The ICO and records management

“The Tribunal is an unusual position in respect of this Appeal…”

The Freedom of Information Act 2000 (FOIA) requires a public authority, when someone makes a request for information, to say whether or not it holds it, and if it does, to disclose that information to the requester (subject to the application of any exemption). But what if it doesn’t know whether it holds it or not? What if, after it has said it can’t find the information, and after the Information Commissioner’s Office (ICO) has accepted this and issued a decision notice upholding the authority’s approach, it then discovers it held it all along? This is the situation the First-tier Tribunal (FTT) recently found itself faced with.

The facts of the case are relatively complex, but the issues turned on whether briefing notes, prepared for the Mayor of Doncaster Metropolitan Borough Council (DMBC) in the lead-up to a decision to withdraw funding for DMBC’s United Nations Day, could be found. The ICO had determined, in Decision Notice FS50503811 that

Ultimately the Commissioner had to decide whether a set of briefing notes were held by the Council. His decision, on the balance of probabilities, is that it does not

The requester appealed to the FTT, which, after initially considering the matter on the papers, ordered an oral hearing because of some apparent inconsistencies in DMBC’s evidence (I have to be frank, what exactly these were is not really clear from the FTT’s judgment (at paragraph 27). However, prior to that oral hearing DMBC located the briefing notes in question, so

the focus of the oral hearing was limited simply to establishing whether, at the time of the information request by the Appellant, DMBC knew that it held the information in the light of the searches that it had made in response to the Information Commissioner’s enquiries prior to his issuing the Decision Notice

In determining that it was satisfied that DMBC did not know, at the time of the request, that it held the information, the FTT was swayed by the fact that DMBC “even during the Information Commissioner’s enquiries, DMBC had maintained it had nothing to gain from ‘hiding’ the briefing notes” but also by the fact that DMBC owned up to poor records management practice in the period leading up to the request

In many senses it is more embarrassing for DMBC now to admit the truth that it had, historically, an unreliable and ineffective Records Management system than to continue to maintain that it could not find the requested information

It doesn’t surprise me that the FTT found as it did. What does surprise me, however, is that records management is not given a greater focus by the ICO. Although FOIA is not, primarily, a records management act, it does contain provisions relating to records management. Powers do exist both to help improve practice both generally (through guidance) and specifically (through the use of practice recommendations). As I’ve written before

section 46 of FOIA [requires] the Lord Chancellor to issue a code of practice for management of records. Section 9 of that Code deals with the need to keep records in systems that enable records to be stored and retrieved as necessary, and section 10 with the need to know what records are held and where they are.

Under section 47 of FOIA the [ICO] must promote the following of good practice by public authorities and perform his functions so as to promote the observance by authorities of the section 46 Code, as well as the requirements of the Act in general. And under section 48 he may issue a “practice recommendation” if it appears to him that the authority has not conformed with the section 46 Code. In investigating compliance with the Code he has the power (section 51) to issue an “information notice” requiring the authority to furnish him with the information. Failure to comply with an information notice can, ultimately, constitute contempt of court.

I appreciate that the ICO has a lot on its hands, but good records management is so very integral not just to good FOIA compliance, but also to good compliance with the other major statute the ICO oversees – the Data Protection Act 1998. Greater focus on records management could drive better overall compliance with information rights law.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.