In the past I recall a few cases where the Information Commissioner’s Office (ICO) had to adjudicate on its own compliance with the Freedom of Information Act 2000 (FOIA). As a public authority, the ICO must comply with FOIA in the same way that all other public authorities must (fundamentally, by responding to a request within twenty working days). In a few cases, the ICO’s investigation of itself would even be slightly critical (along the lines of “you could have handled this a bit better”). But I have never, until now, seen a case like this one.
Extraordinarily, here we have a decision in which we see the ICO (as “the Commissioner”) berating itself (as “the ICO”) for…failing to reply to its own investigators. The notice gives the details:
On 18 May 2021, the complainant wrote to the ICO…and requested information…
The ICO acknowledged the request for information on 19 May 2021…
To date, a substantive response has not been issued…
The complainant contacted the Commissioner on 19 June 2021 to complain about the failure by the ICO to respond to his request…
On 5 July 2021, the Commissioner wrote to the ICO, reminding it of its responsibilities and asking it to provide a substantive response to the complainant within 10 working days…
Despite this intervention the ICO has failed to respond to the complainant.
As the notice says (indeed, as all such notices say), failure to comply may now result in the ICO making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court. How on earth would this work though? As a matter of law, could a regulator certify its own non-compliance to the High Court in this way?
What a bizarre situation.
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