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.