act, such as statutory time limits for internal reviews, but there “needs to be a root-and-branch review of the legislation and…whether it is fit for purpose.” She also said it was important for ministers to ‘walk the talk’ when it comes to transparency:

“I use the example of Ministers in BEIS, who suggested that the Advanced Research and Invention Agency, the new public body, be exempt from freedom of information. That is really harmful, because that sends a message about transparency and its importance to everyone who works in that Department. I think that is a serious issue. Ministers and those at the top of public bodies have a huge influence on whether their staff embrace the spirit of transparency in their work.”

However, only 72 hours earlier the government’s deep dislike of FOI had become ominously apparent. Lord Callanan, a minister in the Department for Business, Energy and Industrial Strategy, revealed what he really thinks about FOI during a debate on the Advanced Research and Invention Agency Bill.

Defending ARIA’s exemption from FOI, he told peers that he did not think FOI “achieves anything at all”, that government FOI officers did nothing but respond to “fishing expeditions”, that charging fees for requests “is an excellent idea” and, astonishingly, that FOI is “a truly malign piece of legislation”. No minister has ever referred to FOI with such undisguised contempt. We might hope for ministerial support for FOI. But this refusal to see any value at all in FOI suggests attacks on it are more likely.

New Commissioner must prioritise FOI enforcement

In her evidence to MPs, Ms Denham admitted that FOI compliance by government had deteriorated during her tenure:

“At the local level it is working fairly well but when it comes to some of the more complex or politically sensitive requests the timeliness has deteriorated, and the general openness and responses have also deteriorated over this time.”

Why is this? One factor may be the lack of robust enforcement.

The ICO has 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 significantly overdue requests by a specified deadline – unlike a decision notice, which can only deal with an individual request. Enforcement notices have been used only twice to address delays in the 16 years since FOIA’s introduction. This is inexplicable given the chronic problem of heavily overdue requests.

Asked whether enforcement notices were useful, Ms Denham replied:

“We have used enforcement notices in the past. However, remember that our funding has been cut by 40% since 2010. For us to take enforcement action we have to have the resources—the legal resources—to be ready for litigation. It is not a light decision to take. I think that if we had more resources, we would be able to do more.”

Is it purely a problem of resources? In early 2019 the Commissioner announced “an increase in enforcement” in the coming months with enforcement notices used “for central government departments”. ICO documents released under FOI show that before the pandemic it was finally acting on this problem, despite its reduced funding.

What’s changed?

Following the pandemic the ICO has a huge backlog of complaints and is currently taking almost a year to start investigating many of them. Its Head of FOI Complaints and Appeals, who appeared alongside the Commissioner at the committee, told MPs:

“We got reset—got knocked back six months. We have got back to a position now of pre-pandemic output, but that is trailing the input, because cases continue to come through the door at significant levels, so we are just catching back up. We are just not finding the capacity to see that overlap and get back to that level.”

Yet without the ICO taking a more vigorous and highly visible approach it’s difficult to see how delays can be addressed. The Commissioner suggested that the problem is that it cannot insist on auditing an authority’s FOI practice without its consent and therefore does not know whether an enforcement notice would be justified. The Cabinet Office had rejected the ICO’s offer of a voluntary audit of its FOI Clearing House. The Commissioner told MPs “if we are not able to go in, because we do not have compulsory audit powers to look at it, then how could we use an enforcement notice?”

But the ICO does not need to start with an audit. This is a slow process, heavily demanding of ICO time. It knows, from its own complaint handling, which authorities are causing long delays. It could simply serve a legally binding information notice requiring an authority to provide details of its backlog. Where appropriate this could be followed by an enforcement notice requiring an authority to address, by a set deadline, all substantially overdue requests.

New audit powers would strengthen the ICO’s hand. But if it puts off dealing with chronic delays till it has them, the problem will only get worse.

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