4 Delays (section 10) and enforcement
(section 77) |
91. Section 10(1) requires that a response is
made to requests "promptly and in any event" within
20 working days. There are no immediate penalties for non-compliance.
Section 10(3) allows for an extension of time "as is reasonable
in the circumstances."
This is generally referred to as the 'public interest' extension
as it is used when qualified exemptions are being considered.
The Information Commissioner's Office guidance states that this
should only apply where the inquiry is "exceptionally complex"
and should not be longer than an additional 20 working days.
Under section 50, a requester whose application is refused has
to wait for the public body to carry out an internal review before
the refusal can be appealed to the Information Commissioner.
There is no statutory time limit on internal reviews. Guidance
in the Code of Practice issued by the Secretary of State under
section 45 of the Act states that 20 days is a reasonable time
for an internal review.
Graham Smith, Deputy Information Commissioner, told that: "We
would expect internal reviews to be done within 20 working days;
there might be exceptional grounds for extension, but never more
than 40 days."
Compliance with time limits
92. Overall users of the Act thought that the
20 day response time was about right "if it were adhered
it was somewhat slow for journalism purposes.
Sophie Barnes, a journalism student and user of the Act, thought
that the 20 day limit was being treated as a "minimum"
rather than requests being responded to 'promptly' as the Act
about delays generally occurred in connection with extensions
to the 20 day limit and when internal reviews were undertaken.
Alex Skene, of WhatDoTheyKnow, told us "one of the biggest
complaints that we get from users of our website is about delays
The British Union for the Abolition of Vivisection described delays
Media witnesses agreed. The Society of Editors, however, also
highlighted the wide variation in responses from different public
authorities: "the Act suffers from inconsistency, with a
wide spectrum of approaches applied by information controllers.
In practice this highlights the intransigence of some set against
the good example of others."
93. Public authorities are not required to keep
statistics on compliance but they are available for certain sectors.
Ministry of Justice statistics show that in 2010 17% of requests
to Government departments (4,696 out of 27,290) took more than
20 working days. 12% notified the requester there were grounds
for an extension of time, 5% did not.
Of the cases to which an extension was applied, 53% were resolved
within the ICO 20 day time limit.
The remaining 47% took up to 6 months. A few requests appear to
have taken longer but records are not kept of requests that take
longer than 6 months. The Campaign for Freedom of Information
noted that the MoJ described these requests as being answered
"in time" simply because the requester was told the
request would take longer than 20 days, not because the delay
was judged "reasonable in the circumstances".
94. We were pleased to hear
relatively few complaints about compliance with the 20 day response
time. We believe that the 20 day response time is reasonable and
should be maintained.
THE 20 DAY 'PUBLIC INTEREST EXTENSION'
95. Maurice Frankel, of the Campaign for Freedom
of Information, told us:
From the start, the public interest extension was
misguided. We said so to the Government at the time. I remember
an official saying to me, "We have had such a job getting
agreement from the Cabinet Committee that we don't dare go back,
however good the case for changing anything, because the whole
thing will be unstitched. Every agreement we have will be unstitched."
That is how it was put in place, and that is how the final Act
took its form.
Mr Frankel thought the power to extend the 20 day
response time should be limited to "permitting extensions
where the request is voluminous and complex, and in particular
where the authority has to consult a third party outsidenot
another public authority but an individual or business that has
provided the informationin order to know whether an exemption
Graham Smith, Deputy Information Commissioner, told us:
In the original proposals for the Bill there was
no suggestion of public interest extensions. They were introduced
in debate, primarily because of concerns about the need for third-party
consultation in some cases. Reading between the lines, as far
as I can judge it, the fact that you were dependent on the responses
of the consultees would make it difficult to put a time limit
on it. It was recognised that the backstopthis does happen
in practiceis that somebody can make a complaint to the
Commissioner, saying, "This is all taking too long. Can you
hurry it along, please?" If needs be, we can then issue a
decision notice; a phone call and a fairly stiff letter to the
public authority is usually sufficient, saying, "This is
not good enough; please turn this round in the next 20 working
96. Mr Smith told us that when the ICO investigated
failures to respond it took into account all the circumstances
of the case and would hold that a delay was reasonable where,
for example, there had been difficulties contacting the third
party. He gave the example of a "Government Department where
there needed to be consultation with an overseas Government, and
they just did not respond. It was a highly sensitive international
issue, and the consequence was that the request just did not get
dealt with for about a year and a half." Mr Smith thought
a framework on the use of the 20 day extension would be helpful
because "public authorities were clear as to their obligations
[...][and][...] requesters would have a clear expectation of the
time that would be taken." Alex Skene noted that there was
no power to extend the response time in Scotland which appeared
to cause few problems, although fewer public authorities are subject
to the Scottish equivalent of the Act.
97. In February 2012, Lord Wills moved an amendment
to the Protection of Freedoms Bill which would have permitted
one 20 day extension.
Lord Wills told the House of Lords that the proposal:
[...] aims to cut down on delays in responding to
freedom of information requests, which can often defeat the intent
of the legislation. Such delays can be of more than a year. It
is in line with the Information Commissioner's guidance that normally
an extension should not be needed but where it is, it should not
exceed a further 20 working days. Too often, the guidance is ignored.
The amendment will make it more difficult to do so.
98. Central Government officials were all opposed
to amending the Act by controlling the use of the 20 day time
limit. Roger Smethurst, of the Cabinet Office, told us:
Everybody who works on freedom of information in
the Cabinet Officeboth in my team and across the Department
where they are processing the information and doing the public
interest testworks on the basis of trying to release what
they can and protecting only what needs to be protected. My fear
is that, in certain circumstances, if we were to put a time limit
on this, then they might err on the side of caution rather than
do the job properly.
99. Glenn Preston, of the Ministry of Justice,
said that the public interest extension was only used in around
5% of cases: "Of that 5%, I think you are looking at about
half that are always dealt with in the additional 20 working days
that we apply, which is the good practice guidance that the Ministry
of Justice and the ICO publish. If you were to apply a time limit
to public interest tests like you describe, then you are talking
about that affecting only a really quite small proportion of the
total number of requests that Government receive."
Marion Furr, of the Department of Health, suggested that changing
the regime might mean requests took longer: "Human beings
being what human beings are, putting a deadline of 20, 30 or 40
days on something could lead some people to think, "Oh, I've
got 40 days to do it", whereas at the moment we say, "You
have to do it as quickly as possible." It could become a
target rather than a limit."
100. Tracey Phillips, of Lambeth Council, told
us that applying the public interest test was rarely problematic:
"applying the public interest test is quite bog standard.
You use a templated response [...]. It is not used very often,
but when it is used, it is the same response."
101. Mr Frankel supported the introduction of
a statutory time limit on internal reviews, as in the Environmental
The Telegraph Media Group told us that the use of internal reviews
as an obstacle to delay the publication of information made some
journalists feel that they were entering "a war of attrition"
with the public body concerned.
It also supported the introduction of time limits for internal
reviews. The Information Commissioner said that the lack of a
statutory time limit for internal reviews was a "weakness"
of the Act and made effective enforcement difficult. Noting that
"The position under FOIA contrasts with that under the Freedom
of Information (Scotland) Act 2002 and under the EIR, both of
which provide for mandatory internal reviews with enforceable
time limits" the Commissioner said he would "welcome
an amendment to FOIA along the same lines to strengthen the current
102. Concerns regarding the imposition of a mandatory
time limit for internal reviews were similar to those regarding
the public interest extension.
103. It is not acceptable that
public authorities are able to kick requests into the long grass
by holding interminable internal reviews. Such reviews should
not generally require information to be sought from third parties,
and so we see no reason why there should not be a statutory time
limit20 days would seem reasonablein which they
must take place. An extension could be acceptable where there
is a need to consult a third party.
THE IMPACT OF NON-STATUTORY TIME
104. On compliance with the different time limits,
Mr Smith told us that performance by authorities was poorer when
there was no statutory provision:
When there are quite challenging time limits under
the Act, we have found that public authorities will put their
efforts into meeting those, and their performance might slip somewhat
when it comes to issues that do not have the same direct repercussions
because there are no statutory time limits.
105. The Constitution Unit told us its research
on central Government suggested that the power to delay together
with the fact it holds the information means that: "Despite
its evident discomfort at the continuing pinpricks of FOI, the
government remains in a very strong position. It holds the information.
It can resist disclosure for years if it wants to play the system
and fight appeals." Equally, "as in any field of legal
regulation, there is scope to game the system. Officials and ministers
will play things long if they want to delay disclosure, and they
face few penalties for doing so."
Other remedies for non-compliance
with time limits
106. The Information Commissioner told us in
his written submission that:
[...] the ICO now monitors public authorities which
come to its attention for unacceptably poor response times to
FOI requests. Formal ICO interventions with 52 public authorities
have been made, resulting in significant improvements. Key to
this success has been the engagement of top managers at the public
authority. Sometimes this has been by way of a personal undertaking
to improve performance, as with the Ministry of Defence, Cabinet
Office, Birmingham and Wolverhampton City Councils.
107. We heard from three of the monitored bodies
in evidence. It was clear all three had taken the Information
Commissioner's intervention seriously and had spent time and resources
in trying to improve their compliance rates. Birmingham City Council
told us that it "required more rather than less resource"
to maintain the 85-90% compliance rate the council was now achieving.
Roger Smethurst, representing the Cabinet Office, which had the
worst record of responding to requests in time of the central
Government departments, thought the success of monitoring the
Department by the Information Commissioner's Office meant that
making the 20 day extension statutory was unnecessary.
In evidence, Martin Rosenbaum of BBC News suggested that the Cabinet
Office had shown some improvement in response times under monitoring
but had then regressed.
He also noted that monitoring and enforcement required resources
to be spent by the Information Commissioner:
[...] it is important that the Commissioner has a
level of resources that enables him to process the complaints
that he receives sufficiently quickly, efficiently and effectively
so that he can then turn round with confidence and address the
public authorities that have been slow. Previously, a lot of them
would have been very dismissive of any complaint from the Commissioner,
saying, "You are worse than us." As well as the law,
there is also the question of the resources that the Commissioner
has in order to use his powers and to use them with confidence.
Our predecessor Committee expressed concerns about
the limited resources available to the Information Commissioner
at the time of the appointment of the present incumbent.
108. Kent County Council was concerned that patchy
publication of compliance rates meant the public authorities which
released them in the interests of openness and transparency were
the ones most likely to be monitored while other "less open
and honest" authorities could hide their poor response rates
by refusing to put such information in the public domain.
Paul Gibbons agreed this was unfair:
The Information Commissioner has indicated that he
will keep authorities under review that are regularly failing
to meet the requirement to answer requests within 20 working days.
However, this will not always be evident as reporting is not consistent.
I would suggest that all public authorities be required to publish
statistics on FOI compliance, perhaps as part of existing annual
reporting processes. This would enable the public to see which
authorities are meeting their FOI obligations.
109. We recommend that all public
bodies subject to the Act should be required to publish data on
the timeliness of their response to freedom of information requests.
This should include data on extensions and time taken for internal
reviews. This will not only inform the wider public of the authority's
compliance with its duties under the Act but will allow the Information
Commissioner to monitor those organisations with the lowest rate
110. While monitoring of poor-performing public
authorities by the Information Commissioner appears to work reasonably
well, it requires resources from the Information Commissioner's
Office. Greater clarity on time limits and the publication of
compliance statistics will allow the Commissioner to target the
worst performing authorities and make the best use of limited
111. We recommend the 20 day
extension be put into statute. A further extension should only
be permitted when a third party external to the organisation responding
to the request has to be consulted.
112. We recommend that a time
limit for internal reviews should be put into statute. The time
limit should be 20 days, as at present under the Code of Practice,
with a permitted extension of an additional 20 days for exceptionally
complex or voluminous requests.
113. We heard arguments that placing limits on
the 20 day extension and making the internal review time statutory
might mean that officials working on freedom of information might
become more cautious in releasing information or work more slowly.
It would be highly regrettable if employees working for public
authorities failed to take their duties under the Act sufficiently
seriously that they would behave in this way and we expect the
leaders of bodies subject to the Act to ensure this does not occur.
114. Resources are always problematic for public
bodies, and are particularly so in the current economic climate.
We will make recommendations in this report that will bring some
measure of relief to organisations. The time frames under the
Act are not, however, unreasonable and public authorities have
been aware that they must comply with them since the right to
access information came into force. Enshrining the time limits
in statute merely clarifies the position for both requestors and
responders and should make little difference to those bodies operating
an efficient freedom of information regime.
INFORMATION COMMISSIONER'S OFFICE
115. The Information Commissioner's Office previously
had a poor record for responding in a timely fashion to appeals.
Martin Rosenbaum, of BBC News, told us:
[The Commissioner's] own record in dealing with complaints
[...] used to be absolutely terrible; the delays were worse than
anything you would experience from a local authority. In one of
my cases, the Commissioner was considering the matter for more
than four years before I got a decision.
This had, however, "dramatically improved".
Mr Rosenbaum said the effect of the improvement was that public
authorities could no longer be "dismissive" of any complaint
from the Commissioner on the grounds his office had a worse performance
116. The Information Commissioner told us that
improving response times to complaints had been a recent focus
of the Office and agreed that this had a knock-on effect on public
We have been able to make the system work much better
by reorganising our own systems and being much more efficient,
and therefore putting a bit of ginger into the system to make
sure that public authorities respond in a more timely way.
The Commissioner told us: "With the case load
that we have at the moment [...] we can turn round about 47%that
is the last figure that I sawof the section 50 business
that we get within a month, because it is sometimes simply misconceived
or has come to the wrong place; and we can get rid of 75% within
three months. We have no cases over a year old, despite the fact
that we issued 24% more decision notices this year than last."
of section 77
117. Section 77 makes the destruction or altering
of records with intent to prevent disclosure a criminal offence,
punishable by a fine of up to £5000. The offence is summary
only which means a charge must be laid within six months of the
offence being committed.
The NHS Business Service Authority told us that "the ICO
does not have sufficient powers to enforce public authority compliance
with the act" and that powers similar to those under the
Data Protection Act would aid this.
118. The Information Commissioner told us that
no one had ever been prosecuted under section 77 of the Act.
He explained why:
The reason is because you have to get it to prosecution
stage within six months. The matter may not get to the Information
Commissioner for some time, and it takes time to investigate the
circumstances of the case; and you then have to come up with a
case that will survive court action. That is the reason. It is
not that we have not seen evidence of obstruction or the destruction
of material after requests have been made, but we simply cannot
get them to court in time.
The Campaign for Freedom of Information agreed: "The
delays which often occur in responding to requests and carrying
out internal reviews mean that more than 6 months may have passed
before the applicant is in a position to complain to the ICO."
119. The time limits for the offence could be
extended in two ways. First, section 77 could be made an 'either
way' offence, which means the offender is liable in perpetuity.
The Information Commissioner supported this approach:
[...] we believe that that would send a very clear
signal that obstructing the operation of the Act or simply responding
to a freedom of information request by deleting material is a
criminal offence and that there is a credible deterrent penalty
for dealing with it.
A summary offence is triable only in the Magistrates'
Court which means the maximum sentence that can be imposed is
£5000. The Information Commissioner noted that making section
77 an either way offence meant that it could be tried in the Crown
Court where an unlimited fine could be imposed:
[...] if you want a fine that will stickto
be dissuasiveyou really need to go to the Crown Court.
That is why it needs to be triable either way. You get the benefit
of the extended time but also the ability to levy a [higher] fine.
This is one area where I am not seeking to lock people up; a fine
would be appropriate, but the Crown Court could impose an unlimited
120. It was also suggested that section 77 remain
a summary offence but the limitation period either be extended
or start from the discovery of the offence rather than its commission.
The Campaign for Freedom of Information said:
We think it should be possible to prosecute for this
offence provided proceedings are brought within 6 months of sufficient
evidence of it coming to the prosecutor's knowledge - rather than
within 6 months of the offence being committed, provided this
is done within 3 years of the offence occurring. The time limit
for prosecuting a number of other offences has been extended in
It gave the examples of section 31 of the Animal
Welfare Act 2006; section 11A of the Employment Agencies Act 1973
(inserted by paragraph 5 of Schedule 7 of the Employment Relations
Act 1999); and section 64A of the Public Health (Control of Disease)
Act 1984 (inserted by paragraph 22 of Schedule 11 of the Health
and Social Care Act 2008) among others.
121. The summary only nature
of the section 77 offence means that no one has been prosecuted
for destroying or altering disclosable data, despite the Information
Commissioner's Office seeing evidence that such an offence has
occurred. We recommend that section 77 be made an either way offence
which will remove the limitation period from charging. We also
recommend that, where such a charge is heard in the Crown Court,
a higher fine than the current £5000 be available to the
court. We believe these amendments to the Act will send a clear
message to public bodies and individuals contemplating criminal
204 Section 10(3) Back
Information Commissioner's Office, Freedom of Information Good
Practice Guidance No. 4. Time limits on considering the public
interest following requests for information under the Freedom
of Information Act 2000, February 2007. Back
Section 50 Back
Information Commissioner's Office, Freedom of
Information Good Practice Guidance No. 5 Time limits on carrying
out internal reviews following requests for information under
the Freedom of Information Act 2000, February 2007 Back
Q 218 Back
Ev w165 Back
Q 192 Back
Ev w1 See also David Holland's experience at Ev w3. Back
Q 25 Back
Ev 115 Back
Ev w165 Back
Ministry of Justice, Freedom of Information Act 2000, Statistics
on implementation in central government, 2010 Annual and Q 4:
October- December 2010, April 2011 Back
Ev 156 Back
Q 29 Back
Q 217 Back
See Schedule 1 Freedom of Information Act (Scotland) 2002
and Schedule 1 Freedom of Information Act 2000. Back
HL Deb, 15 February 2012, col 813 Back
Q 459 Back
Q 459 Back
Q 398 Back
Ev 156 Back
Ev w136 Back
Ev 137 Back
Q 459 Back
Q 219 Back
Ev 126 Back
Ev 137 Back
Ev w56 Back
Q 459 Back
Q 163 Back
Third Report from the Justice Committee, Session 2008-09,
The work of the Information Commissioner: appointment of a
new Commissioner, HC 146 Back
Ev 192 Back
Ev w47 Back
Q 163 Back
Q 219 Back
Q 219 Back
Section 127(1) of the Magistrates Court Act provides that "a
magistrates' court shall not try an information or hear a complaint
unless the information was laid, or the complaint made, within
6 months from the time when the offence was committed, or the
matter of complaint arose." Back
Ev 105 Back
Q 220 Back
Ev 156 Back
Q 220 Back
Q 221 Back
Ev 156 Back