Freedom of information failings targeted by ICO

The Information Commissioner’s Office (ICO), the UK’s independent authority set up to uphold information rights, has taken recent steps towards ensuring transparency and accountability in public authorities. Acting against five public authorities, the ICO has issued a combination of enforcement notices and practice recommendations to ensure that obligations under the Freedom of Information (FOI) Act are upheld.  

South Yorkshire Police and Sussex Police were both recipients of enforcement notices for their statutory failures in respect of the FOI Act. Evidence supplied to the Commissioner indicated that both forces were not meeting their statutory duties: South Yorkshire Police had a backlog of 390 FOI requests and Sussex Police had a backlog of 753 FOI requests. Indeed, of the latter’s 753 requests, 389 were over six months old - and at the date of the notice the force was answering a mere 27% of requests within 20 working days.

Warren Seddon, the ICO Director of Freedom of Information and Transparency, described the failures of South Yorkshire Police and Sussex Police as “woeful” – and highlighted the importance of information transparency to a functioning democracy. The enforcement notices require both forces to clear their respective FOI request backlogs by 31 August 2024 at the latest. The ICO’s actions indicate that public authorities should take information transparency seriously – and the enforcement notices are clear evidence that the ICO will continue to robustly uphold information rights.  ICO enforcement notices can have further consequences if a public authority fails to comply.  In such circumstances the authority can be found in contempt of court, which could lead to a fine or potentially even imprisonment for a senior officer in an extreme case.

Where the ICO considers that a public authority has failed to follow good practice, the Commissioner may issue practice recommendations even where there has not been a breach of the FOI Act. The Department of Education , Foreign Commonwealth and Development Office and the Financial Ombudsman Service were each served with practice recommendations. Taking the DfE as an example, the ICO found a declining level of performance in DfE’s responses to FOI requests since the COVID 19 pandemic – and the ICO’s staff have engaged with the public authority to improve its request handling practices.

The ICO’s practice recommendations are consistent with the objectives of the Information Commissioner’s accompanying open letter, addressed to senior leaders of public authorities. In the letter, John Edwards called on organisations to take leadership and dedicate sufficient resources to improving transparency and access to information. The letter also contained advice for public authorities:

• “Know what you need to publish and make as much information publicly available as possible.
• Look at what people are asking you about and actively publish it.
• Implement simple policies that show staff how to manage information requests effectively.
• Share our simple ‘FOI in 90 seconds’ guide and response templates with your staff.
• Provide mandatory FOI training for all staff, review it regularly and offer refresher training.
• Invest in tools and systems to manage and respond to information requests.
• Monitor performance to ensure your organisation is complying with its legal duties using our template action plan and self-assessment toolkits.”

The ICO’s enforcement actions and practice recommendations are not just about penalising non-compliance, but also about encouraging improvement and best practices. By issuing enforcement notices and practice recommendations, the ICO is seeking to improve transparency and accountability in public authorities. This is an important part of the ICO’s objective to uphold information rights in the public interest: promoting openness by public bodies and data privacy for individuals.