Labouring under an illusion?
Giving the keynote speech at open Democracy’s ‘Where are we now with the Freedom of Information Act?’ conference hosted at the Institute of Advanced Legal Studies on 08 March 2024, Labour Party Shadow Attorney General Emily Thornberry MP raised concern regarding the performance of public sector organisations in dealing with requests for information under the Freedom of Information Act 2000, noting that this had declined over the past 10 years and particularly sharply over the past 18 months, with public authorities now even engaging in what she described as wilful obstruction. Speaking at an event the previous day, the Information Commissioner’s Office had referred to its own statistics that 15% of people in the UK had made a request under the Freedom of Information Act 2000, and just 55% had reported satisfaction with the result.
Labour Party Shadow Attorney General Emily Thornberry MP at the openDemocracy conference ‘Where are we now with the Freedom of Information Act?’ at the Institute of Advanced Legal Studies, Friday 08 March 2024
The most recent published annual statistics on freedom of information requests, the Freedom of Information statistics: annual 2022 bulletin published on 16 May 2023, revealed that monitored public bodies received 52,740 FOI requests, representing the “largest number of requests during a year since monitoring began in 2005”, and 2,131 requests dealt with under the Environmental Information Regulations (‘EIRs’). The most recent quarterly statistics demonstrate that this is a continuing trend, with the largest number of FOI requests received in a single quarter since records began between July – September 2023. The former report revealed that across all monitored bodies the percentage of requests responded to in time ranged from 62%-100% but that for many public bodies there had been “large changes in timeliness between 2021 and 2022”. Just this week, the Information Commissioner took regulatory action against a number of public authorities, issuing enforcement notices against Sussex Police and South Yorkshire Police, and practice recommendations to the Department for Education, the Foreign, Commonwealth and Development Office and the Financial Ombudsman Service, as a consequence of their unacceptable rates of compliance with the obligation to respond to requests under the Freedom of Information Act 2000 within 20 working days. The decline in openness and transparency is further substantiated by analysis by the Institute for Government, which reveals that the percentage of government departments fully or partially withholding requested information increased from around 40% of requests in 2010 to closer to 60% by 2023. Similarly, in relation to wider principles of openness and transparency, the OECD’s Open, Useful and Re-Useable Data (OURdata) Index, which considers data availability, accessibility and government support for re-use, revealed that the UK has dropped from a high performance country to a middle performance country.
While refraining from making any specific commitments in relation to openness and transparency in the event that the Labour party was to enter government following a general election and refusing to commit the Labour party to revealing details of its meetings with lobbyists, Thornberry nevertheless indicated her desire to improve the culture within public authorities to disclose information to the public, and to stop treating requests as an “annoyance and inconvenience”, potentially echoing the approach proposed by the Institute for Government in its report ‘The benefits of transparency: Why being more open is good for government’.
In the same week that the Information Commissioner John Edwards wrote an open letter to public authorities calling on them to take their statutory obligations of transparency under the Freedom of Information Act 2000 seriously, conference attendees expressed their own thoughts on the measures that the ICO could take to encourage greater transparency and improve compliance.
Handley Gill’s own founder proposed that, with the likely absence of Parliamentary time to reform the Freedom of Information Act 2000, the ICO could take a more aggressive approach to the enforcement of the publication scheme obligations under s.19 FOIA 2000, revoking inadequate publication schemes and requiring public authorities to be more pro-active in publishing information and datasets, particularly those which are demonstrably of public interest having been the subject of previous requests for information.
5RB’s Greg Callus advocated for the ICO to use the powers granted to it under s.54 FOIA to seek certification of non-compliance by the courts which would enable non-compliance to be treated as a contempt, thereby sharpening the teeth of enforcement action.
Those public authorities currently labouring under the illusion that they can continue to get away with improperly delaying and/or refusing requests with impunity, may be in for a rude shock, however, with the representative of the Information Commissioner’s Office indicating that it was considering how it could use the s.54 contempt power.
The ICO also indicated that there would be development on its approach to publication schemes shortly and, while rejecting the prospect of a further wholesale review of FOIA (the Act having already been subject to post-legislative scrutiny and a report by the Independent Commission on Freedom of Information) did acknowledge that a specific review of the operation of the obligations on public authorities to operate publication schemes could be valuable.
Public authorities facing a significant backlog of requests under the Freedom of Information Act 2000 would be well advised to dedicate additional resources to tackling the backlog, and to consider whether expanding their publication schemes could result in reduced demand through individual requests and subsequent complaints and appeals.
Should you require support in making or responding to FOI requests, conducting internal reviews, appealing or responding to appeals to the Information Commissioner and/or appealing to the First-Tier Tribunal (Information Rights), or if you want to review your organisation’s publication scheme, please contact us.