This is a House of Commons Committee report, with recommendations to government. The Government has two months to respond.
Date Published: 29 April 2022
In April 2021, the Cabinet Office lost a case before the First Tier Tribunal in relation to data held by its ‘Clearing House’—a body which coordinates responses to certain Freedom of Information (“FOI”) requests across Government. Prior to the Tribunal proceedings, the Clearing House had an opaque status. Following the Tribunal, the Committee launched this inquiry to provide a view on the transparency surrounding the Clearing House, the Cabinet Office’s efforts to review the Clearing House, and the Cabinet Office’s oversight of and attitude towards the FOI Act 2000 more generally.
In 2006, our predecessor Committee recommended the Clearing House needed to be more transparent and publish performance data. The Government however did not follow those recommendations. Details on the Clearing House’s operations, including how effectively it operates, cannot be seen based on existing disclosures, and the Cabinet Office has been unable to provide complete and comprehensive data on the Clearing House. The Committee echoes the call of our predecessor Committee by emphasising the need for more casework data to be made public. The Committee also notes with concern a lack of effective record keeping in the Clearing House itself.
Following the First Tier Tribunal judgment, the Information Commissioner’s Office (ICO) requested to undertake an FOI audit of the Clearing House. The Committee was disappointed to learn that this offer was rejected, and the Cabinet Office has not provided convincing justifications for this rejection. The Committee finds this decision to be misjudged given the expertise and independence of the ICO, and the Cabinet Office has yet to provide a satisfactory justification for the rejection.
The Cabinet Office has instead announced a short internal review following the launch of this inquiry. As of April 2022, the Cabinet Office still has not established who will undertake the review, what their Terms of Reference are or their expected timetable for completion. This is an unacceptable delay. From the limited amount we know, the suggested direction of the review’s Terms of Reference lacks the same depth as the ICO’s proposed FOI audit approach. To reassure the public and this Committee, we recommend that the Cabinet Office should instead expose itself to rigorous external third-party scrutiny from the ICO and accept the ICO’s offer of an audit. The findings of this audit should be completed by October 2022 and put in the public domain, after which the Cabinet Office should publish an action plan.
During this inquiry, the Committee has received evidence of poor FOI administration in the Cabinet Office and across Government which appears to be inconsistent with the spirit and principles of the FOI Act. Notably in relation to non-applicant blind handling, how Public Interest Tests are evaluated and delays in FOI handling. The Committee recommends the Cabinet Office should review these and its own practises to ensure it models best practise and implements robust procedures to prevent reoccurrence.
As the lead department on FOI, we believe that the Cabinet Office should be held to a higher standard as an example of best practice to other Departments, to ensure a vibrant FOI culture across Government. Evidence submitted to the Committee suggests up to 2019 the Cabinet Office granted fewer FOI requests and withheld more information than other Departments, thought this may have improved in recent years.
The Committee takes the view that leadership matters. The Cabinet Office needs to work harder to ensure a strong and enthusiastic tone from the top that supports FOI. Recent statements by the Cabinet Office emphasising the importance of FOI do not go far enough given actions elsewhere in Government to critique and limit the FOI Act notably in relation to the Advanced Research and Invention Agency (ARIA). The Committee recommends a more proactive and forward-looking approach which improves responses to FOI requests across Government and addresses concerns about the use of WhatsApp and other private messaging systems to evade the FOI Act.
The ICO plays an important advocacy and enforcement role in the FOI landscape. The ICO explained to the Committee that its stretched FOI resources are impacting the deliverability and timeliness of its FOI services. Whilst policy responsibility for the Information Commissioner’s FOI work lies with the Cabinet Office, its financial resourcing lies with the Department for Culture Media and Sport. This is an unsatisfactory arrangement as there should be a greater alignment between resourcing and policy. As the departmental sponsor for FOI policy, the Cabinet Office should work more closely with the ICO and ensure the recent improvement in working relations is sustained.