Wirral borough council is on the watch list at the moment. I would really like to send in a good practice squad to Wirral borough council, but I do not have the powers do that. I am not picking on Wirral; it is just an example that comes to mind
So said Commissioner Christopher Graham in evidence to the Justice Committee during a recent one-off session on the work of the Information Commissioner’s Office (ICO).
The rather self-contradictory observation that he was not picking on that particular public authority is not the most interesting point about his comments (although it does seem a bit hard on Wirral, when the Department for Education, the Department for Work and Pensions and the Office of the First Minister and Deputy First Minister of Northern Ireland are all also currently subject to formal monitoring for especially poor compliance with the Freedom of Information Act 2000 (FOIA)).
What does strike me, though, is his complaint that he lacks powers to “send in a good practice squad”. Although strictly true, there is an enforcement power which he does have, which equates to the power to send in a “good practice squad”, albeit with the consent of the public authority concerned. To my knowledge, however, this is a power he and his predecessor have never exercised.
Section 47(3) of FOIA says
The Commissioner may, with the consent of any public authority, assess whether that authority is following good practice
In the ICO’s own guidance on his FOIA regulatory action policies, he says
An assessment may be conducted with the consent of a public authority. It is designed to determine whether an authority is following good practice – and specifically, to assess its conformity to the codes of practice [made under sections 45 and 46 of FOIA]
A Standard Operating Procedure document (disclosed, ironically enough, by the ICO in response to a FOIA request) suggests that the ICO sees his policy of monitoring FOIA compliance in specific poorly-performing authorities as constituting a s47(3) assessment. However, my feeling is that this does not restrain him from extending his actions under this section to physically sending in “good practice” teams. Certainly the Scottish Information Commissioner sees his equivalent powers under section 43(3) of the Freedom of Information (Scotland) Act 2002 as a means of conducting such good practice visits, and he does approximately twelve of them a year.
I appreciate that the ICO prefers to take a more informal route towards enforcing FOIA compliance, by means, for example, of monitoring at a distance, or by issuing undertakings (“The culmination of negotiated resolution, [committing] an authority to a particular course of action in order to improve its compliance”). But there is doubt about how seriously some public authorities treat this informal approach. If he really did want to send in “good practice squads” I think he could certainly do so (and if an authority were to refuse consent, it could potentially trigger stronger powers, like practice recommendations and enforcement notices).