Tag Archives: FOI

Upper Tribunal on enforcement of First-tier Tribunal FOIA decisions

What happens if a public authority does not comply with steps specified in a decision notice issued by the Information Commissioner under the Freedom of Information Act 2000 (FOIA)? Assuming that no appeal is brought by the authority, then section 54 of FOIA provides that, in such circumstances, the Commissioner may (not “must” – this is a power, not a duty) certify in writing to the High Court (or, in Scotland, the Court of Session) that the authority has failed to comply with that notice, and the court may (after inquiring into the matter) deal with the authority as if it had committed a contempt of court.

This much is, relatively, straightforward, but what happens if the Commissioner’s decision notice doesn’t specify steps the public authority should take – for instance (and most normally) where the Commissioner doesn’t uphold a complaint by the requester, and the latter appeals to the First-tier Tribunal (FTT), with the FTT subsequently upholding the appeal,  substituting its own decision for that of the Commissioner, and itself specifying steps to be taken by the public authority? In those circumstances, who is responsible for (or at least has the power of) enforcement of those steps? Is it the Commissioner, or the FTT itself?

This is not a hypothetical question – the FTT will frequently disagree with the Commissioner – sometimes, of course upholding an appeal by the public authority, but at other times upholding a requester’s appeal, and ordering the public authority to take steps which were not originally specified by the Commissioner. 

The answer, says the Upper Tribunal, in Information Commissioner v Moss and the Royal Borough of Kingston upon Thames [2020] UKUT 174 (AAC), is that it is for the FTT to enforce, on the (slightly circular sounding) grounds that it has the power to do so, and the Commissioner doesn’t.

The FTT’s power to enforce emanates from paragraph 61(4) of FOIA, which provides that where a person fails to do something, in relation to proceedings before the FTT on an appeal, and if those proceedings were (instead) proceedings before a court which had a power to commit for contempt, and the failure would constitute contempt (such as failing to comply with steps in a substituted decision) the FTT may certify the offence to the Upper Tribunal (in Moss, which related to matters before section 61 was amended by the Data Protection Act 2018, the power was to certify to the High Court, but nothing turns on this).

By contrast, for the Commissioner to control the enforcement of the FTT’s decision would be to offend the “fundamental constitutional principle” as enunciated by Lord Neuberger (in R (Evans) v Attorney General [2015] AC 1787 – also a FOIA case, of course) that “a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone” (including, one might add, by the Commissioner, upon exercise of her power (not, remember, her duty) to enforce her own decisions by certifying to the High Court).

In Moss Upper Tribunal Judge Jacobs did not have to decide who is responsible for enforcing a decision notice if the FTT dismisses an appeal against it (i.e. where the Commissioner’s original decision, and any specified and required steps are unchanged). He merely noted that “there is authority that, even if an appeal against a decision is dismissed, it thereafter derives its authority from the tribunal’s decision” (which to me, looks like strong obiter indication that he would have, if required to do so, found that the FTT, and not the Commissioner, would also have the enforcement power in those circumstances).

I can recall (purely anecdotally) occasions where successful appellants to the FTT have bemoaned subsequent failure by public authorities promptly to take the steps specified by the FTT in its decision. The position now seems clear – if those steps need enforcement to make them happen, it is to the FTT that the aggrieved requester should turn.

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.

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Open by Design, Closed by Default?

The Information Commissioner’s Office (ICO) have published their new access to information strategy. Something strikes me about their “Goal #2”:

Goal #2: Providing excellent customer service to individuals making requests to us and lead by example in fulfilling our own statutory functions

The thing strikes me is that, bizarrely, they seem to have misunderstood the goal they’ve set themselves (I nearly referred to it as their “own goal”, which has a bit of a ring about it). They say

We have a varied range of individuals who request an independent review from us and a diverse range of public authorities within our jurisdiction from large central government departments to very small parish councils.

What they don’t say is “we are a public authority, subject to the Freedom of Information Act, and have to comply with its timescales, and promote observance of it by example”.

And, unfortunately, there is much evidence recently of a failure to do this.

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 still breaching law it’s meant to oversee

A month ago I pointed out some rather concerning  failings by the Information Commissioner’s Office (ICO) in its own compliance with Freedom of Information (FOI) law. At the time, the ICO press office told me

We acknowledge that we have fallen short of expectations in these instances but can confirm that the responses to both requests will be issued soon

It’s with some incredulity, therefore, that I see that one of the requests has still not been responded to, despite a further twenty working days having elapsed, and despite the (even greater) incredulity of the requester:

You have missed your own deadline, months after you should have answered this request. Your inability to answer a simple FOI promptly would be a disgrace if you were a local council. The fact that you are the FOI regulator makes your handling of my request a scandal.

I am utterly powerless here – I cannot complain to the regulator about your contempt for FOI because you are supposed to be the organisation I would complain to. Do you have no shame at all? No self respect?

What am I supposed to do now?

The other request I highlighted at the time has had a response, albeit one that was cursory, to say the best, and which is now the subject of a request for internal review.

My own request for the ICO’s compliance figures is now the subject of a formal complaint (with a request for a decision notice under section 50 of the FOI Act), although I am told that there will be, er, a delay in getting to it.

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 breaching the law it’s meant to oversee

This may be complete coincidence, but on the WhatDoTheyKnow website, there are two Freedom of Information (FOI) requests, on similar themes, which requesters have made to the Information Commissioner’s Office (ICO), to which – at the time of writing – the ICO appears simply to be failing to respond, way beyond the statutory timescale of 20 working days.

Both requests are about procurement of external consultants. In the first, the requester asked

Please disclose all current agreements for provision of legal services by outside bodies such as barristers chambers, law firms etc. This should include the rates of pay agreed.

The request was made on the 19th February and more than three months on, has simply had no response (other than an automated acknowledgment).

In the second the (different) requester asked

how many times the Information Commissioner’s Office has engaged consultants, companies or other specialists to deliver services to the ICO without putting the work out to tender or otherwise advertising the opportunity externally

That request was made on the 26th February and, barring some holding responses, which seem to have dried up, it has had no substantive response.

The failure to respond is concerning, and the failure to communicate inexplicable. One wonders where the reluctance comes from.

My own recent experience of making FOI requests to them indicates a less-than-ideal level of compliance with the laws the ICO is meant to regulate. However, when, some time ago, I asked the ICO for compliance figures, they refused to disclose them, saying they would be published soon. Yet approximately six months on they still haven’t done so (which is not in compliance with the best-practice requirements of the section 45 FOI Code of Practice).

I offered the ICO an invitation to comment on this blogpost, and in response a spokesperson said: “We aim to resolve 95% of information requests within the statutory deadline, unless we have sought an extension. We acknowledge that we have fallen short of expectations in these instances but can confirm that the responses to both requests will be issued soon.” No comment was made on the wider point about compliance, and publication of compliance statistics. (I would also make the observation that it’s rather surprising ICO only aims to respond to 95% of requests within the statutory deadline – surely they would (and should) aim to respond to 100% within the timeframe mandated by the law?)

I’ve previously expressed concern about the ICO’s unwillingness to take enforcement action against recalcitrant, if not contemptuous, public authorities for poor FOI compliance. Elizabeth Denham has recently (and unsuccessfully) called for an extension of FOI law, saying

Part of my job is to make sure that the legislation my office regulates fulfils its objectives and remains relevant. When it does not, I will speak out

Will she also speak out about the fact that her office is not itself complying with the legislation it regulates?

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

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ICO – no GDPR fines in the immediate pipeline

FOI request reveals ICO has served no “notices of intent” to serve fines under GDPR. A new piece by me on the Mishcon de Reya website.

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There’s nothing like transparency…

…and this is nothing like transparency

Those of us with long memories will remember that, back in 2007, in those innocent days when no one quite knew what the Freedom of Information Act 2000 (FOIA) really meant, the Information Commissioner’s Office (ICO), disclosed some of its internal advice (“Lines to Take” or “LTTs”) to its own staff about how to respond to questions and enquiries from members of the public about FOIA. My memory (I hope others might confirm) is that ICO resisted this disclosure for some time. Now, the advice documents reside on the “FOIWiki” pages (where they need, in my opinion, a disclaimer to the effect that some of the them at least are old, and perhaps out-of-date).

Since 2007 a number of further FOIA requests have been made for more recent LTTs – for instance, in 2013, I made a request, and had disclosed to me, a number of LTTs on data protection matters.

It is, therefore, with some astonishment, that I note that a recent FOIA request to ICO for up-to-date LTTs – encompassing recent changes to data protection law – has been refused, on the basis that, apparently, disclosure would, or would be likely to, inhibit the free and frank exchange of views for the purposes of  deliberation, and would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs. This is problematic, and concerning, for a number of reasons.

Firstly, the exemptions claimed, which are at section 36 of FOIA, are the statute’s howitzers – they get brought into play when all else fails, and have the effect of flattening everything around them. For this reason, the public authority invoking them must have the “reasonable opinion” of its “qualified person” that disclosure would, or would be likely to, cause the harm claimed. For the ICO, the “qualified person” is the Information Commissioner (Elizabeth Denham) herself. Yet there is no evidence that she has indeed provided this opinion. For that reason, the refusal notice falls – as a matter of law – at the first hurdle.

Secondly, even if Ms Denham had provided her reasonable opinion, the response fails to say why the exemptions are engaged – it merely asserts that they are, in breach of section 17(1)(c) of FOIA.

Thirdly, it posits frankly bizarre public interest points purportedly militating against disclosure, such as that the LTTs “exist as part of the process by which we create guidance, not as guidance by themselves”, and “that ICO  staff should have a safe space to provide colleagues with advice for them to respond to challenges posed to us in a changing data protection landscape”, and – most bizarre of all – “following a disclosure of  such notes in the past, attempts have been made to utilise similar documents to undermine our regulatory procedures” (heaven forfend someone might cite a regulator’s own documents to advance their case).

There has been such an enormous amount of nonsense spoken about the new data protection regime, and I have praised ICO for confronting some of the myths which have been propagated by the ignorant or the venal. There continues to be great uncertainty and ignorance, and disclosing these LTTs could go a long way towards combatting these. In ICO’s defence, it does identify this as a public interest factor militating in favour of disclosure:

disclosure may help improve knowledge regarding the EIR, FOIA or  the new data protection legislation on which the public desire information as evidenced by our increase in calls and enquiry handling

And as far as I’m concerned, that should be the end of the matter. Whether the requester (a certain “Alan Shearer”) chooses to challenge the refusal is another question.

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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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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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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