The new Information Commissioner will have a lot on his plate. I’m going to focus very briefly on what is, objectively, a very small matter but which, to me, illustrates much about priorities within the ICO.
On 29 July I happened to notice an Information Tribunal decision which I thought was slightly odd, in that apparently both the Tribunal, and the Commissioner beforehand, had dealt with it under the Freedom of Information Act 2000 rather than the Environmental Information Regulations 2004, despite the subject matter (a tree inspection report) appearing to fall squarely under the latter’s ambit.
However, the decision notice appealed (referred to as FS5081345 in the Tribunal judgment), does not appear on the ICO’s searchable online database (in fact, no decisions relating to the public authority – the mighty Great Wyrley Parish Council – are listed). It’s unusual but certainly not unheard of for decision notices not to get uploaded (either by overlook, or – occasionally – for other, legal reasons) but in the past when I’ve asked for one of these, informally, it’s been provided by return.
So I used the ICO’s online Chat function to ask for a copy of the decision notice. However, I was told I had to submit a request in writing (of course I’d already done so – the Chat function is in writing, after all, but let’s not quibble). I said I was concerned that what was a simple request would get sucked up into the ICO’s own FOI processes, but the person on the Chat thought I would get a response within a couple of days.
Those who’ve stayed this far into the blogpost will be unsurprised to hear what happened next – my simple request got sucked into the ICO’s own FOI processes, and more than seven weeks on (more than three weeks beyond the statutory timescale for responding) I have still had no response, and no indication of why not, other than the pressure the FOI team is under.
And that last point is key: if the ICO’s own FOI caseworkers are under such pressure that they cannot deal with a very simple request within the legal timescale, nor update me in any meaningful way as to why, something has surely gone wrong.
At a recent NADPO webinar Dr Neil Bhatia spoke about his own difficulties with getting information out of the ICO through FOI. He (and I) were challenged by one of the other speakers on why we didn’t more regularly take formal action to force the issue. It was a fair point, and prompted me yesterday to ask the ICO for a formal decision under section 50 of the FOI Act (which means the ICO will have to issue an FOI decision notice on whether the ICO handled an FOI request for an FOI request in accordance with the law – and that sentence itself illustrates the ridiculousness of the situation).
This isn’t the only FOI request I have that the ICO is late responding to. I have one going back to May this year and another to June (albeit on rather more complex subjects). And I know that I and Dr Bhatia are not alone.
All the fine talk from the current Commissioner about forging international data protection accords, and encouraging “data driven innovation” can’t prevent a perception that her office seems increasingly to have left FOI regulation (and in some cases its own FOI compliance) behind. The right to access information is (part of) a fundamental right (just as is the right to data protection). If the ICO doesn’t want the role, is it time for a separate FOI Commissioner?
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.