Information watchdog targets Freedom of Information Act compliance

The Information Commissioner’s Office has focussed over the past 18 months on compliance with the Freedom of Information Act 2000. Since the start of 2023, the ICO has issued 10 enforcement notices in this area, all relating to failures to comply with requests under the Act, either in a timely manner or at all.  Although some backlogs built up over the pandemic, many predate that event and were merely compounded by the logistical issues and changes in working practices that resulted. It is safe to say that the ICO has now lost patience with authorities that fail to comply.

To root out issues and ensure intervention is targeted appropriately, the ICO has engaged in targeted sampling of performance – notably in the higher education sector – and where necessary it has engaged with institutions to highlight unacceptable performance.  Those institutions have been required to clear significant backlogs win extremely short time periods, often needing both outside assistance and significant funding to get the job done.  Public healthcare bodies should take this opportunity to review their own FOI processes and assess whether statutory time limits and other KPIs are being met. 

Understaffed and under resourced FOI departments prevent timely compliance with FOI requirements.  Corners may be cut, resulting in either inadequate or excessive disclosures – both of which outcomes heighten regulatory, litigation and reputational risk.  Failures to properly consider the applicability of exemptions can lead to expensive and time-consuming challenges, and where individual’s personal information is not properly protected can also result in breach of other laws such as the UK General Data Protection Regulation.

There has been a noticeable tightening of ICO processes over the past year.  Timelines for explaining to the ICO your reasoning for applying an exemption can be extremely short – a matter of mere days. To ensure that a public authority can put forward a comprehensive and well-reasoned argument for any refusal to disclose its decisions need to have been thorough and well-documented before the ICO gets involved.

Mistakes in the application of exemptions may be made but are less likely where processes have been followed by an experienced and well-resourced team.  If a mistake does come to light, authorities should be willing to revise their position independently to forestall complaints.  At a minimum, authorities should ensure that they are able to respond swiftly to any ICO direction to disclose information.

In a recent update, Warren Seddon, ICO Director of Freedom of Information and Transparency announced that the ICO has been working to develop a process for using its powers to refer a public authority for contempt of court if they fail to comply with a statutory decision or notice.  He noted that the power has never been used in practice and compliance is usually very good, but the ICO wishes to be prepared to use this option if it considers it necessary.

Do get in touch if you require support complying with your FOI requests.

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