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.
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 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.
If the Commissioner is satisfied that a public authority has failed to comply with any of the requirements of Part I, the Commissioner may serve the authority with a notice (in this Act referred to as “an enforcement notice”) requiring the authority to take, within such time as may be specified in the notice, such steps as may be so specified for complying with those requirements.
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:
This was a case in 2004 concerning Allerdale Borough Council. The ICO served an Enforcement Notice requiring the Council to adopt a publication scheme in accordance with section 19 of the FOIA which they failed to do within the time specified. We then certified in writing to the High Court under section 54 of the FOIA that the Council had not complied with the Enforcement Notice within the time specified. The case was heard by the High Court in Chester but dismissed (Claim No: 4MC 00507) on 24 June 2004.
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:
“The requests sought access to information relating to the advice given by the Attorney General to the Prime Minister and/or his staff on the legality of military intervention in Iraq in 2003″
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 IPCC confirmed to the Commissioner that it had a backlog of 72 requests, 69 of which were ‘out of time’. In addition to this backlog, the Commissioner was aware that he had received nine complaints under section 50 of the Act which identified a failure to respond to requests for information within the statutory time limits, four of which remained outstanding at the time of drafting this notice.
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:
On 2 June 2015 the DFP confirmed that those requests for information identified in Annex 1 of this Notice remained outstanding. Therefore, whilst the Commissioner recognises the work that the DFP has put into resolving these requests, the Commissioner considers it necessary to issue this Notice.
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.