FOI enforcement: The four Enforcement Notices issued in 10 years

You probably missed it but something very rare has happened in the world of the Freedom of Information Act. An enforcement notice was issued by the regulator. 

It doesn’t sound like a big deal but it’s so rare that in 10 years of the FOI Act there has only been four of the notices issued by the Information Commissioner’s Office (ICO).

The Department of Finance and Personnel for Northern Ireland (DFPNI) was the latest victim and was ordered to answer four FOI requests that are more than six months old.

Considering that there are around 100,000 public authorities covered by the Act and thousands of FOI requests sent to these each year – around 50,000 just to central government – the infrequency of enforcement notices is noticeable. It’s equally as noticeable as they aren’t listed anywhere easily accessible.

The ICO doesn’t list all four of enforcement notices it has issued on its website – although it does list Data Protection Act enforcement notices. 

So we’ve trawled back into the archives to pull out all of the enforcement notices that have been issued. All of the enforcement notices are detailed below, alongside the documents of their notices.

Enforcement action?

While this post isn’t intended to question whether the ICO uses its FOI enforcement powers it is worth detailing some concerns that exist.

The ICO has the power to issue enforcement notices when public authorities are failing to respond to FOI requests in accordance with the law. This can be when they are failing to respond within 20 working days, outlined by Section 10 of the Act, as was the case with DFPNI. An enforcement notice can be followed up with the ICO making a case at the High Court.

Much has been written about the apparent lack of enforcement conducted by the ICO (see here, here and here).

Each time the question is raised the ICO says it has issued more than 6,000 Decision Notices, which it is obliged to by law, and the Information Commissioner told me last year (for my book) that he gets access to all the senior officials in private and has to carefully decide when to “press the nuclear button”.

As has been pointed out there’s at least one more government department with a record that’s on par with the DFPNI, which has not been subject to an enforcement notice.

Questions can also be raised surrounding the response rate of other public authorities – including this one. More details can be found on the timelines and response rates of central government departments in the Ministry of Justice’s quarterly published figures. 

The law

The purposes of an enforcement notice is to tell public authorities that they have to comply with the obligations that the FOI legislation imposed upon them (the prime ones being to tell requesters if they hold what has been asked for and to provide the information, if it is not exempt, within 20 working days).

The ability to make this type of notice if given to the ICO thorough Section 52 of the Act. 

It says:

Differing types of ‘enforcement’ action that can be taken by the ICO include information notices – which, require the public authority to provide the information – and putting public authorities on a monitoring list. 

Here are the four Enforcement Notices which have been issued by the Information Commissioner’s Office: 

Allerdale Borough Council: 2003

The first time the ICO sought to use its FOI enforcement powers was under the Information Commissioner Richard Thomas, who oversaw the commencement of the FOI Act. The enforcement notice was issued surrounding the publication scheme, which all authorities are required to have – so it wasn’t even about an FOI request.

As far as I could tell there was no record of this enforcement notice being available online, so the only way to get a copy was via an FOI request (talk about having to go the long way around…)

@ICOnews Hi, do you have a copy of the 2004 Enforcement Notice issued to Allerdale Borough Council? Can’t find it on archived pages.

— Matt Burgess (@mattburgess1) June 15, 2015

Nevertheless, the notice was eventually published.

It sets out that the council did not meet the 28th February 2003 date for adopting a publication scheme – the part of the FOI Act which requires authorities to say what basic information they have, i.e. structures, and then publish it proactively.

The council was told that it has to submit a publication scheme to the ICO within 28 working days, or the office could take the council to court.

This early case is also the only case where the ICO has made a complaint to the High Court, under its powers, about a public authority not fulfilling its FOI obligations. (It didn’t provide the publication scheme in the 28 days).

Unfortunately for the ICO its appeal was dismissed, which might explain why the authority hasn’t pursued this avenue in the 10+ years since it last tried.

The situation was explained by the response to this FOI request made on WhatDoTheyKnow.com:

Law Officers: 2006

The second enforcement notice issued by the ICO was issued to the Legal Secretariat to the Law Officers over the body’s failure to respond to respond a number of requests. The notice says:

In particular, the information requested was around the legal advice given by the Attorney General. to the government, on the legality of the war.

The 30 page notice by the Commissioner, which is substantially longer than the Allerdale notice, looks at the exemptions which were applied to the information that was withheld. This included the balance of the public interest in disclosure and considered the circumstances of other relevant information to the Iraq war being made public.

The Commissioner told the Law Officers that it should “prepare a Disclosure Statement setting out the substance of all the recorded material” and include the “substance of those parts of certain documents” that fall within the outlined parameters. 

The disclosure statement can be found here on the national archives website. 

Independent Police Complaints Commission: 2010

The IPCC was the next authority to feel the wrath of the ICO’s enforcement notices – albeit another fourth years after the Law Officers decision.

This enforcement notice told the body that it must answer a large number of FOI requests which it had outstanding.

The ICO continued to say that the IPCC had “repeatedly failed to respnd to requests for information within the statuatory time limits”. Therefore the Enforcement Notice was issued due to Section 10 failures. A time limit was put on when the IPCC had to respond to all of the requests by.

Department of Finance and Personnel for Northern Ireland: 2015

And, that brings us to the most recent Enforcement Notice – another five years down the line.

This one, was issued to Department of Finance and Personnel for Northern Ireland, and its inability to respond to requests.

The Commissioner had identified a number of requests which were outstanding – going back to as far as 2011. This followed meetings with the department and the ICO telling them the letters had to be published by a certain date. The date passed and the Enforcement Notice said:

Here’s the Enforcement Notice:

I’ll endeavor to keep this list updated when/if new Enforcement Notices are issued… so be sure to check back in 2020.