Tag Archives: FOI

September 9, 2023 · 9:56 am

ICO breaching section 45 FOI code which it has a duty to promote

Under section 45 of the Freedom of Information Act 2000 (FOIA), the Minister for the Cabinet Office is required to issue a Code of Practice providing guidance to public authorities as to the practice which it would, in his opinion, be desirable for them to follow. A Code of Good Practice, if you will. The Information Commissioner’s Office (ICO) says, about the most recent version of the section 45 Code, that it

should be used as a handbook which sets out best practice to help you with the day to day handling of requests. Adhering to the Code will result in positive benefits for your authority, and in practical terms, offer good customer service.

And under section 47(1)(b) of FOIA the ICO has a duty to perform his functions so as to promote the observance of the Code.

Paragraph 8.5 of the Code says that

Public authorities with over 100 Full Time Equivalent (FTE) employees should, as a matter of best practice, publish details of their performance on handling requests for information under [FOIA…and] should do so on a quarterly basis…

However, the ICO themselves do not do, indeed never have done, this.

I recently made a FOIA request to the ICO, in which I queried the absence of they published statistics under paragraph 8.5 of the Code, and asked for disclosure of the last two years’ statistics. The response revealed statistics that are not particularly interesting, other than that they show that the ICO has made commendable improvements in its own compliance, following the dip which coincided with the pandemic. But all that was said about the proactive publication point was

We are not presently publishing our quarterly stats

No explanation as to why, and the fact that it appears expressly contrary to the ICO’s duty under section 47 to promote observance of the Code.

The ICO has, in recent months, indicated a willingness to get a bit tougher on public authorities don’t comply with FOIA, but if it does not itself comply, the effect of such tougher enforcement is greatly weakened.

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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Filed under Freedom of Information, Information Commissioner

Tagged as FOI, ICO

July 30, 2023 · 11:05 am

Has the Information Commissioner’s Office lost its FOI purposes?

When Parliament passed the Data Protection Act 1984 it created a role of a regulator for that new data protection law. Section 3(1)(a) said that

For the purposes of this Act there shall be…an officer known as the Data Protection Registrar

The office remained in this form until the passing of the Data Protection Act 1998, section 6(1) of which provided that

The office originally established by section 3(1)(a) of the Data Protection Act 1984 as the office of Data Protection Registrar shall continue to exist for the purposes of this Act but shall be known as the office of Data Protection Commissioner

The advent of the Freedom of Information Act 2000 necessitated a change, so as to create a role of regulator for that Act. Paragraph 13(2) of Schedule 2 to the Freedom of Information Act 2000 amended section 6(1) of the Data Protection Act 1998 so it read

For the purposes of this Act and of the Freedom of Information Act 2000 there shall be an officer known as the Information Commissioner

So, at this point, and indeed, until 25 May 2018, there was an Information Commissioner “for the purposes of” the Data Protection Act 1998, and “for the purposes of” the Freedom of Information Act 2000.

25 May 2018 marked, of course the date from which (by effect of its Article 99) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, or “GDPR“, applied.

Also on 25 May 2018, by effect of the Data Protection Act 2018 (Commencement No. 1 and Transitional and Saving Provisions) Regulations 2018, section 114 of the Data Protection Act 2018 commenced. This provided (and provides)

There is to continue to be an Information Commissioner.

However, paragraph 44 of schedule 19 to the Data Protection Act 2018 (commenced also by effect of the Data Protection Act 2018 (Commencement No. 1 and Transitional and Saving Provisions) Regulations 2018) repealed the “FOIA purpose” provisions of section 6(1) of the Data Protection Act 1998 (which, to recall, said that “for the purposes of…the Freedom of Information Act 2000 there shall be an officer known as the Information Commissioner“). At the same time, paragraph 59 of schedule 19 to the Data Protection Act 2018 repealed section 18(1) (which had provided that “The Data Protection Commissioner shall be known instead as the Information Commissioner“).

So, the Information Commissioner is no longer described, in statute, as an officer which shall be for the purposes of the Freedom of Information Act 2000.

Probably nothing turns on this. Elsewhere in the Freedom of Information Act 2000 it is clear that the Information Commissioner has various functions, powers and duties, which are not removed by the repeal (and subsequent absence of) the “FOIA purpose” provisions. However, the repeal (and absence) do raise some interesting questions. If Parliament thought it right previously to say that, for the purposes of the Freedom of Information Act 2000 there should have been an Information Commissioner, why does it now think it right not to? No such questions arise when it comes to the data protection laws, because section 114 and schedule 12 of the Data Protection Act 2018, and Articles 57 and 58 of the UK GDPR, clearly define the purposes (for those laws) of the Information Commissioner.

Maybe all of this rather painful crashing through the thickets of the information rights laws is just an excuse for me to build up to a punchline of “what’s the purpose of the Information Commissioner?” But I don’t think that is solely what I’m getting at: the implied uncoupling of the office from its purposes seems odd, and something that could easily have been avoided (or could easily be remedied). If I’m wrong, or am missing something – and I very much invite comment and correction – then I’ll happily withdraw/update this post.

Please note that links to statutes here on the legislation.gov.uk website are generally to versions as they were originally enacted.

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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Filed under Data Protection, Data Protection Act 2018, Freedom of Information, GDPR, Information Commissioner

Tagged as DPA, FOI, GDPR, ICO, UK GDPR

May 10, 2023 · 8:55 pm

ICO “does not use AI” – really?

There’s an interesting Freedom of Information (FOI) response by the Information Commissioner’s Office (ICO) on the website WhatDoTheyKnow. In response to the question

have you examined the use of AI to help you in doing your work as an organisation?

their reply includes the statement that

For information, the ICO does not use any artificial intelligence (“AI”) technology.

However, if one uses most of the standard definitions of AI (such as the one from the government’s National AI Strategy: “machines that perform tasks normally requiring human intelligence, especially when the machines learn from data how to do those tasks”) one might find that hard to believe. What about spam filters on the ICO email network? Or the fact they recommend Google Maps for anyone needing directions to their offices? Or their corporate use of social media? All of those technologies use, or constitute, AI.

There is a wider point here: the task of regulating AI, or even of comprehending how it uses personal data, will fall increasingly on some key regulators in coming years (including the ICO). It is going to be crucial that there is understanding within those organisations of these issues, and if they don’t comprehend now how, within their own walls, the technology operates, they will be starting off on the back foot.

(One should also add that, if the ICO has missed some of its own more obvious uses of AI, then it has probably also failed to respond to the FOI request in accordance with the law.)

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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Filed under AI, Freedom of Information, Information Commissioner

Tagged as AI, FOI, ICO

February 28, 2023 · 8:29 pm

FOI embarrassment

At a recent awards event, recognising high-performing Freedom of Information officers and teams (fantastic idea by the organisers/sponsors, by the way*) I gave a brief talk where I stressed that it was important to recognise how much FOI has achieved in its 23 (or 18**) years, and to remember that every day thousands of disclosures are made by thousands of public authorities. It’s very easy to snipe at bad practice, and I often do, but if we don’t acknowledge the benefits, the real opponents of FOI might start arguing for its repeal.

So. Celebrate success. Accentuate the positive. Eliminate the negative.

However.

Then you see a decision notice from the Information Commissioner (ICO), in which a large London council had refused to disclose, under FOI, information on how many enquiries (MEQs) each of its councillors*** had submitted to the council on behalf of constituents. The reason for refusal was that this was the personal data of the councillors (well, yes) and that disclosure would infringe those councillors’ rights under the data protection law (hell, no).

This isn’t time for legal analysis. It really is as extraordinary as it sounds.

Thankfully, the ICO had no truck with it (and the notice does have legal analysis).

Frankly, though, the council should be ashamed.

______________________

*I have no personal or professional interest

**The Act commenced in 2000, but the main provisions didn’t commence until 2005

***At the end of the notice there is a big hint as to the role of the person who made the request – see if you can guess

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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Filed under access to information, Data Protection, Freedom of Information, Information Commissioner, local government

Tagged as data protection, FOI, ICO

December 18, 2022 · 10:48 am

ICO investigated potential FOI criminal offences by government departments

Under section 77 of the Freedom of Information Act 2000 (FOIA) a person commits a criminal offence if – after someone has made a request for information to a public authority, and would have been entitled to disclosure of that information – he or she

alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to the communication of which the applicant would have been entitled

This is the only section of FOIA which carries a criminal penalty. It is very rarely invoked: since FOIA commenced in January 2005, there has been just one successful prosecution brought by the Information Commissioner’s Office (ICO) (and, as far as I know, only one other, unsuccessful, prosecution).

One reason for the lack of cases is that the ICO can only bring a prosecution within six months of the offence occurring. This has been identified for many years as an issue which should be addressed (but successive governments have declined to do so).

Nonetheless, a recent FOIA disclosure by the ICO reveals that in the last few years potential section 77 offences by government departments have been investigated. The request, made via the public WhatDoTheyKnow platform, was for information on “all Section 77 investigations carried out regardless of outcome for all Government departments”. In response, the ICO disclosed that

we have opened the following cases with regard to allegations of s77 allegations against Government Departments:
PCB/0013/2018 – MoJ IC/506/2020 – DWP IC/0549/2020 – Cabinet Office INV/0950/2021 – Cabinet Office.

This appears to suggest the existence of four separate investigations. In response to a request for further comment the ICO press office stated to me that none of the cases was still open, but declined to say any more. This seems to confirm that no proceedings were brought as a result of the investigations, but it is not possible to speculate on the reasons why. Nor are details available as to the circumstances under which the investigations were made.

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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Filed under access to information, Cabinet Office, DWP, Freedom of Information, Information Commissioner, Ministry of Justice, section 77

Tagged as FOI, ICO

November 26, 2022 · 10:59 am

Does DHSC have a compliant ROPA?

Article 30(4) of the UK GDPR requires a controller to make its records of processing activities (ROPA) available to the Information Commissioner (ICO) upon request.

ROPAs are required for most large controllers, and should include at least

The name and contact details of the organisation (and where applicable the data protection officer).
The purposes of processing.
A description of the categories of individuals and categories of personal data.
The categories of recipients of personal data.
Details of transfers to third countries including documenting the transfer mechanism safeguards in place.
Retention schedules.
A description of the controller’s technical and organisational security measures.

Ordinarily, in my experience, controllers will maintain a ROPA in one document, or one set of linked documents. This not only enables a controller to comply with Article 30(4), but reflects the fact that a ROPA is not just a compliance obligation, but contributes to and assists the controller in its information governance functions.

This all makes the position of the Department of Health and Social Care (DHSC) rather odd. Because, in response to a Freedom of Information Act (FOIA) request for disclosure of its ROPA, it stated that the request was “vexatious” on the grounds of the time and costs it would have to incur to respond. This was because, as the DHSC subsequently told the ICO when the latter was asked to issue a FOIA decision notice

We hold a collection of documentation across different formats which, when put together, fulfils our obligation under Article 30 of the GDPR to record and document all of our personal data processing activities…[and]…to locate, retrieve and extract all of this documentation would involve a manual trawl of the whole organisation and each document would then need to be reviewed to check for content such as personal data, commercially sensitive data and any other information that would otherwise not be appropriate to place into the public domain

For this reason, the ICO accepted that compliance with the request would be “grossly oppressive” and this, taken with other factors, meant that the FOIA request was indeed vexatious.

The ICO is tasked with regulating both FOIA and data protection law. The decision notice here notes this, and says

the Commissioner feels duty bound to note that, if the DHSC cannot comply with the request because it would impose a grossly oppressive burden to do so, it is unlikely that the DHSC would be able to provide its ROPA to the Commissioner, which is a requirement under Article 30 of the UK GDPR, without that same burden

There’s a big hint here to DHSC that it should adopt a different approach to its ROPA for the future.

But the decision notice does contain some rather strange wording. In the context of the words quoted just above, the ICO says

This decision notice looks at the DHSC’s compliance with FOIA only and the Commissioner cannot order the DHSC to take any action under any other legislation.

It is true that, under his FOIA powers, the ICO cannot order the DHSC to comply with the UK GDPR, but, quite evidently, under his UK GDPR powers, he certainly can: Article 58(2)(d) specifically empowers him to

order the controller…to bring processing operations into compliance with the provisions of this Regulation, where appropriate, in a specified manner and within a specified period

I am not aware of anything in FOIA, or data protection law (or wider regulatory and public law) that prevents the ICO from taking enforcement action under UK GDPR as a result of findings he has made under FOIA. Indeed, it would be rather strange if anything did prevent him from doing so.

So it does seem that the ICO could order DHSC to get its ROPA in order. Maybe the big hint in the FOIA decision notice will have the desired effect. But regulation by means of big hints is perhaps not entirely in compliance with the requirement on the ICO, deriving from the Regulators’ Code, to ensure that its approach to its regulatory activities is transparent.

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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Filed under access to information, DHSC, Freedom of Information, Information Commissioner, records management, ROPA, Uncategorized

Tagged as data protection, FOI, ICO, UK GDPR

September 23, 2022 · 8:00 am

Was the Queen’s Funeral day a FOIA “working day”?

Under the Freedom of Information Act 2000 a public authority must respond to a request for information within 20 working days. For obvious reasons “working day” does not include a bank holiday. Does this mean that for FOIA requests made before Monday 19 September 2022 (the bank holiday in recognition of the late Queen’s funeral) public authorities and requesters must add an extra day when calculating when a response to the request is due? The jury is out.

Section 10(6) of FOIA defines a “working day” as

any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom

And section 1 of the Banking and Financial Dealings Act 1971 says

the days specified in Schedule 1 to this Act shall be bank holidays in England and Wales, in Scotland and in Northern Ireland as indicated in the Schedule

The Schedule to that 1971 Act therefore provides a number of dates which are to be considered as bank holidays

All straightforward then? Not quite. Sections 1(2) and 1(3) of the 1971 Act go on to add that the Sovereign can effectively remove or add a bank holiday “by proclamation”, and this was the means by which 19 September was made a bank holiday.

(In passing it’s interesting to note that those sections of the 1971 Act refer to proclamations by “Her Majesty”. Clearly “Her Majesty” could not have made the proclamation. However, by section 10 of the Interpretation Act 1978 “In any Act a reference to the Sovereign reigning at the time of the passing of the Act is to be construed, unless the contrary intention appears, as a reference to the Sovereign for the time being”.)

But the question of whether the 19 September should be classed as a working day or not for the purposes of FOIA requests which were already running, might turn on the extent to which the general presumption at common law applies, whereby legislation is not intended to have retrospective effect. See, in this regard, Lord Kerr in Walker v Innospec Limited and others [2017] UKSC 47:

The general rule, applicable in most modern legal systems, is that legislative changes apply prospectively…The logic behind this principle is explained in Bennion on Statutory Interpretation, 6th ed (2013), Comment on Code section 97:

‘If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow’s backward adjustment of it.’

An exception to the general rule will only apply where a contrary intention appears.

It might be said, though, that the proclamation of a bank holiday, pursuant to a statutory power, is not in itself a legislative change to which the general rule against retrospectivity applies. I’m not sure there’s a clear answer either way.

Whether public authorities should have one extra day for a FOIA request is clearly not a constitutional issue which should trouble the great minds of our generation (although I know plenty of FOI teams and officers who are judged on their performance against indicators such as response times). Nonetheless, I asked the ICO this week what their view was, and the answer that came back was that they didn’t have a settled position on the issue, but that, in the event of a subsequent complaint about whether a deadline had been met, they would take all the circumstances into account (which I take to mean that they are unlikely to criticise a public authority whichever way it decided to approach the question).

Shortly after initially uploading this post, I was contacted by someone who pointed out that the New Zealand parliament has specifically legislated to give retrospective “non-working-day” effect to its own extraordinary bank holiday. This would seem to reinforce the point about the presumption against retrospectivity unless there’s an express intention to the contrary.

So it probably doesn’t matter, and probably no one really cares. But I enjoyed thinking about it.

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Filed under access to information, Freedom of Information, Information Commissioner

Tagged as FOI, ICO

July 25, 2022 · 1:18 pm

A day to remember

I’ve written about this oddity before, but thought it was worth saying it again, because it can catch the *cough cough* best of us out. The oddity being that a bank holiday falling in any part of the United Kingdom counts as a non-working-day for the purposes of FOIA. So, as January 2nd (or the nearest substitute day) is a bank holiday in Scotland, it is not a working day for the purposes of calculating the maximum timescale for compliance with a request made under FOIA, despite the fact that Scotland has its own Freedom of Information (Scotland) Act 2002.

What “bank holiday” means, according to section 10(6) of FOIA, is

any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom

And section 1 of the Banking and Financial Dealings Act 1971 says

the days specified in Schedule 1 to this Act shall be bank holidays in England and Wales, in Scotland and in Northern Ireland as indicated in the Schedule

The Schedule therefore provides a number of dates which are to be considered as bank holidays

All straightforward then? Not quite. Sections 1(2) and 1(3) of The Banking and Financial Dealings Act 1971 also provide that the Queen can effectively remove or add a bank holiday “by proclamation”.

As the London Gazette records, on 23 July 2021 a proclamation was made by Her Majesty, providing that

We in pursuance of section 1(3) of the Banking and Financial Dealings Act 1971, do hereby appoint …Tuesday the twelfth day of July in the year 2022 to be a bank holiday in Northern Ireland

So those calculating when FOI responses to requests made in recent weeks are due, will need to factor in this extra day.

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Filed under access to information, Freedom of Information

Tagged as FOI

Tag Archives: FOI

ICO breaching section 45 FOI code which it has a duty to promote

ICO “does not use AI” – really?

FOI embarrassment

ICO investigated potential FOI criminal offences by government departments

Was the Queen’s Funeral day a FOIA “working day”?

A day to remember

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