informationrightsandwrongs

Transport yourself back to January 2020 (what a different world that was). You are a journalist, or maybe just an informed citizen, and you want to know what preparations the government had made in the event Boris Johnson had lost his seat in the general election a month previously.

You make a request for this information to the Cabinet Office under the Freedom of Information Act 2000 (FOIA). You know that you should get a response within twenty working days (section 10 of FOIA says so). And you know that there is a regulator (the Information Commissioner, or “ICO”) who oversees compliance with FOIA.

What you probably don’t expect is that, 25 months on, you not only haven’t received the information you requested but you have only just had a ruling from the ICO that you are not entitled to it.

That’s how long it has taken this request to make its way through what is an unacceptably slow process. The requester made the request to the Cabinet Office on 7 January 2020. By 12 March 2020 they had had no response whatsoever, so complained to ICO. Three months later, on 16 June 2020, ICO formally told the Cabinet Office to pull its finger out. On 3 August it did, and refused to disclose the requested information, citing one of the statutory exemptions. On 22 September 2020 the requester again complained to ICO, who then took sixteen months to decide that the Cabinet Office was entitled to rely on the exemption claimed.

What follows is far from a fully thought-out legal argument, but bear with me for the purposes of polemic: Article 10 of European Convention on Human Rights says that everyone has the qualified right to receive information (as well as to impart information) without interference by public authority. Previous attempts to argue that Article 10 confers something above and beyond FOIA in respect of accessing information from public authorities have foundered, on the grounds that, in context, Article 10 doesn’t add anything to the rights in FOIA (see Kennedy, para 92 and elsewhere). But it does seem to me that if the regulatory scheme itself interposes a delay which might be, as here, 1600% longer than the original statutory timescale given to the original recipient for responding to the request, the basis might arise for mounting an argument that the scheme fails to avoid public authority interference in the Article 10 fundamental right.

Maybe I’m overreaching. Let’s just say this: it cannot be right that it takes over two years to get a response and a regulatory decision on a FOIA request. Let’s hope new Commissioner John Edwards sorts this out.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.