Campaigns

Drop in ICO enforcement action

A sharp drop in the Information Commissioner’s FOI enforcement action since the pandemic is revealed by an analysis of decision notices.

The Campaign’s analysis looked at decision notices published in the two full months both before and after the lockdown.

  • In January and February 2020 the ICO ordered public authorities to take substantive action in 32% of decisions (67 out of 212) published during this 2-month period.
  • But only 5% of decision notices (6 out of 116) published in April and May 2020 after the lockdown required substantive action.[1] The lockdown started on March 23.

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Delayed decision notices raise more questions

We have previously described the Information Commissioner’s policy of delaying the release of some decision notices, to reduce the burden on public authorities during the pandemic. A new example raises further questions about this approach.
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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]

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Deferring decision notices

The Information Commissioner’s Office appears to be delaying the issue of decision notices in at least some FOI cases. The aim is to reduce new appeals to the tribunal and the burden on public authorities who would have to respond to them.

The Information Commissioner’s Office has written to a requester saying that his complaint has not been upheld, adding:

“the Commissioner proposes to close this case informally. Should you wish to challenge this decision at the First Tier Tribunal, please let me know and a decision notice will be prepared.

Please note, however, that in order to not place undue burden on public authorities and the Tribunal during the Covid-19 pandemic, the Commissioner will not issue this decision notice immediately and will wait until such time she considers appropriate.”

This case related to an FOI request for the Intelligence and Security Committee’s (ISC) report on possible Russian interference in the 2016 Brexit referendum. The Cabinet Office had initially refused it on the grounds that the report was due to be published in future and was therefore exempt under section 22 of FOIA. In fact, the government is only committed to publishing a redacted version of the report which means that the redacted passages could not be withheld under this exemption. During the ICO investigation the Cabinet Office applied section 23 of the Act to the whole report. This is an absolute exemption applying to information relating to or supplied by specified security bodies, including the ISC.

At the date of writing the ICO had published 34 decision notices on its web site dated between 1 and 17 April 2020, nearly all of which could lead to tribunal appeals. All have been issued since the ICO’s new policy of not penalising authorities for failing to meet FOI deadlines during the pandemic. It’s not clear whether the delaying of the above decision notice represents a new approach which will apply to all decisions for the time being or whether it is being applied in selected cases only, and if so on what basis – and whether it will apply to potentially urgent requests relating to the pandemic itself.

If it is necessary to protect authorities from FOI appeals so as not to divert them from responding to the pandemic, this should be done by the tribunal which has already deferred all existing FOI appeals by two months. The tribunal can also can extend the time limits for individual cases if asked to. It should not be necessary for the ICO to withhold decision notices from the public.

[Note: This piece was amended shortly after initial publication on 29 April 2020 by adding the final paragraph]

ICO approach to FOI delays during COVID-19

In an article published on the 6th April we discussed the Information Commissioner’s announcement that it would not penalise public authorities for failing to meet FOI deadlines during the coronavirus pandemic.

The ICO’s response to a complaint submitted on 6 March 2020 provides an insight into how it is dealing with complaints about delay during the crisis.
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Restrictions on the disclosure of information in Environment Bill

The Campaign has produced a briefing for MPs for the second reading of the Environment Bill in the House of Commons on 26th February 2020.

We are concerned at the restrictions on disclosure of information in the bill:

  • The bill establishes the Office for Environmental Protection (OEP) but contains broad prohibitions on the disclosure of information about some of the OEP’s functions. The Explanatory Notes say these prohibitions do not affect the public’s right to information under the Environmental Information Regulations (EIR) except in one specified way. However, nothing in the bill itself establishes that the prohibitions do not override the EIR right to information. The bill should be amended to ensure that the EIR right of access is not undermined.
  • The bill would prohibit disclosure of information about OEP investigations into suspected failures by public authorities to comply with environmental law. The prohibition would only be lifted once the OEP decides to take no further action. However, the status of the information in question would be changed to allow a particular EIR exception that might not otherwise apply to be invoked. This would make it more likely that the information could be withheld under the EIR. That should not be necessary. Existing EIR exceptions protect information whose disclosure is shown to be harmful and not in the public interest.
  • A prohibition would also apply to information which public bodies supply to the OEP to assist it with its functions. The information could only be disclosed with the consent of the body supplying it. If the prohibition on disclosure trumps the EIR right of access, this information could be withheld indefinitely, preventing public access to information about matters such as progress toward meeting environmental targets.

Read the full briefing.

Government retreat on Environment Bill secrecy

Following our campaign on the issue, the government has largely dropped a proposed prohibition on disclosure in the Environment Bill.

Under the bill, a new body called the Office of Environmental Protection (OEP) would investigate serious failures by public bodies to comply with environmental law. But, worryingly, the draft bill had proposed to prohibit public access to most information about the OEP’s investigations, apparently overriding the right of access under the Environmental Information Regulations (EIR).

The Campaign was the first organisation to identify this problem. After highlighting it we co-ordinated a joint letter to the Environment Secretary signed by nearly 40 national organisations objecting to the prohibition. In reply a DEFRA minister claimed that they had not intended override the right of access. Following feedback from stakeholders and “recognising the concerns you have raised in your letter” DEFRA had “worked to address this in the final Bill”.
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Briefing on secrecy in the Health Service Safety Investigations Bill

The Campaign for Freedom has produced a briefing for second reading of the Health Service Safety Investigations Bill in the House of Lords on 29th October 2019.

We are concerned about a prohibition on the disclosure of information contained in the Bill. Under the bill, the Health Service Safety Investigations Body (HSSIB) would investigate selected NHS patient safety accidents or incidents and publish a report on each investigation. But it would be prohibited from making public any other information held in connection with its functions, except in limited circumstances. The prohibition would remove the right of access under the Freedom of Information Act and the right of individuals to see their own personal data under data protection legislation. Moreover, disclosure of protected information, other than in limited circumstances, would be an offence.

The prohibition is said to be necessary:

‘to create a ‘safe space’ within which participants can provide information for the purposes of an investigation in confidence and therefore feel able to speak openly and candidly with the HSSIB.’

If the purpose was to provide a safe space for participants it might be thought that what would be protected would be information likely to identify such a person, whether by name or position or indirectly from the content of what was said. In fact the prohibition on disclosure is not limited in this way.

It applies to any information held ‘in connection with’ the HSSIB’s function that is not already published, whether or not it relates to an identifiable individual, whether or not it relates to an identifiable investigation and whether or not it is capable of deterring participants from speaking frankly to investigators, inhibiting investigators in reaching their conclusions or causing any other adverse effect at all.

We think it is disproportionate and – given the substantial protection for sensitive information in the Freedom of Information (FOI) Act – unnecessary.

Read the full briefing.

Government urged to drop post-Brexit prohibition on environmental disclosure

40 leading environmental, open government and other organisations have signed a letter, which the Campaign for Freedom of Information co-ordinated, urging the government to drop a secrecy provision from draft legislation to improve environmental protection after Brexit. The organisations say the prohibition on disclosure “is wholly at odds with the public’s right to information” under existing UK legislation.
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Secrecy under the Environment (Principles & Governance) Bill

Photo by Sarah Sigler on Unsplash

The Campaign is concerned the government is using the Draft Environment (Principles and Governance) Bill to undermine the right of access to environmental information.

The bill establishes the Office for Environmental Protection (OEP), part of whose functions is to enforce compliance by public authorities with environmental legislation. Unfortunately, that function would be subject to a statutory prohibition on disclosure which would, we believe, override the right of access under the Environmental Information Regulations (EIR).

Under the bill:

  • the OEP would be prohibited from disclosing any information it obtained from an authority which it is investigating without the authority’s consent
  • the public authority would be prohibited from disclosing information about formal action being taken against it without the OEP’s consent
  • the OEP would be required to copy its correspondence with an authority to the minister but be prohibited from disclosing the minister’s reply without the minister’s consent.

What passes between the OEP and an authority under investigation is thus suppressible by whichever side is providing the information. Ministers could intervene in enforcement matters with the benefit of total secrecy. The existing right of access could not apply to any of this information.

These bars on disclosure would all be absolute and indefinite and apply regardless of the public interest in disclosure. This is a massive contrast with the existing position under the Environmental Information Regulations (EIR) which exempts information about investigations only if disclosure is likely to be harmful and subject to a duty to disclose in the public interest.

At present, the EIR right of access takes precedence over any statutory restriction on disclosure, which would make the prohibition pointless. The government must therefore intend to reverse this, so that statutory restrictions take precedence over the EIR right of access. It hasn’t acknowledged this, but that is the only explanation. This would probably allow all statutory restrictions to override the EIR right of access in future.

The normal EIR regime would be replaced by a blanket bar on disclosure of OEP enforcement action, far more restrictive even than that under the European Commission infraction process which the OEP enforcement function partly replaces.

We set this out in evidence to the Environment, Food and Rural Affairs Committee. Read the full submission here.