(Data)setting an example

Is the ICO failing to comply with its own obligations under FOI law?

Some UK regulators are subject to the laws or rules they themselves oversee and enforce. Thus, for example, the Advertising Standards Authority should avoid advertising its services in contravention of its own code of advertising practice, the Environment Agency should avoid using a waste carrier who is not authorised to carry waste, and the Information Commissioner (ICO) – as a public authority under Schedule 1 of the same – should not breach the Freedom of Information Act 2000 (FOIA). However, I think I can point to numerous examples (I estimate there are 57 on its own website at the time of writing this) where the last has done precisely this, possibly unknowingly, or – if knowingly – with no contrition whatsoever.

In 2012 sections 11 and 19 of FOIA were amended by the Protection of Freedoms Act 2012 (POFA). POFA inserted into FOIA what are colloquially known as the “dataset provisions”. For our purposes here, what these say is that

Under its publication scheme a public authority should publish datasets that have been requested [under FOIA], and any updated versions it holds, unless it is satisfied that it is not appropriate to do so.

In short – and I take the wording above from ICO’s own guidance – if someone asks ICO for a dataset under FOIA, ICO must disclose it, put it on its website, and regularly update it (unless it is “not appropriate” to do so).

“Dataset” has a specific, and rather complex, meaning under POFA, and FOIA. However, the ICO’s own guidance nicely summarises the definition:

A dataset is a collection of factual information in electronic form to do with the services and functions of the authority that is neither the product of analysis or interpretation, nor an official statistic and has not been materially altered.

So, raw or basic data in a spreadsheet, relating to an authority’s functions, would constitute a dataset, and, if disclosed under FOIA, would trigger the authority’s general obligation to publish it on its website and regularly update it.

Yet, if one consults the ICO’s own disclosure log (its website page listing FOI responses it has made “that might be of wider public interest”), one sees multiple examples of disclosures of datasets under FOI (in fact, one can even filter the results to separate dataset disclosures from others – which is how I got my figure of 57 mentioned above) yet it appears that none of these has ever been updated, in line with section 19(2A)(a)(ii) of FOIA.

Some of the disclosures on there are of datasets which are indeed of public interest. Examples are: information on how many FOI etc requests ICO itself receives, and how timeously it handles them; information on the numbers and types of databreach reports ICO receives, and from which sectors; information on how many monetary penalties have been paid/recovered.

It’s important to note that these 57 disclosures are only those which ICO has chosen, because they are “of wider public interest”, to publish on its website. There may well be – no doubt are – others.

But if these dataset disclosures are, as declared, of wider public interest, I cannot see that ICO could readily claim that its reason for not updating them is because it is “not appropriate” to do so.

It may be that ICO feels, as some people have suggested, that the changes to FOIA wrought by POFA might not have met any pressing public demand for amended dataset-access provisions, and, therefore, compliance with the law is all a bit pointless. But there would be two problems with this, were it the case. Firstly, ICO is uniquely placed to comment on and lobby for changes to the law – if it thinks the dataset provisions are not worth being law, then why does it not say so? Secondly, as the statutory regulator for FOIA, and a public authority itself subject to FOIA, it is simply not open to it to disregard the law, even were it to think the law was not worth regarding.

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.