House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Seventh Report

5 The Information Commissioner

The Role of the Information Commissioner

47. The Information Commissioner's Office is the UK's independent public body set up to promote access to official information and protect personal information. It provides guidance to individuals and organisations and is responsible for enforcing FOI, environmental information and data protection legislation.

48. One of its key duties in relation to FOI is to enforce compliance by public authorities. An individual who has made a request for information to an authority and believes that the authority has not handled their request in accordance with the Act may apply to the Commissioner for a decision. In addition to the duty to issue decision notices in such circumstances, the Commissioner's roles are to:

Promote good practice by public authorities;

Provide information and advice to the public about the operation of the FOI Act;

Assess whether authorities are following good practice (as set out by the Act and the codes of practice); and

Approve publication schemes.

49. Under the Act, the Commissioner has a number of enforcement powers to improve compliance with the Act: he has the power to issue decision notices, good practice recommendations (if an authority's practices do not conform to the codes of practice), information notices (requesting information to assist complaint investigations) and enforcement notices (directing an authority to amend its practices). The Commissioner's notices can be enforced through the courts if an authority fails to comply with them.

50. Although the Information Commissioner reports directly to Parliament and is responsible for setting the priorities for his office, the resources for his office are provided by the DCA, in contrast to the Scottish Information Commissioner, whose resources come directly from the Scottish Parliament. The Commissioner commented to us that this arrangement posed some challenges:

We are grant aided from the DCA. There are some interesting questions there about the Scottish parallel, for example, or the Parliamentary Ombudsman here. There the money is voted directly from Parliament and that is perhaps an issue this Committee may want to give some thought to…I am a little uncomfortable that the same part of the same government department is responsible for policy on FOI, for leadership of the clearing house and for sponsorship of my department, and I think that there are some slightly uncomfortable questions there about competing considerations.[

We return to this issue in Chapter 6.

Caseload

51. Research commissioned by the Information Commissioner during 2004 suggested that his office was likely to receive between 1250 and 3000 cases during the first year and that this could rise to between 4000 and 9000 cases in 2009 before stabilising.[49] The prediction for 2005 proved to be accurate; he actually received 2385 cases during 2005. Of these:

1325 were outstanding as of 31 December 2005; and,
1060 were closed by 31 December 2005. Of those closed cases:
- 135 resulted in formal Decision Notices;
- 360 were resolved informally;
- 565 were deemed not valid complaints.

Many of the 1325 cases carried over to 2006 had been awaiting attention for several months.

52. We heard evidence from requesters and public authorities who had waited months for the Information Commissioner to start investigating their complaints. Witnesses also gave examples where the quality of investigation and the information provided in the decision notice were inadequate.

53. The Commissioner accepted that the backlog of cases in his office was unsatisfactory, stating that he was 'deeply concerned about the time it is taking my office to deal with complaints, particularly as the complaints themselves often already reflect frustration arising from a public authority's delay in responding to an FOI request or the perceived inadequacy of response when received.'[50]

54. To some extent, the difficulties faced by the Commissioner were predictable, given the decision to implement the Act across the whole public sector at the same time. The ICO did not have time to build up its expertise and authorities had to rely on general guidance and international experience for their training and to inform their early best practice. As he stated in his submission:

Despite his reservations about the DCA's approach to implementation, the Commissioner had expressed confidence to us in October 2004 that his office was well prepared, adequately resourced and ready to assume its new FOI responsibilities in 2005.[52]

55. The Commissioner told us in March 2006 that he planned to improve his caseload handling by implementing organisational changes so that his office could process new cases more quickly and by requesting one-off additional resources from the DCA to clear the backlog:

56. The backlog of cases was not the only problem raised by our witnesses; of equal concern to us were criticisms from witnesses which called into question the quality of investigations carried out by the ICO. Friends of the Earth stated that:

Maurice Frankel stated that:

57. Maurice Frankel also questioned the judgement of the Commissioner in choosing to make his early focus the procedural cases and to postpone decisions relating to exemptions:

58. However, witnesses also commented that the quality of decision notices had improved and that the ICO was now providing fuller explanation of its approach to the investigation and the reasons for its decision.[57] A greater proportion of decisions now relate to exemptions. We welcome the evidence that the Commissioner recognises the importance of quality and of guidance about the exemptions and that he has responded constructively to feedback about the early decision notices.

59. When we visited the ICO in May 2006, the Commissioner told us that he had implemented some structural and procedural changes. During February, March and April 2006 the number of new cases had remained about level, but the number of cases closed per month had increased, and had exceeded the number of new cases. A number of measures have been introduced to improve the quality control of investigations and the ICO plans to implement further controls over the next few months. This is an encouraging start to the recovery plan.

60. The Commissioner first requested additional resources from the DCA in late 2005 and refined that request in January 2006, when he asked for an additional £1.13million for 2006/07.[58] The DCA did not advise the Commissioner until mid-April (and after the start of the financial year) that it had decided to provide one-off additional funding of £550,000 which delayed the appointment of new staff.[59] The Commissioner's Corporate Plan states that he will use his 'best endeavours' to clear the backlog (which by that stage was estimated as 1275 cases) by March 2007.

61. The Commissioner told us in March that he required an additional £1.13million to clear a backlog of around 700 cases in one year, but in May that he was aiming to clear twice as many cases with half the money, in under a year. He also told us that he was planning on the basis of the number of new cases remaining level, despite the predictions of his research that they would continue to increase for the first few years.

62. The impression given by our witnesses was that the complaints resolution process was unsatisfactory during 2005, but we were pleased to note the efforts being made by the ICO to learn from its first year's experience of a challenging workload in order to investigate complaints more efficiently. We are surprised that the need for additional resources was not identified earlier in 2005, before the backlog became such a problem, and we are not convinced that adequate resources have been allocated to resolve the problem, or that they were allocated early enough. The Commissioner has told us he will publish a progress report in September 2006. We expect this to provide measures of quality as well as quantity. We will use this report to monitor the success of the recovery plan and to assess whether further action by the Committee is needed.

Approach to enforcement

63. Some of our witnesses suggested that the Commissioner's approach to enforcement had contributed to delays. Steve Wood said that:

It is my view that the first year of the FOI Act was characterised by tentative enforcement and dissemination of best practice by the ICO...The ICO's position of 'negotiation and discussion' in gathering information may need to be altered to enable swifter resolution in cases where public authorities are slow to respond and provide information requested.[

64. The Commissioner told us that his early approach to enforcement had been to be 'reasonably tolerant, reasonably non-confrontational trying to help public authorities get it right'.[61] During 2005 he issued no practice recommendations and very few information notices. He now felt it was to adopt a firmer approach: 'I think we have resolved that we must be considerably tougher in some respects as we go into the second and third year…we will be using our powers to serve practice recommendations and enforcement notice increasingly after that first…learning year.'[62]

65. The Commissioner told us that during most investigations it was essential for him to have access to the requested information so that he could form a judgement about the applicability of exemptions or public interest factors, but that in some cases, public authorities had been reluctant to allow this access. He had therefore recently issued seven information notices in cases where 'public authorities had been rather slow at sharing information' with the ICO:

66. Central government has a written agreement to co-operate with the Commissioner on such matters. In February 2005, the Secretary of State for Constitutional Affairs, on behalf of government departments, signed a Memorandum of Understanding (MoU) with the Information Commissioner to promote good standards of co-operation. The DCA has responsibility for promoting government compliance with the MoU.

67. We asked Baroness Ashton for reassurance that government departments were co-operating fully with the Commissioner. She gave us a commitment that she 'knew of no cases where government departments had refused to provide information to the Commissioner' and that 'the approach the Government would take is to provide the Information Commissioner with information as appropriate to the Act. There is no resistance on behalf of Government to doing that.'[64] She did not acknowledge that there were 'pockets of resistance' as reported by the Information Commissioner in his evidence.

68. We support the Commissioner's decision to adopt a firmer approach to enforcement. We expect to see him use his full range of powers to improve compliance and reduce the delays being experienced by requesters.

69. We recommend that the DCA takes a more proactive role in ensuring that government departments co-operate fully with the Commissioner and provide him with the information required for his investigations, within the periods agreed in the Memorandum of Understanding.

Information Tribunals

70. If either the public authority or the applicant disagrees with the Commissioner's decision notice, they can appeal to the Information Tribunal. The Commissioner told us that by the end of 2005, 25 appeals had been made to the Tribunal, of which nine had been decided, and that he had already identified two procedural issues which impacted on his office.[65] Firstly, if oral hearings (as opposed to cases being determined on the papers) became the norm, it would have significant resource implications for the ICO. Secondly, because the appeal was always against the Commissioner's decision, he was the respondent in every case. The Commissioner told us that he was looking at ways in which the ICO could take a lesser role so that his input was more effective and proportionate: 'Although the Act requires that we are the respondent, I would much rather see the real battle at the tribunal between the original requester and the original public authority'.[66]

71. We believe that to it is too soon to assess the role of the Tribunal process in detail, but the Commissioner has made some important points which should be considered at a later date.

FOI in Scotland

72. The FOI (Scotland) Act, like the UK Act, was implemented on January 2005. During our inquiry we visited the offices of the Scottish Information Commissioner in order to learn more about the Scottish experience of the first year of FOI implementation.

73. The Scottish FOI legislation is similar, but not identical to the UK. The Scottish time limits are stricter; there is no permitted extension to consider the public interest test and there are statutory time limits for internal reviews and the Commissioner's investigations. Some of the Scottish exemptions require a higher level of harm to be demonstrated, the fees arrangements are different and there is no Information Tribunal in Scotland (but the authority and applicant have the right to appeal to the Court of Session on a point of law). The UK Information Commissioner retains responsibility for FOI in relation to UK-wide public authorities and for Data Protection throughout the UK.

74. Based on the same research used by the UK Commissioner, the Scottish Information Commissioner predicted that he would receive between 125 and 300 cases in 2005; actual volumes were much higher and he received 571 cases. 240 cases were closed during 2005 (191 of them within four months) and 331 were carried over to 2006. Two additional investigators were recruited during 2005 to deal with the higher than expected volume of work. Procedural cases dealing with technical breaches (such as non-compliance with the 20 day deadline) are fast-tracked and often closed within two weeks.

75. The Scottish ICO receives its funding directly from the Scottish Parliament. It is a much smaller organisation than the UK ICO; the Scottish 2005 caseload was around one fifth that of the UK. It has a flatter organisational structure and the investigators all deal with a wide range of work including complaints and public authority liaison. The Scottish Commissioner estimates that investigators are able to close around 30 cases a year.

76. The Scottish Information Commissioner's view was that Scottish authorities were generally coping well with the legislation, although, as in the rest of the UK, some authorities were apparently encountering problems because of inadequate records management systems.

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