INFORMATION COMMISSIONER AND TRIBUNAL DECISIONS - NEXT FOI CASE LAW UPDATE 6TH JUNE 2024. RESERVE YOUR PLACE NOW!

FOI enforcement and the ICO’s caseload

The Campaign has been pressing the Information Commissioner’s Office to issue enforcement notices requiring public authorities to address backlogs of overdue FOI requests for some time. 

In July 2022, the Information Commissioner, John Edwards announced that the ICO would take more systemic FOI enforcement action.  

In September 2022, the Information Commissioner’s Office issued the first FOI Enforcement Notice for 7 years, to the Department for International Trade (DIT). The Department had failed to meet FOI time limits in over 50% of FOI requests during the first quarter of 2022, the poorest compliance rate in central government. The Notice required the DIT to respond to all overdue FOI requests within 35 calendar days and introduce new measures to speed up request handling. 

The Enforcement Notice has been effective. In October, the DIT confirmed that it had replied to all outstanding requests by the deadline. It has also revised its procedure for approving FOI replies “to reduce the number of times a response is subject to review.” The final stage of this procedure had caused FOI delays. It is also in the process of complying with an ICO recommendation to ensure that internal reviews are handled in a timely manner, in accordance with the section 45 Code of Practice. 

In November John Edwards spoke at the Institute for Government. At that event we asked him if the ICO would be issuing more enforcement notices to authorities with backlogs of overdue FOI requests. He confirmed that they would:

"Are we going to issue more enforcement notices on FOI? We will is the answer"

He also acknowledged cases were taking too long to complete and said the ICO is: “committed to improving our own performance..we know that there is no silver bullet to doing this but we’re making changes where we can”. Tellingly, he said: “What we’re saying in effect is we cannot administer this law effectively in the way it was intended by its drafters”.

The ICO is currently consulting on proposals to prioritise FOI complaints where there is a clear public interest in the requested information. It aims to allocate priority cases within 4 weeks and accelerate their handling throughout. Prioritisation will be based on the public interest, the requester’s ability to raise public awareness and time sensitivity. Requests from journalists, NGOs & elected representatives may more easily qualify. There will be no appeal against prioritisation decisions. The ICO will spend less time on requests with more limited impact. Some may be rejected as frivolous if there is too little public interest to justify the resources of an investigation.

It also proposes to reject complaints alleging a request has been wrongly refused as vexatious if the authority has applied relevant ICO guidance. Where the authority has, the onus will be on the requester to show it has not been properly applied.

Swift ICO complaint handling would be an enormous prize. But the significance of requested information is not always obvious and the ICO’s decisions are not always consistent. There may be concern that some justified complaints will take longer or fall off the edge altogether under the proposals.

The Campaign will be responding to the consultation. You can submit your views until 19 December 2022. 

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