Analysis – What’s up with the information commissioner?
FOIA Centre News, 22 March 2006
As pending FOIA complaints reach 1,500, Heather Brooke explains how the regulator needs to sharpen up its act
MPs subjected the information commissioner, Richard Thomas, to tough questioning at a parliamentary select committee hearing. The constitutional affairs committee is reviewing how he has regulated the Freedom of Information Act (FOIA) during its first year of full implementation.
And it was unimpressed with his reasoning that the mounting backlog at his office was due to the “complexity and lack of tidiness” of cases received. He said that the office has around 1,500 complaints yet to be resolved, some 700 of which he described as a “backlog”.
Thomas also claimed that he had received more cases than expected. However, MPs recalled that when he gave evidence in 2004 he predicted a caseload of between 2,000 and 3,000, which accurately predicted his actual caseload of 2,385 for 2005.
The chairman of the committee, Alan Beith, Liberal Democrat MP for Berwick-upon-Tweed, said: “You’re obviously a lot better at predicting then you are at preparing for the situation you predict.”
During the testimony earlier this month, it became clear that untidiness was the least of the commissioner’s problems. He was hamstrung by a lack of funding from the Department for Constitutional Affairs. Thomas said that his request for an extra £1 million, on top of the regulator’s basic annual funding of £5 million, for the financial year beginning next month – specifically to clear the complaints backlog by March 2007 – was only answered the day before he testified. Even then, the department failed to say how much extra money would be available.
The department also set annual salary caps at £15,000 for investigators and £25,000 for senior staff, he said, making it difficult to retain quality staff. These are real factors that prevent Thomas from doing his job properly. But why did he not mention them straightaway instead of blaming the hapless public? If requestors provided incomplete complaints, this is mainly because the regulator failed until a few months ago to provide a form and checklist.
This unwillingness to stand up to government is, I believe, the crucial problem at the Office of the Information Commissioner. Thomas must see himself as an advocate for the people, not just another civil servant. And, to that end, he must lobby to be free from Government control and funded directly from Parliament. The commissioner’s first year has been an example of how not to run a regulatory body. His enforcement of the law has been woefully weak. The massive delays and poor communication from his office have discouraged those who put cases to him in the hope that he would live up to his rhetoric about changing the culture of secrecy in the UK.
Instead, his timidity has strengthened the secrecy status quo. One especially absurd aspect of the commissioner’s performance last year was his bizarre policy to try to keep his rulings on complaints secret. For a month in May 2005, the commissioner’s office refused to publish its first “decision notices”. I was forced to file a FOIA request in June in an attempt to obtain them. In response, I received a brief summary of the first 11 decisions and posted them on the ‘Your Right to Know’ website.
The next day, Thomas told a conference in Lon-don: “Perhaps we were a little nervous before in not publishing,” adding, “but we’re changing our policy and I’m announcing today that summaries of all our decisions will be published online, 48 hours after they are made.”
Meanwhile, the regulator refused to publish a list of cases under review. By contrast, the Scottish information commissioner, Kevin Dunion, has such a list on his website. The Information Tribunal, to which notices by the information commissioner can be appealed, also publishes on its website a list of pending cases. I added this to my FOIA request of June, but the full answer did not come until more than a month after the statutory deadline. The delay was caused, I was told, because the information commissioner’s office had misunderstood my request for “all complaints received” to mean some of the cases received.
Despite repeated requests from the Society of Editors, journalists and activists, the regulator still does not proactively publish its caseload. This is a shame because the database is the only empirical way to monitor the commissioner’s performance. I have published the caseload data from August 4, 2005 and March 14, 2006 on my website, but this should be on the information commissioner’s website. Unlike the regulator, I am not in receipt of a multi-million-pound budget. Before FOIA came fully into force, Thomas said that he would send out a strong signal that disobeying the law would not be tolerated.
A year later, I am still waiting for that signal. Decisions were slow in coming and weak when they finally came. Few have ruled for greater openness. Hundreds of public bodies are ignoring the deadline of 20 working days, while the regulator fails to take action. As little power as the commissioner has, he failed to issue a single practice notice against the many poorly performing public bodies.
The way to turn around the failing regulator is obvious:
- get tough with negligent public bodies;
- publish online a regularly updated version of its caseload;
- set time limits for resolving cases;
- expedite cases that set precedents;
- communicate regularly with complainants and public bodies;
- shame those public bodies that refuse to co-operate with the regulator.
I give this advice for free. The regulator, however, has seen fit to pay PA Consulting £100,000 for a critique of its performance. The Department for Constitutional Affairs may be reluctant to pay for more staff to clear the backlog, but it is happy for public money to be paid to a private company to state the obvious.
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