Information Commissioner: Delay and Indecision

I have uploaded the caseload database from the Information Commissioner’s Office, which I received 4 August 2005.

It was quite a long process getting this database. Originally, in response to my 1 June 2005 FOIA request for ‘all complaints’ I was given a database containing just 375 entries. I knew from attending conferences that the Information Commissioner’s Office was already up to 1,000 complaints when I made my request, so I telephoned and discovered they had misinterpreted in an overly restrictive way. They agreed to send me the outstanding information in electronic form.

I admit I could have got the data up here a bit sooner, but why is it up to me to do this? The Commissioner’s Office should:
a) have this data online at all times and accessibly to the public.
b) if they didn’t have it before they at least had the data they gave me – why didn’t they publish it on their own website?

Many of the cases on the database are from February and March 2005. Anything from this time period is definitely overdue and it’s worth pointing out that the Scottish Information Commissioner has a policy of closing all investigations within four months.

It’s particularly noticeable that most of these decisions are being made not against the big government departments, but against small authorities. Where decisions have been made, evidence is mounting that far from ushering in a new era of openness, the Commissioner is protecting the secrecy status quo.

Delay is not the only sign the Information Commissioner is letting down the public. The Commissioner is failing to make decisions. Only two orders for disclosure have been made so far and both were against local councils, not central government. One, Bridgnorth District Council in Shropshire, was ordered to release council files in a land dispute. The other, Corby Borough Council, was told to give a complainant details of how much was paid to a temporarily employed finance officer.

In all other cases, ranging from a list of the revenue generated by speed cameras to information about how council tax bands are calculated, the Information Commissioner has sided with the public authority, or simply declared that a refusal notice had not been properly issued.

Strictly speaking, complaints against 23 authorities have been upheld, but the majority of these are cases in which the commissioner has ruled that the refusal to release information was not issued according to the letter of the law or the council has misinterpreted the request being made of it.

Some decisions have highlighted the impotence of the Commissioner. One district council, for example, ignored a citizen who asked for information and then went on to ignore the Commissioner, too, when he tried to investigate the case. Westminster City Council incorrectly told a citizen that the FOI Act did not cover the maintenance of pavements by the council.

The Commissioner did not order this information released, but instead could only order that the council consider the request under the new law and if they refuse the request, to do so in the proper legal format.

Where a complainant’s account differs with that of a public authority, the Commissioner seems to give the benefit of the doubt to the public authority. For instance, he accepted that the Human Fertilisation & Embryology Authority “complied with the Act in posting a response to the complainant within 20 days, even though the complainant stated such a letter was never received”.

A decision against the Cabinet Office after it failed to respond within the 20 working days was upheld, but “as the Cabinet Office subsequently did respond, the Decision Notice did not identify any steps to be taken”. In other words, nothing was done about what was a purely technical breach of the act’s wording.

It is not clear if the Cabinet Office’s “response” was to grant the request (for information about emails sent by and to Andrew Adonis, now Lord Adonis), or as seems more likely, to refuse it.

2 Responses to “Information Commissioner: Delay and Indecision”

  1. N Louis says:

    Whether you consider them discretionary or not, what all this really shows is that the qualified exemptions in the FOI Act need to be repealed. So when no absolute exemption applies to an FOI request then a mandatory release of all the information has to be made without any appeals to the public authority and the Information Commissioner’s Office.

    It’s clear public authorities are not going to voluntarily release information requested, if they can easily avoid doing so by using qualified exemptions in sections 35 and 36.

    Therefore unless the law makes it clear that they have to release the information for all FOI requests when no absolute exemption applies, then you will continue to get this problem with them.

  2. John Lincoln Lee says:

    Loved the story about Westminster Council claiming that the FOI Act did not cover the maintenance of pavements by the council.

    Having had some exeperience of FoI in a local Council, I suspect this incident actually illustrates the weakness in arrangements for handling FoI at operational level rather than the Council itself seeking to withold information. The person handling the request was probably a relatively low paid administrative member of staff who resented his or her new responsibility for handling FoI requests and was basically trying to get out of doing the work.

    In the council I worked for, I’ve actually witnessed staff throw handwritten or typed FoI requests straight into the bin as a means of getting out doing the work. This is risky if it’s a journalist or solicitor making the request (i.e. people who will be getting paid to do the chasing) , but your average member of the public may not have enough time and in some cases the confidence to chase requests after they’ve been submitted.

    For an organisation to truly committ itself to FoI it needs to ensure all operational managers are fully aware of their rsponsibilities. Sadly, FoI is often seen as no more than a bit of a nuisance and someone else’s responsibility.

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