Archives for COVID-19

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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FOI and the pandemic

Contains public sector information licensed under the Open Government Licence v3.0.

The coronavirus pandemic has prompted calls for the FOI Act to be relaxed and led some public authorities to announce that they will stop answering FOI requests. However, pressure for FOI time limits to be formally extended has been averted, probably by the Information Commissioner’s Office’s announcement that it will not penalise public authorities for failing to meet deadlines during the crisis. Deadlines under Scotland’s FOI Act, by contrast, have been substantially relaxed.
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