Common complaints – why the ICO is considering revamping FOI casework

A ‘perfect storm’ of factors helped create a significant backlog of information-access complaints – but the data watchdog has a plan to improve. PublicTechnology takes a closer look.

Picture Credit: Lucas Wendt/Pixabay

For an “incredibly basic” and routine public records request, Gavin Freeguard found it troublesome to obtain the information he required.

Four months after the original request to the Cabinet Office for the list of members on committees, Freeguard – a freelance consultant specialised in data and policy, and an experienced Freedom of Information requestor – said he received a refusal. After he questioned the grounds of refusal from the department, the reasoning from the Cabinet Office changed several times, Freeguard said. He eventually gave up and did not file a complaint with the Information Commissioner’s Office, the UK’s independent regulator for data protection and information rights law.

Experts and frequent requesters have noticed increasing issues, especially exacerbated by the pandemic.

Jon Baines, senior data protection expert at law firm Mishcon De Reya, said that, “in the last ten years, government departments especially realised that they didn’t have to comply, because there was no risk of non-compliance, no risk of enforcement action”.

He added that the ICO “has not been robust enough, it’s been too tolerant of lack of compliance by public authorities, there’s been an unwillingness to take enforcement action or to use enforcement powers available to the information commissioner, but coupled with that, there has been a sort of ebb and flow where the information commissioner has built up a huge backlog of [complaints] cases to deal with”.

A government spokesperson said: “This government remains fully committed to its transparency agenda, routinely disclosing information beyond its obligations under the FOI Act, and releasing more proactive publications than ever before.”

Transparency tribulations
The ICO last month opened a consultation seeking feedback from the public on how it handles and prioritises information complaints. They are looking for ways to improve Freedom of Information casework services so information rights work more effectively than at present.

“The present system means cases are taking a long time to complete, which ultimately hinders the delivery of effective transparency and open government,” the watchdog said.

Year in which information-access rights came into effect

Number of FOI complaints resolved by the ICO each year

Four weeks
Timeframe in which priority cases will be assigned, under ICO proposals

Proportion of complaints the regulator aims to close within six months

Part of the problem is that the ICO still partially delivers the same service as in 2005, when information-access rights came into effect, according to Warren Seddon, ICO director of FOI and transparency.

Simultaneously, there has been a “pretty significant increase” in the number of the complaints, and requesters have also become more sophisticated over the past seventeen years, so requests are more complicated, Freeguard said.

Currently, there is a “perfect storm” of limited funding, an increase in FOI caseload for the ICO and the “increased need to support stretched public authorities”, according to the data-protection regulator.

Baines said that, for those seeking support from the ICO in ensuring public bodies fulfil their transparency obligations, “in the last three or four years it had gotten really bad”.

“If you had made an FOI request to a public authority, and you wanted a determination from the information commissioner, which is your statutory right—their statutory obligation—at one point it was a 12-month waiting list before they would even pick a case up to look at it,” he added.

Priority cases
The ICO has set criteria for the consultation – which closes on 19 December – including questions regarding the public interest value of FOIs, effect on vulnerable groups, and operational benefits.

“What we’re talking about is an improved quality of service for everyone,” said Seddon. “There will also be more stringent deadlines set for prioritised cases.”

“The ICO has been too tolerant of lack of compliance by public authorities, and there’s been an unwillingness to take enforcement action or to use the powers available.”
Jon Baines, Mishcon de Reya

The proposed changes would mean the ICO will attempt to allocate priority cases within four weeks and complete 90% of all cases within six months, including complaints made under the FOI Act and the Environmental Information Regulations.

However, this prioritisation does not mean predetermination of the outcome of cases in the system. According to Seddon, caseworkers will facilitate objective decision making.

“The criteria are fairly straightforward and easy to interpret, and we also have really experienced caseworkers who have been doing this for a long time, and when new caseworkers come in, we have buddy systems and mentor systems that we set up to help people understand.”

Currently, the ICO is working through case backlog from during the pandemic, which has decreased by 2,100 over the summer, to 1,500 now, with a goal of 1,000 by March. After clearing out most of the case backlog, the ICO will implement the prioritisation plan, including consultation input. Seddon said the ICO plans to do this within their existing resources.

“This isn’t about needing more resources now, this is about using the resources that we do have as effectively as possible.”

Clearing the backlog
This consultation on prioritising access is one of the first outcomes of ICO25, a three-year plan created by ICO which has four set objectives: safeguard and empower people; empower reasonable innovation and sustainable growth; promote openness and transparency; and continuously develop the ICO’s culture, capacity and capability.

The consultation is one of the first attempts by the ICO to address their ‘openness and transparency’ objective. This proposal is ICO’s attempt to mitigate current issues in the system while they work through the caseload backlog, try to bring response times down and “improve performance of public authorities.” ICO resolves more than 6,000 FOI complaints each year.

According to Freeguard, the prioritisation proposal is the ICO “starting to grip the various problems around FOI”.

The improvements in recent months include a “considerably shorter time in the allocation of cases”, soft-enforcement action and practice recommendations issued to some public authorities, Baines said. He gives much of the credit to new UK information commissioner, John Edwards, who began his term in January.

“In the last few months more definitely seen a more proactive and positive approach from ICO and the government,” Baines said.

Katherine Hapgood

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