Category Archives: Freedom of Information

(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.

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FOI needs a strong regulator

Slightly more than twenty working days ago I made a request to a government department under the Freedom of Information Act 2000. Following the structure of section 1(1) of the same, I asked

Please confirm whether you hold [X information] regarding [Y]

If you hold this information, please disclose it.

There are relatively mundane reasons why I am keen to know the first point, and, following on from that, to have the information if it exists.

On the twentieth working day (give or take a bank holiday or two) I received a reply to the first point, but total silence on the second:

I can confirm that [government department] does hold [X information] regarding the [Y].

Although this is rather a bizarre approach to an FOI request (FOIA is after all, primarily about access to information, not just knowledge that it exists) I have no reason to think that the failure to note the second point of my very short request was anything other than an innocent mistake.

Accordingly, I pointed the mistake out to the government department, asking them to send the information by return. (I had to do this by email, because no phone number is given on the correspondence or on the relevant (sparse) website (query whether the service is accessible, therefore, to people who may have difficulties in communicating in writing.)) However, not only did I not get the information by return, I got a template reply, and a new reference number, indicating that my follow-up email is being treated as a wholly new request. I would not be surprised for it to take another twenty working days to get a substantive reply (if I’m wrong, I will update this post accordingly).

So what to do? Well, I could complain to the government department, or ask for an internal review, but that would likely take at least another twenty working days to get a response. I could complain to the Information Commissioner’s Office, but, anecdotally, I understand they are taking some months to allocate and deal with complaint, and the only likely outcome would be a declaration that the government department had failed to comply with its section 10 and section 17 FOIA obligations, and giving them another period of days to comply. I can’t make an application for judicial review because a) the idea is completely ridiculous (have you seen my bank balance?) and b) in March the High Court rather peremptorily dismissed an argument that JR should be available for FOIA cases of urgency (on the grounds that the right of appeal under the statutory scheme was sufficient.

And FOIA delays are not isolated incidents; the BBC’s Martin Rosenbaum has written recently, following up his and others’ research, about the apparent contempt with which some public authorities treat FOIA and the Information Commissioner. Yet the latter appears unwilling, despite having the powers to do so, to act. As the Campaign for Freedom of Information recently noted, her recent draft regulatory action policy effectively ignored the fact that she is responsible for FOIA regulation, as well as for data protection and eprivacy.

Data protection and privacy are certainly hot topics (try counting the number of arriviste consultants who’ve sprung up over the last year to get an idea of how hot) but freedom of information laws are a legislative expression of another fundamental human right. I don’t think it’s the case that as a society we just don’t care about FOI (look back to the MPs’ expenses scandal to see how important and high-profile it can be) so why is it that there appears to be no effective mechanism to enforce our rights in a timely way against a recalcitrant public authority?

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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FOIA’s not the only route

News emerges of a potential judicial review attempt to force disclosure of government Brexit papers not under FOI but under common law and human rights to information

More than three years ago the Supreme Court handed down judgment in a long-running piece of litigation under the Freedom of Information Act 2000 (FOIA). Journalist Dominic Kennedy had attempted to get disclosure from the Charity Commission of information relating to inquiries into George Galloway’s “Mariam Appeal”. The Commission said, in effect, that the absolute exemption to disclosure at section 32(2) of FOIA was the end of the story, while Kennedy argued that Article 10 of the European Convention on Human Rights imposed a positive obligation of disclosure on public authorities, particularly when the requester was a “public watchdog” like the press, and that s32(2) should be read down accordingly to require disclosure in the circumstances (I paraphrase). In his leading opinion Lord Mance gave this stirring introduction:

Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming. These competing considerations, and the balance between them, lie behind the issues on this appeal.

What was most interesting about the judgment in Kennedy, and, again, I disrespectfully heavily paraphrase, was that the Supreme Court basically said (as it has been wont to do in recent years) – “why harp on about your rights at European law, don’t you realise that our dear old domestic friend the common law gives you similar rights?”

the route by which [Mr Kennedy] may, after an appropriate balancing exercise, be entitled to disclosure, is not under or by virtue of some process of remodelling of section 32, but is under the Charities Act construed in the light of common law principles and/or in the light of article 10 of the Human Rights Convention, if and so far as that article may be engaged

This greatly excited those in the information rights field at the time, but since then, there has been little of prominence to advance the proposition that FOIA rights are not the only route [Ed. there’s a great/awful pun in there somewhere] but it did get a positive airing in R (Privacy International) v HMRC [2014] EWHC 1475 (Admin) (on which see Panopticon post here).

Yesterday (12 October) barrister Jolyon Maugham announced that his Good Law Project was seeking donors towards a judicial review application if the government refused to publish information and reports comparing the predicted economic harm of Brexit with the predicted economic benefits of alternative free trade agreements. Keen followers of information rights litigation will note that Tim Pitt-Payne  and Robin Hopkins are instructed: the potential respondents should quake in their boots.

Well worth watching this, and well worth – in my opinion – donating towards the cause.

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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FOI enforcement – if not now, when?

Recent ICO decision notices show the Home Office and MoJ repeatedly simply failing to respond to FOI requests. Surely the time has come for ICO action?

The Information Commissioner’s Office (ICO) recently stated to me that they were not monitoring the Home Office’s and Ministry of Justice’s (MoJ) compliance with the statutory timescales required by section 10 of the Freedom of Information Act 2000 (FOIA)

This was despite the fact that they’d published decision notices about delays by those two government bodies which reported that “The delay in responding to this request will be logged as part of ongoing monitoring of the MoJ’s compliance with the FOIA”. This was not formal monitoring, I was told; rather, it was informal monitoring. Ah. Gotcha.

So what does trigger formal monitoring? Interestingly, the ICO’s own position on this has recently changed, and got a bit stricter. It’s generally meant to be initiated in the following circumstances:

our analysis of complaints received by the ICO suggests that we have received in the region of 4 to 8 or more complaints citing delays within a specific authority within a six month period

(for those authorities which publish data on timeliness) – it appears that less than 90% of requests are receiving a response within the appropriate timescales. [this used to be 85%]

Evidence of a possible problem in the media, other external sources or internal business intelligence.

Despite the apparent increase in robustness of approach, the ICO do not appear to be monitoring any public authorities at the moment. The last monitoring took place between May and July 2016 when Trafford Council were in their sights. Although they are not mentioned in the relevant report, an ICO news item from July last year says that the Metropolitan Police, who have been monitored off and on for a period of years without any real outward signs of improvement, were also still being monitored.

But if they aren’t monitoring the compliance of any authorities at the moment, but particularly the Home Office and the MoJ, one is led to wonder why, when one notes the pattern in recent ICO decision notices involving those two authorities. Because, in 16 out of the last 25 decision notices involving the Home Office, and 6 out of the last 25 involving the MoJ, the ICO has formally issued decision notices finding that the authorities had failed to comply with the FOI request in question, by the time the decision notice was issued.

At this point, it might be helpful to explain the kind of chronology and process that would lead up to the issuing of such decision notices. First, a request must be made, and there will have been a failure by the authority to reply within twenty working days. Then, the requester will normally (before the ICO will consider the case) have had to ask for an internal review by the authority of its handling of the request. Then, the requester will have complained to the ICO. Then, the ICO will have normally made informal enquiries of the authority, effectively “geeing” them up to provide a response. Then, as still no response will have been sent, the ICO will have moved to issuing a formal decision notice. At any point in this process the authority could (and should) still respond to the original request, but no – in all of these cases (again – 16 of the last 25 Home Office decisions, 6 of the last 25 MoJ ones) the authorities have still not responded many months after the original request. Not only does this show apparent contempt for the law, but also for the regulator.

So why does the ICO not do more? I know many FOI officers (and their public authority employers) who work their socks off to make sure they respond to requests in a timely manner. In the absence of formal monitoring of (let alone enforcement action against) those authorities who seem to ignore their legal duties much of the time, those FOI officers would be forgiven for asking why they bother: it is to their credit that bother they still do.

Elizabeth Denham became Information Commissioner in July last year, bringing with her an impressive track record and making strong statements about enforcing better FOI compliance. Her first few months, with GDPR and Brexit to deal with, will not have been easy, and she could be forgiven for not having had the time to focus on FOI, but the pressing question now surely is “if not now, when?”

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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MPs have rights too

The Guardian reports on MPs’ concerns that IPSA’s proactive commitment to transparency is putting them at risk. Could those MPs use the Data Protection Act to stop IPSA publishing?

Anyone who has worked in the fields of Freedom of Information (FOI) and transparency will have come across colleagues or third parties who fear that one will simply disclose information, including personal information, into the public domain, without any thought. The reality is very different: FOI and transparency  professionals need to be expert not only in FOI law, but also other laws, such as breach of confidence, and, especially, the law of data protection: the FOI Act’s most cited exemption is at section 40(2), which provides an absolute exemption to disclosure where to do so would contravene someone’s rights under the Data Protection Act 1998 (DPA).

With this in mind, and at least on the face of things, I have some sympathies with MPs concerned at proactive disclosure of details of mileage claims by IPSA (the Independent Parliamentary Standards Authority). (Although the law requires candidates for parliamentary seats to declare their home address, as UKIP’s Paul Nuttall has recently been reminded, candidates can ask that the addresses not be made public.) The Guardian reports that the SNP’s Angus Robertson has ordered colleagues to stop submitting claims, because

data now required to make a claim for mileage, including the locations of journeys travelled to and from on a daily basis, was now being publicised [by IPSA]

Robertson says

Ipsa have been aware for some time that they are inadvertently confirming the home locations of parliamentarians, which runs contrary to basic security advice

Although IPSA appear to dispute that what is being published could locate specific properties, it is important to note that the expenses information being published is the personal data of the MPs involved. Therefore, any processing of it by IPSA must be in accordance with their obligations under the Data Protection Act 1998 (DPA). The first data protection principle (in Schedule One of the DPA) requires that processing must be fair and lawful: if Robertson and others are right that there is a risk of disclosure of their home addresses (maybe by combining the IPSA data with other publicly available data), there is a strong argument that the processing is not fair.

So what can MPs do? Well, in addition to refusing to submit claims (which is rather cutting off one’s nose to spite one’s face), the DPA offers a possible option. Section 10 allows a data subject to serve a notice in writing requiring a data controller to cease a specified act of processing, on the grounds that the processing is causing unwarranted substantial distress. Upon receipt of such a notice the data controller has twenty one days to respond, either by ceasing the processing, or stating why it considers the notice unjustified. At that point the data subject can ask a court to rule on whether the notice was justified, and order such steps as are appropriate.

Were an MP or MPs to serve such a notice, it might be difficult for IPSA to dispute the potential for substantial distress to be caused – if MPs reasonably fear that disclosure of their home addresses could occur (and it seems to me to be quite possible that they could – a location frequently travelled from at the start of a day, and to at the end of the day is quite likely to be a place of residence) then, given the horrendous murder of Jo Cox last year, and general ongoing security threats, I don’t think it would be surprising for such distress to be caused. And if the distress caused is real and substantial, could IPSA say it was warranted? I very much doubt it – the publication of this information is not necessary for the performance of IPSA’s core functions.

IPSA say that they have “consulted police” and feel that there is not a risk, although the Guardian suggests that both the Met and “senior security sources” have expressed concerns.

MPs’ expenses of course play an important part in the history of FOI in the UK, and some of the abuses of the system which were revealed when the requested information was leaked to the Telegraph were egregious (although it’s always worth remembering that were it not for the leak, a lot of the more gory details would probably not have emerged). But threats to MPs are real and serious, and one wonders why IPSA, even if it thinks the risk of identification of home addresses is low or even non-existent would not want to review the practice. A section 10 notice would, though, force the issue.

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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ICO FOI Decision Notices – insufficient attention to detail?

Anyone used to reading Freedom of Information Act 2000 (FOIA) decision notices from the Information Commissioner’s Office (ICO) will be familiar with this sort of wording:

The Commissioner has concluded that the public interest favours maintaining the exemption contained at section x(y) of FOIA. In light of this decision, the Commissioner has not gone on to consider the public authority’s reliance on section z(a) of FOIA.

In fact, a search on the ICO website for the words “has not gone on” throws up countless examples.

What lies behind this approach is this: a public authority, in refusing to disclose recorded information, is entitled to rely on more than one of the FOIA exemptions, because information might be exempt under more than one. An obvious example would be where information exempted from disclosure for the purposes of safeguarding national security (section 24 FOIA) would also likely to be exempt under section 31 (law enforcement).

One assumes that the ICO does this for pragmatic reasons – if information is exempt it’s exempt, and application of a further exemption in some ways adds nothing. Indeed, the ICO guidance for public authorities advises

you [do not]  have to identify all the exemptions that may apply to the same information, if you are content that one applies

Now, this is correct as a matter of law (section 78 of FOIA makes clear that, as a general principle, reliance by public authorities upon the Act’s exemptions is discretionary), and the ICO’s approach when making decisions is understandable, but it is also problematic, and a recent case heard by the Information Tribunal illustrates why.

In Morland v IC & Cabinet Office (EA/2016/0078) the Tribunal was asked to determine an appeal from Morland, after the Cabinet Office had refused to disclose to him minutes of the Honours and Decorations Committee, and after the ICO had upheld the refusal. As the Tribunal noted

The Cabinet Office refused the Appellant’s information request in reliance upon s. 37 (1) (b) and s. 35 (1) (a) of the Freedom of Information Act 2000 (“FOIA”) [and the ICO] Decision Notice found (at paragraph 13) that the exemption under s. 37 (1) (b) was 5 engaged by the request and (at paragraph 25) that the public interest favoured maintaining the exemption “by a narrow margin”.  The Decision Notice expressly did not consider the Cabinet Office’s reliance on s. 35 (1) (b). [emphasis added]

The problem arose because the Tribunal found that, pace the ICO’s decision, the exemption at section 37(1)(b) was not engaged (because that section creates an exemption to disclosure if the information relates to the conferring by the crown of an honour or dignity, and the information request related to whether an entirely new honour should be created). But what of the exemption at s35(1)(b)? Well, although it would not always be the case in similar circumstances, here the Tribunal and the parties were in a bind, because, as the Tribunal said

We are left with a situation where, as the Decision Notice did not reach a conclusion on that issue, none of the parties appear to have regarded s. 35 (1) (a) as being seriously in play in this appeal, with the effect that we have received limited argument on that issue

There is no power to remit a decision to the ICO (see IC v Bell [2014] UKUT 0106 (AAC) (considered in a Panopticonblog post here), so the Tribunal had to make findings in relation to s35, despite a “concern whether it is right to do so”. On the expressly limited evidence before it it found that the exemption was not engaged at the time of the request, and, accordingly, upheld Morland’s appeal, saying that it

[regarded] the failure of the Decision Notice to determine a key issue between the parties as rather unsatisfactory

Whether this will lead the ICO to revisit its apparent policy of, at least at times, focusing on only one of multiple claimed exemptions remains to be seen. It’s not often that I have sympathy with the Cabinet Office when it comes to matters of FOIA, but there is a modicum here.

Nonetheless, I think what this case does suggest is that a public authority should, when faced with an appeal of an ICO Decision Notice upholding a FOIA refusal, give strong consideration to whether it needs to be joined to the appeal (as, admittedly, the Cabinet Office was here) and to make sure that its response to the appeal (under part 27 of the Tribunal Rules) fully deals with all applicable exemptions, notwithstanding the contents of the Decision Notice. In this way, the Tribunal can, where necessary, take as fully-apprised a decision as possible on all of those exemptions.

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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The Reading of the 30,000

There is some irony in the quite extraordinary news that the Independent Commission on Freedom of Information received 30,000 submissions in response to its public call for written evidence: one of the considerations in the call for evidence was the fact that “reading time” cannot currently be factored in as one of the tasks which determines whether a request exceeds the cost limit under section 12 of the FOI Act. 

Lord Burns has now announced that

Given the large volume of evidence that we have received, it will take time to read and consider all of the submissions

Well, yes. The Commission originally planned to report its findings “before the end of the year” (that is, the parliamentary year, which ends on 17 December). It also planned to read all the evidence which was before the Justice Committee when it conducted its post-legislative scrutiny of FOIA in 2012, and there was a fair amount of that. But let us put that to one side, and let us estimate that reading and where necessary taking a note of each of the current 30,000 submissions will take someone ten minutes (as some submissions were 400 pages long, this is perhaps a ridiculously conservative estimate). That equates to 300,000 minutes, or 5000 hours, or 208 days of one person’s time (assuming they never slept or took a break: if we imagine that they spent eight hours reading every day, it would be 625 days).

I don’t know what sort of administrative support Lord Burns and his fellow Commission members have been given, but, really, to do their job properly one would expect them to read the submissions themselves. There are five of them, so even assuming they shared the reading between them, we might expect they would between them take 125 days (without a break, and with little or no time to undertake their other jobs and responsibilities) to digest the written evidence.

Lord Burns has sensibly conceded that the Commission will not be able to report by the end of the year, and he has announced that two oral evidence sessions will take place in January next year (although who will participate has not been announced, nor whether the sessions will be broadcast, nor even whether they will take place in public).

What is clear though is that someone or ones has a heck of a job ahead of them. I doubt that the Commission, as an advisory non-departmental public body, would be amenable to judicial review, so it is probably not strictly bound by public law duties to take all relevant evidence into account when arriving at its decisions and recommendations, but, nonetheless, a failure so to do would open it up to great, and justified, criticism.

And, one final point, as Ian Clark noticed when submitting his evidence, the web form was predicated on the assumption that those making submissions would only be from an “organisation”. Surely the Commission didn’t assume that the only people with views on the matter were those who received FOI requests? Surely they didn’t forget that, ultimately, FOIA is for the public?

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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The first time Parliament heard the term “Freedom of Information”

…if there is one matter on which I feel more strongly than another it is that in a democratic community the foundation of good government lies in freedom of information, freedom of thought, and freedom of speech: You can not have a country, which is governed by its people, wisely and well governed, unless those people are permitted access to accurate information, and are permitted the free exchange of their views and their opinions: That is essential to good government: It is quite true that if you grant that freedom there will be abuses: It is quite true that foolish people advocate foolish views: That is one of the many unfortunate corollaries

Although the past is a foreign country, some of its citizens can seem familiar: the quotation above is from Liberal politician Sir Richard Durning Holt, and was made in a parliamentary debate seven months short of a hundred years ago. It contains the first recorded parliamentary use of the term “freedom of information”. It was said as part of a debate about conscientious objectors to the “Great War” (Holt was drawing attention to what he saw as the unfair and counter-productive prosecutions of objectors). He may not have meant “freedom of information” in quite the way we mean it now, but his words resonate, and – at a time when our own Freedom of Information Act 2000 is under threat – remain, as a matter of principle, remarkably relevant.

I found the quotation using Glasgow University’s extraordinary corpus of “nearly every speech given in the British Parliament from 1803-2005”. I commend it to you, and, a century on, commend Sir Richard’s words to Jack Straw and his fellow members on the Independent Commission on Freedom of Information.

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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ICO discloses names of Operation Motorman journalists

In August this year the Upper Tribunal dismissed an appeal by the Information Commissioner’s Office (ICO) of a prior ruling that he must disclose the names of certain journalists who appeared on a list 305 names seized by the ICO during a raid in 2003 on the home of private investigator Steve Whittamore. The raid was part of “Operation Motorman”, an investigation which forms part of the background to the various civil and criminal proceedings generated by the phone-hacking scandals, and to the establishment of the Leveson Inquiry.

The names which have been ordered to be disclosed have now been provided by the ICO to the requester, the clearly indefatigable Chris Colenso-Dunne. Chris has kindly given the list to me, and I make it available in the attachment below. One name stands out in particular: Rebekah Wade (as she then was), now Brooks, who has always denied knowledge of the phone-hacking which took place while she was editor of the now defunct News of the World (and who was, of course, acquitted in 2014 of conspiring to hack phones when editor of that paper and of making corrupt payments to public officials when editor of The Sun, as well as of all other charges).

It is important to be aware, as the Upper Tribunal said, that presence on the list means nothing more than that the journalists in question

had commissioned Mr Whittamore to obtain information… The information did not carry with it any assertion as to the actual or alleged commission of any crime by those journalists [para 38]

No doubt the list will generate further comment, though.

ICO Motorman List

[this post was edited to remove a paragraph where I’d mistakenly taken the list to mean that Wade was working for “Femail” at the time]

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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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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