Lay, Laddie, Lay

In which I suggest the Information Commissioner could lay a report at Westminster drawing attention to compliance with time limits under the FOIA Act

The Scottish Information Commissioner (SIC), Rosemary Agnew, this week used the powers available to her under section 46(3) of the Freedom of Information (Scotland) Act 2002 (FOISA) to lay a report before the Holyrood Parliament. The report draws MSPs’ (and others) attention to

the issue of failure [by Scottish public authorities] to respond to information requests, and to stimulate debate about what we can collectively do to address it

The background is that approximately 25% of complaints to Agnew’s office in 2013/14 were about failures to respond to requests for information. Section 46(3) of FOISA permits the laying of reports “from time to time” by the SIC with respect to her functions. It thus confers a broad discretion on the SIC to draw attention to matters of concern to her. The report says

– Many public authorities have shown that it is possible to respond on time to large volumes of requests, but too many authorities are still not doing so. Delays and obfuscation are not only damaging to authorities’ relationships with individual requesters but also Scotland’s reputation for openness and transparency.
– The FOI experience is not consistent for all requesters or types of requesters
– Failure to respond is an issue, but it is not uniform across all Scottish public authorities.  Issues are more acute in some authorities than others

Requesters in the rest of UK experience similar difficulties, and similar lack of consistency, whereby some authorities are exemplary in the timeliness of responses to FOI requests, and some are very poor. As that last link indicates, the rUK Information Commissioner (IC) does monitor authorities for FOI compliance. He has also issued informal undertakings and even on occasions issued enforcement notices against authorities performing particularly poorly. However, what evidence there is does not suggest that this has led to overall improvements. Since 2009 the number of decision notices issued annually by the IC in which section 10 (“time for compliance”) was a factor have been as follows: 223 in 2009, 276 in 2010, 371 in 2011, 227 in 2012, 223 in 2013. These figures represent approximately 25% of all cases. They are not directly comparable with the SIC’s figures (which represent complaints made, rather than decisions notices issued) but they do suggest similar problems both sides of the border.

The IC does have essentially the same powers as the SIC to lay reports before Parliament (under section 49(2) of the Freedom of Information Act 2000 (FOIA)). However he has never exercised this FOIA power (there have been a couple of reports laid relating to data protection concerns). Given the serious concerns expressed by commentators about certain authorities’ attitude to FOIA, perhaps a report to Parliament would be a way of promoting debate – and improved compliance – which regulatory action has, to date, failed to achieve.

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Filed under Cabinet Office, FOISA, Freedom of Information, Information Commissioner

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