Evidence submitted by Maurice Frankel,
Director, Campaign for Freedom of Information
This submission by the Campaign for Freedom
of Information deals briefly with the work of the Information
Commissioner's office.
THE BACKLOG
There is a significant backlog of unresolved complaints
in the Commissioner's office, which amounted to some 1300 cases
at the end of 2005. The existence of a backlog is not in itself
unique: significant backlogs have occurred in other jurisdictions
at various times as well as under the UK's Open Government code.
[46]
In some respects, this problem is not surprising.
In our oral evidence to this committee's previous inquiry, into
the implementation of the Freedom of Information Act, we suggested
that a serious backlog might be one consequence of the government's
decision not to phase in the Act, but to bring it into force for
100,000 authorities on one day. It seemed possible that this might
result in a large volume of complaints, from across the whole
public sector, arriving at the Commissioner's office at around
the same time.
However, the existence of a large backlog at such
an early stage in the life of the Freedom of Information Act creates
a particular problem, since so far there are relatively few decision
notices dealing with substantive issues of interpretation under
the Act.
The first decision notices, starting in June 2005
dealt mainly with procedural matters, such as complaints about
delays, failure to respond to requests, fees or disputes about
whether information was held at all. Few involved substantive
issues about the use of exemptions or the Act's public interest
test. Although decisions involving exemptions have begun to appear,
they still represent a small proportion of the total. The situation
as of March 3 2006 was that:
Of the 155 decision notices issued by the Commissioner's
office only 23% (36) dealt with exemptions while 77% (119) involved
procedural issues.
During the same period, the Scottish Information
Commissioner issued 120 decision notices of which 54% (65) dealt
with exemptions and 46% (55) involved procedural matters.
It is not clear why there should have been such a
significant difference between the two Commissioners, particularly
as the Scottish Commissioner's office has a smaller staff and
has had less time to prepare for the legislation. [47]The
result is that interpretation of the Act, as elucidated by the
Commissioner's decisions, is notably less advanced than might
have been expected after 14 months.
One of the key issues under the Act is whether disclosure
is likely to affect the formulation of government policy or the
frank discussion of policy issues. This issue was first addressed
in a decision of the Scottish Information Commissioner in July
2005. [48]The
first equivalent decision involving a UK government department
was only issued in January 2006. [49]In
itself, this is an important and robust decision, but it seems
to have been the first decision notice to deal with the use of
an exemption by a government department.
The relatively slow progress that has been made in
addressing the Act's exemptions does not merely affect the complainants
and authorities awaiting decisions. It has implications for the
speed with which authorities move towards greater openness generally.
If the Commissioner's decisions are delayed, poor practice may
continue unchecked or become even more entrenched. Conversely
even a single decision by the Commissioner to require disclosure
may, depending on the case, unlock a substantial volume of information
across a whole sector. We assume that most authorities will voluntarily
adapt their approach if they realise that it is not consistent
with the Commissioner's decisions. Some FOI practitioners have
told us that they would prefer to release more information in
certain situations but cannot persuade their authorities to do
so without "case law" demonstrating that the Commissioner
requires it. Once such decisions are in place requesters will
also be better placed to recognise and successfully challenge
unreasonable refusals or to accept that information has been legitimately
withheld. This may tend to reduce the number of unnecessary appeals
that are made.
QUALITY OF
DECISION NOTICES
Some the Commissioner's early decision notices provided
little information about the circumstances of the complaint or
the reasons for the Commissioner's decision. In some cases the
Act's requirements were described in an oversimplified manner.
These would have been of limited use to anyone trying
to understand what ought to be done in similar circumstances.
So even where decisions had been published, their value to others
was more limited than they should have been. [50]This
may indicate problems relating to staff training and supervision.
More recent notices are generally of a better standard and many
contain a much fuller account of the Commissioner's reasoning.
One area where decision notices still fail to provide
the necessary clarity is the extent to which requests for information
involve "environmental information". Such information
is exempt under the Freedom of Information Act and must be dealt
with under the Environmental Information Regulations instead.
The distinction between the two is sometimes important, as there
are significant differences between the regimes.
The Commissioner has issued a series
of notices involving requests for information about planning.
Most state that the information in question "is environmental
information" and deal with the matter under the EIRs. [51]Others
make no reference to the EIRs and deal with the matter under the
FOI Act. [52]The
basis for these distinctions is not explained in the notices.
decision notice dealing with a request
for a copy of an "environmentalist's report" about rights
of way has been dealt with under the FOI Act not the EIRs. [53]
Four decision notices relating to information
about waste disposal have been issued under the FOI Act. [54]
We understand that the Commissioner has been content
to deal with requests for environmental information under either
regime, so long as the outcome of the case is not affected. We
see no reason to object to that policy, so long as it is explained
in the decision notices concernedbut this has not been
done. The result may be to encourage authorities to disregard
the boundaries between the two regimes. In certain cases this
may lead to the withholding of information which should be released.
TRIBUNAL DECISIONS
Some of the Information Tribunal's decisions have
highlighted shortcomings in the Commissioner's investigations:
In the Barber case[55]
a request was made for information about the way the Inland Revenue
had dealt with various examples of what the applicant called "maladministration"
and "failed standards" in refunding overpaid tax. The
Revenue denied that there had been such failings and maintained
that it therefore held no information corresponding to the terms
of the request. The Commissioner's decision notice described the
applicant's request as "subjective" and "opinionated"
and agreed that the Revenue was entitled to state that it held
no such information. This decision was criticised by the Tribunal,
which noted that the Inland Revenue had publicly apologised for
the shortcomings identified in the request and observed that "Any
reasonable Public Authority, knowing the historical context of
the request . . . would have understood the basis of [the] request".
It also expressed surprise that the Commissioner's investigation
had been carried out purely on the basis of the initial papers
supplied by both parties, without either side having been contacted
during the course of the investigation.
In the Bowbrick case[56]
(which is still before the Tribunal), the Commissioner's office
accepted the local authority's assertion that, with minor exceptions,
it did not hold the requested information. The Tribunal proceedings
have established that a substantial volume of information relating
to the request is in fact held by the authority.
In the Bustin case[57]
the Commissioner's office accepted that an "approved drawing"
under the Highways Act (which was subsequently disclosed) was
not held at the time of the request, inasmuch as formal approval
for the drawing had not then been given. The Tribunal found that
"the Commissioner's finding, that the approved plan was not
held by the Council on the date of the information request, is
open to question. It appears more likely that the Council held
the approved plan at the time of the request and did not deal
with the request in a satisfactory manner."
These cases suggest that the Commissioner's office
may sometimes have been too ready to accept an authority's explanation
of the facts of a case, a worrying prospect. More searching enquiries
will clearly be needed in such circumstances. This may also complicate
efforts to speed up the handling of apparently straightforward
cases in order to reduce the backlog.
APPROACHING THE
BACKLOG
In dealing with the backlog, several alternative
strategies may be possible. One is to work through the cases in
the order in which they were received, regardless of the significance
of the cases. A second is to prioritise those cases that can be
dealt with most quickly, so as to clear as many cases in as short
a time as possible. A third approach, which we hope will be adopted,
is to prioritise those cases which raise issues of greatest public
interest or address the most significant obstacles to the progress
of the legislation.
Finally we note that in January this year the Commissioner's
web site was advertising for new staff "to join our Freedom
of Information and Data Protection teams, investigating breaches
of the law and resolving complaints". The starting salary
for these posts was £15,612 which is a low salary given the
complexity of the work involved. Even apparently basic tasks,
such as establishing the facts of a disputed case, are complex
matters requiring considerable experience and judgement. There
may be a question as to whether the Commissioner's office is recruiting
staff at levels of pay which are too low to attract the more experienced
staff needed to tackle the backlog effectively and to avoid whatever
problems may have contributed to it.
Maurice Frankel
Campaign for Freedom of Information
March 2006
46 When the Code was introduced in 1994, the Parliamentary
Ombudsman who supervised it set a target of 13 weeks for completing
investigations. The average time taken for cases completed during
1994 was in fact 15 weeks. By 1996, the average time to complete
an investigation had risen to 52 weeks Back
47
The post of Scottish Information Commissioner was created under
the Freedom of Information (Scotland) Act 2002. The Scottish Commissioner
had less than two years from the date of his appointment to full
implementation of the Scottish FOI Act. The office of the UK Information
Commissioner (at that time headed by Elizabeth France) was already
in existence when the UK Actwas passed in November 2000 Back
48
Decision 015-2005, Mr John Hodgson (Chairman of the Skye Windfarm
Action Group Ltd) and the Scottish Executive, 21.7.05 Back
49
Decision Notice 74589, Department for Education and Skills, 4
January 2006 Back
50
For example, one decision notice dealt with a complaint that
the Crown Prosecution Service had failed to respond to a request.
The decision notice stated that the "the Crown Prosecution
Service have stated that they did not comply with the complainant's
request for information as they did not consider this request
to be valid for the purposes of section 1 of the Act. The Commissioner
considers that this request was valid" (Decision notice 71320,
13 September 2005). The decision notice does not explain why the
CPS considered the request to be invalid, nor why the Commissioner
reached the opposite decision. No-one else facing the equivalent
situation-and the problem involved is not unusual-would have been
able to point to this notice in support of their case Back
51
Requests for planning information which have been dealt with
under the EIRs include those described in Decision Notes 61168,
62329, 67003, 77187 and 74855 Back
52
Requests for planning information which have been dealt with
under the FOI Act include those in Decision Notices 79178, 76778- Back
53
Decision Notice 74966, East Riding of Yorkshire Council- Back
54
Decision Notices 74785, 71182, 84406 and 79280 Back
55
Mr E A Barber v the Information Commissioner, Information Tribunal
Decision No EA/2005/0004- Back
56
Decision Notice 63475, Nottingham City Council, 5 July 2005 Back
57
Mr R Bustin v the Information Commissioner, Information Tribunal
Decision No EA/2005/009 Back
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