The Information Commissioner’s Office, the regulator of the UK’s FOI law, has issue 1,008 decision notices in 2017. Each decision notice is in response to a valid complaint from someone appealing an FOI request they made to a public authority.
Of the complaints handled by the ICO in the 10 months of this year so far, 520 of these have been partially or completely upheld. 698 have been rejected. These decision notices cover thousands of authorities – councils, government, NHS bodies, schools, police etc – and can cover incredibly complex issues of FOI law.
There’s one FOI exemption that’s easy to judge on though: whether a request has been answered within the 20 working day period allowed by the legislation. It’s relatively clear-cut to make a decision on. Has a public body that’s been complained about answered the FOI on time? No, a Section 10 complaint can be upheld by the ICO.
From the thousand or so decision notices from the ICO this year, 302 have been about timeliness. Of these, 229 of these have been legitimate complaints. Of all the thousands of public authorities handling FOI requests across the country, there’s one that seems to stand out as getting a huge chunk of the complaints about not responding on time.
Here, we introduce the Home Office. While the department may be one of the biggest in government and receive a large number of FOI requests, the ICO has had to tell it 45 times it hasn’t answered an FOI request on time.
To hammer this point, out of 229 successful complaints about FOI requests not being answered on time, 45 of these have been the Home Office. That’s around 20% of all legitimate complaints about FOI requests not being answered on time. For more context, the Cabinet Office, which has a notoriously bad FOI reputation, has one Section 10 complaint in the whole of 2017.
So, what’s going on at the Home Office? It could be a lack of resources, it could be an overwhelming amount of FOI requests are being made to it, or it could be happening on purpose.
A quick look at the most recent decision notices issued to the Home Office show some pretty long delays. A decision published on October 3 says the initial FOI request was made on April 24, the requester “chased a response several times” and the Home Office eventually acknowledged the request on July 10, it said it would reply in August. It still hadn’t replied at the start of October.
Another instance saw an FOI request being made on February 23: the Home Office still hasn’t answered it (it said its response would come as soon as possible on March 30) and the ICO “reminded” the Home Office to answer in May. As of September 19 it still hadn’t been answered.
In September 2017, the ICO told the Home Office to respond to an FOI made on May 31, 2016. “Despite this intervention the Home Office has failed to respond to the
complainant,” the ICO’s decision notice (as most of them do) says. This list could go on. And these are just the cases where the FOI requester is bothering to contact the ICO about the lack of response.
Whatever’s happening inside the Home Office needs to be fixed. But there’s also another party in the this, the ICO. The regulator has the ability to issue an Enforcement Notice against the Home Office, telling it to sort its responses out. If it doesn’t, the ICO has the power to take it to court.
However, its unlikely the ICO will take any action as during the 12 years of the FOI Act it has only issued 4 enforcement notices and the one time it tried to take a public authority to the High Court it lost. The result? The Home Office can do whatever it likes when answering FOI requests and the decision notices will keep piling up.