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]
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.
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.
The Ministry of Justice is consulting on proposals that fees should be introduced for appeals to the Tribunal against Information Commissioner FOI decisions. The proposals would have serious implications for individual FOI requesters and the general public. However, figuring out precisely where these proposals can be found is a little tricky.
On 17th November, MPs debated John Hemming’s Transparency and Accountability Bill, which contains measures drafted by the Campaign to strengthen the public’s right to know about public services which have been contracted out.
In a remarkable decision the Information Commissioner’s Office (ICO) has ruled that an MP’s letter to a local council about its parking policy should be withheld to protect the MP’s privacy – though there is no suggestion that the letter contained anything about the MP’s personal circumstances (ICO Decision Notice FS50530093).
The Information Commissioner should clamp down on authorities which make requesters wait months before replying to their freedom of information (FOI) requests, according to the Campaign for Freedom of Information.
The Tribunal has agreed with a submission from the Campaign that the Information Commissioner was wrong to find that NHS bodies are prohibited from releasing information which they have supplied to the Health Service Ombudsman.
The Tribunal allowed the Campaign to take part in an appeal on this issue, despite the Information Commissioner’s objections. It accepted the Campaign’s arguments that a statutory bar on disclosure applied only to the Ombudsman and not to those supplying information to the Ombudsman. The Tribunal’s decision is available here
The Campaign for Freedom of Information welcomed today’s decision by the Information Commissioner that the FOI Act applies to emails dealing with government business sent from ministers’ or officials’ private email accounts. The decision follows an FOI request by the Financial Times for details of emails between the Education Secretary Michael Gove and his special advisers dealing with departmental business sent using private email accounts.
Letter to The Times responding to an article by Matthew Parris arguing that “the advance of Freedom of Information should be reversed.”