Easy as 1-2-3…?

Has the ICO got its FOI sums wrong?

I wrote recently about a decision of the Information Tribunal where the Tribunal held that the Information Commissioner’s Office (ICO) had wrongly calculated the time for compliance with a request made under the Freedom of Information Act 2000 (FOIA) and consequently had said that the public authority in question had contravened its obligations under section 10(1) of FOIA, when in fact it had complied on time. 

One might have thought the ICO would have made sure that it didn’t make this counting mistake again, particularly in cases where an error can make the difference between requests being either compliant or not compliant with FOIA. I was rather surprised, therefore, to notice  a recently published decision notice by the ICO in which (if my calculations are correct) they have again wrongly calculated the time for compliance and consequently issued a decision against a public authority when in fact the public authority had complied with its obligations under section 10(1). As I have noted before, the 20 working day time for compliance with a FOIA request does not include bank holidays even where the bank holiday in question applies only in one part of the UK. So, for instance, a bank holiday in Scotland (say, St Andrew’s Day), but not in the rest of the UK, is still classed as a non-working day for the purposes of FOIA. In this instance one of the requests for information was made on March 16, 2014 and responded to on April 14 2014. The ICO said this meant that the public authority in question – the Student Loans Company – had taken 21 working days to respond. However this seems to overlook the fact that March 17 is a bank holiday in Northern Ireland, where it marks St Patrick’s Day. Accordingly it should not have been counted as a working day by the ICO for the purposes of FOIA. 

By my calculations the public authority responded on the 20th working day, they complied with their obligations under FOIA, and the ICO has issued a defective decision notice. I wonder if an appeal has been lodged.

There are a surprising number of bank holidays throughout the year, when one takes into account those in all parts of the UK, and it is worth bearing in mind that if one of those days falls within any of the putative 20 working days for compliance with a FOIA request then it will push the time for compliance back that one extra day. I reckon (and as nerdy as I am I’m not so nerdy as to have (yet) worked it out) that there’s probably something like a 50% chance that a FOIA request will actually contain a day that is a bank holiday, and maybe one that is not one that applies uniformly throughout the UK. All FOIA requesters, practitioners and, indeed, regulators, should bear this in mind.

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.

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28 Comments

Filed under Freedom of Information, Information Commissioner, Information Tribunal, Uncategorized

28 responses to “Easy as 1-2-3…?

  1. Alan M Dransfield

    For God’s Sake man, you are making a mountain out of a molehill. Who gives a damn if the ICO or a PA take ONE day extra to respond. What about the Vexatious Bull—- they all rely upon these days.

    • I think it’s important that the ICO gets the basics of the law right.

      • Alan M Dransfield

        Jon you really do amaze me at times ,no wonder you are big buddies with Tim Turner and Frankel the two self proclaimed guardian angels of the FOI. The ICO have used the vexatious BS over 500 times now and you are worried about 1 days delay

      • The post took me about 20 minutes in total to write – I don’t think it’s the most important issue in FOI, but nor do I think yours is.

      • Alan M Dransfield

        That’s where you are wrong my dear boy because the Dransfield Case is the LEADING CASE in the vexatious BS world of the FOIA, the ICO words not mine. The CoA rubber stamped the Gagging of Joe Public when the 3 Lady Judges upheld the Wikeley Vexatious decision on C3/2013/1855 Dransfield v ICO. My case is by far and above more important than Rob Evans and the Black Spider letters which are in descending order of merit because the EXISTENCE of the FOIA is RELIANT upon the Dransfield Case.
        If I lose the SC case, the FOIA DIES,if I win the FOIA will live on.

      • Alan M Dransfield

        We agree to disagree

      • Alan M Dransfield

        In actual fact Jon , you are not qualified to make such statements,ie my FOIA request was clearly vexatious.I say that with the GREATEST of confidence because the As Built Health and Safety files (ABHSF) which is now in the Public Domain clearly supports my FOIA request for the Rugby Bridge WAS INDEED well founded as the Bridge has been devoid of any Lightning protection for the last decade.
        To reach a vexatious conclusion would require some degree of Civil /Electrical Construction Knowledge and in particular the importance of the ABHSF.

        By his own admittance Tim Turner is NOT a FOIA expert but any fair minded person reading his website would believe he is a FOIA GURU.
        Just as I thought, Tim Turner is NOT what it says on the Tin. Should read Gobs—– Bull—–,barrack-room lawyer.
        In other words Turner, Dransfield the FOIA saviour has exposed you for what you are.

        By the way Jon, have you read the ABHSF for the Rugby Bridge?
        .
        BTW 2. I notice the Olympic Stadium which is another of my FOIA babies is subject to a Capacity Crowd of 35,000 . Karen Brady WILL be pleased.
        Half a billion pounds for a Flagship Stadium , well done

      • We have had this discussion before. Vexatiousness is about the request, not the underlying information. I’m not sure there’s any point in rehashing this. If you win in the Supreme Court I’ll rethink my position. Until then, I won’t.

  2. I have never claimed to be anything other than a data protection and (less often) FOI trainer. I believe it is Mr Dransfield who sees himself as the Saviour of Freedom of Information, although given the current moves on FOI, one could argue that he is an unreliable Messiah.

  3. JT Oakley

    Just wondering if anyone has been smart enough to produce an ap or Internet calendar for working out the correct number of days for an FOIA request?

    • Not yet that I’m aware of. Matt’s tool on FOIDirectory doesn’t include bank hols but I think he’s working on it: http://www.foi.directory/foi-tools/automatic-foi-spreadsheet/

    • Alan m dransfield

      JT I lost your email lease contact me

    • I’m sorry if I’m breaking with tradition by actually commenting on an issue that’s in the post I’m commenting on 😀

      WhatDoTheyKnow.com has to have the UK public holidays programmed into it so it calculates when things have gone beyond the longstop. It either gives the option of suggesting dates which must then be altered by a human if need be and then confirmed, or it can import an ICAL file. I don’t know where it gets its suggestions from, but it’s open source on Github so people (unlike me) who would know where to look would undoubtably be able to find out. Its guess is pretty accurate, but we do have to add some dates in. The ones for 2015 are here: http://puu.sh/jZytE/7ae9e58218.png

      Howcome Northern Ireland and Scotland get 10 bank holidays a year, where England and Wales only get 8? That’s not fair! (actually, I don’t like bank holidays, I find them blooming depressing.)

      Also, because this is my least favourite and longest acting bee in my bonnet, the requirement is to respond “promptly” and the 20 working days is just a “long stop” and a separate requirement. I don’t like the way this is written in WhatDoTheyKnow’s help files because it’s bloody patronising to FOI officers, but it is actually true ofc

      Cheers

      Doug

  4. Jt Oakley

    Thanks..

    Perhaps Matt could refine it and sell it – as an ap.

    That’ll be 10 percent Matt…

  5. I’m sorry if I’m breaking with tradition by actually commenting on an issue that’s in the post I’m commenting on 😀

    WhatDoTheyKnow.com has to have the UK public holidays programmed into it so it calculates when things have gone beyond the longstop. It either gives the option of suggesting dates which must then be altered by a human if need be and then confirmed, or it can import an ICAL file. I don’t know where it gets its suggestions from, but it’s open source on Github so people (unlike me) who would know where to look would undoubtably be able to find out. Its guess is pretty accurate, but we do have to add some dates in. The ones for 2015 are here: http://puu.sh/jZytE/7ae9e58218.png

    Howcome Northern Ireland and Scotland get 10 bank holidays a year, where England and Wales only get 8? That’s not fair! (actually, I don’t like bank holidays, I find them blooming depressing.)

    Also, because this is my least favourite and longest acting bee in my bonnet, the requirement is to respond “promptly” and the 20 working days is just a “long stop” and a separate requirement. I don’t like the way this is written in WhatDoTheyKnow’s help files because it’s bloody patronising to FOI officers, but it is actually true ofc

    Cheers

    Doug

    • Jt Oakley

      Thank you Doug..

      But, as retired newspaper editor, I’d say that sometimes a person doesn’t want to use WDTK – for the obvious reason that it’s responses are public.

      N Ireland and Scotland get two extra days?

      Pfft.

  6. Keith Atkinson

    Mr Dransfield, timing in law is very important and not something to be treated with such disdain as you seem to have done. I am sure in all your appeals you will have abided by the courts case management on timings and yes your fight on s14 is more important than 1 day but nonetheless one day is still non negotiable in the eyes of the law

    The much more important point to me is that section 10 (1) places an obligation of the public body to respond promptly (as soon as reasonably practicably) and many do not and leave it until the last day or after the last day.

  7. Alan M Dransfield

    Just wee update on my infamous vexatious decision(s).

    I had a video link hearing with the UT on Mon on appeal from another Vexatious decision in April 2014 and the Judge Informed me he would put this particular case(GIA /2034/2014 in abeyance until the Supreme Court ruled on the Infamous Dransfield Case GIA/3037/2011 Dransfield v ICO & Devon County Council

    My latest vexatious decision is related to my FOIA request dated Feb 2008 for technical data on the Exeter 6 PFI schools which I claim are a Boondoggle and H&S timebomb.
    I asked the Judge what ICO guidelines the ICO were reliant upon and he didn’t know.??!!
    They are applying Sep 2014 guidelines which is the New 35 page Vexatious BS guidelines.In essence they applying retrospectful vexatious guidelines when they should be applying the original 5 points 2 page vexatious guidelines.
    Happy days.
    Supreme Court decision due any day. Twitchy ass time at the ICO ,no wonder they are jumping ship.??!!

    • Jtoakley

      You might be interested to know that the ICO state that they ignore the title of a request ( which I’d always considered to part-define the scope) in its reading of the request.

      Astounded by this editing, I rang the ICO and asked when this rule had come into operation and where was it in the guidance, so that I could warn other people about its existence.

      A very cross employee ( the rest have been very polite,.so that was surprise number 2 ) barked at me and said that couldn’t I read the decision that he’d just sent me.. It was in that. So therefore it stood.

      I’ve asked that the ICO clarify the position. I can knit the tithe in with requests but I think other requesters should know what the ICO edits out of their requests.

      • PS I’ve asked the ICO about this… https://www.whatdotheyknow.com/request/policy_and_procedures_about_the/new (again, acting of my own initiative and not on behalf of WhatDoTheyKnow)

      • JtOakley

        Thank you kingqueen.

        The whole thing is bizarre from start to finish.

        https://www.whatdotheyknow.com/request/appointment_of_qualified_persons#comment-64722

        17. The Commissioner disagrees with the complainant’s view. Requesting “all” communications is far removed from asking for two documents. The complainant has argued that the title she gave to the request on the Whatdotheyknow site, as well as the second sentence of her request, shows the specific information she wanted.

        18. However, the Commissioner’s view is that the title is immaterial, as this is not part of the request. The second sentence merely states the information that the complainant would like to see included, it does not specifically state that it is the entirety of the relevant information that she wishes to obtain. Section 8(1)(c) of the Act states a request must “describe the information requested”. In this instance, the complainant asked for all communications, so the Commissioner’s decision must reflect that.

        ::::

        My request had a title. As do all WDTK requests.

        History..

        It’s the CO attempting to cover up the fact that there never was a Dame Julie Mellor QP letter- BEFORE she used her QP status to reject a request.

        That’s why it’s embarassing – and was never likely to get a straight answer.

        The CO first ignored the request entirely, then sent her a ‘reappointment QP letter’ months after the request …. but still can’t produce the appointment letter – which must logically exist.

        :::

        As for the summary/ title dismissal I’ve asked the ICO for clarification and sent an email stating that I’m waiting for this – BEFORE proceeding.

        Because if this cross caseworker is right….. because his decision has been made ….all titles of requests will be ignored – even if they weren’t in the past. At least that was the gist of his somewhat voluable argument,

        Which should be made plain to requesters.

        If this rule/ guidance existed before – then the ICO will presumably tell me when and why it was made.

        :::

        So my email to the ICO, stated was that I can’t challenge this decision – without an authoritatve response on the subject.

        If the above is correct, then it wouid just be a waste of time,

        However, I’ve now received an email stating that I’ve challenged the summary/title decision – without me having received the answer to my request the above.

        Odder and odder.

  8. I am *hoping* that this was one maverick individual making a stuff-up, because it seems to me ludicrous that the title / subject of a FOI request should not form part of the request. I *hope* that the ICO will correct their interpretation of this, because it’s ludicrous (in my opinion.)

    Certainly none of the ICO Lines To Take / Casework Advice Notes make that assumption (I indexed them all and put them on the website) and I’m not aware of any of their public guidance that states this, or any other decision notice or tribunal decision.

    I personally would support you if you were prepared to take this issue to the First Tier Tribunal. Meanwhile I think I will ask the ICO where this interesting… decision came from, i.e. what policies and procedures support this assumption.

    Doug (acting on his own initiative and not as a volunteer administrator of WhatDoTheyKnow)

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