Select Committee on Constitutional Affairs Seventh Report

3  Requesters' experiences

Requesters' rights under FOI

15. The FOI Act requires public authorities to provide the information requested by an applicant within 20 working days. If the authority complies with the Act, and the applicant is satisfied with the response, then the matter can often be resolved within the 20 day limit. If the applicant is dissatisfied, the initial request is only the first step in what can become a long drawn-out process. For example, in cases where the authority refuses to provide the information requested and the applicant believes that it has wrongly applied an exemption, the steps in the process would be as follows:

i.  The applicant makes a written request for information. The authority should acknowledge the request and then normally either supply the information or refuse and state which exemption applies within 20 working days;

ii.  Some exemptions are subject to a public interest test. When an authority has applied one or more of these exemptions, it must communicate that decision to the applicant within 20 days, but may then take as much extra time 'as is reasonable' to consider whether, even though the information is covered by that exemption, it is in the public interest that it should be released;

iii.  If the applicant is dissatisfied with the authority's response he can ask the authority to conduct an internal review. There are no statutory time limits for internal reviews; however the applicant may have difficulty proceeding to the next stage until he can show that he has exhausted the authority's internal review process;

iv.  Once the applicant has received a letter from the authority with the decision from its internal review, he may then (if still dissatisfied) make a complaint to the Information Commissioner. There are no statutory time limits for the Commissioner's investigation; and,

v.  The applicant may appeal to the Information Tribunal against the Commissioner's decision and ultimately on a point of law to the appropriate court.

There is evidence that delays are occurring at all stages of the process and there have to date been no penalties for such delays.

Delays

16. The most commonly cited problem for requesters was delays in responding to requests. Lord Lester of Herne Hill described the response from the FCO to his request for information as 'wholly unsatisfactory'.[16] He explained that 'the FCO stated that they would reply to my request of 15^th February 2005 within 20 days. It has taken them over a year to do so.'[17] Friends of the Earth had experienced similar problems:

Of the 108 requests made by Friends of the Earth in 2005, 81 failed to respond within 20 working days. Of those 81, 27 failed to provide any explanation at all for the delay…Some authorities took several months to respond to the request…This level of delay in receiving information significantly reduces the usefulness of the new laws. Often the relevance of the information to the requester diminishes with time, so that six months after the request the point of having the information no longer exists.[18]

17. Published data show that there are many cases where the 20 day statutory response time is not being complied with. For example, three decision notices issued by the Commissioner on 20 October 2005 related to separate instances where the Home Office had exceeded the 20 day deadline by several months and the DCA statistics show that late responses were provided to around 10% of all requests made to central government.

Public interest test extensions

18. Although the FOI Act requires public authorities to provide the information requested by the applicant within 20 working days, some exemptions are subject to a public interest test and authorities may legitimately take such extra time 'as is reasonable' to consider and decide whether the public interest in maintaining the exemption outweighs the public interest in disclosing it.

19. In their evidence to us, requesters described cases where decisions had been delayed several times, sometimes for a period of months, in order to consider the public interest. Lord Lester's submission described the handling of a request for information made to the FCO where an extension of nearly 3 months was made to consider the public interest.[19] The BBC said that it had experienced 'cases where public authorities have taken months to assess the public interest test (repeatedly extending their own self-imposed deadlines).'[20]

20. The DCA's monitoring statistics show that the 'permitted extensions' were used by central government departments for around 10% of requests made in 2005 but there is no information about the length of additional time taken.[21] Provided that the authority has advised the applicant that it requires extra time, this data is included in the statistics for requests dealt with 'in time'. The delay could just be a matter of days but the evidence from requesters shows that it is sometimes many months.

21. The Information Commissioner told us that:

I am increasingly sceptical they need as much time as they are taking…I hope I am sending out a very clear signal that where public authorities are taking an excessive time to consider the public interest considerations that will not be acceptable. We are working towards giving more explicit guidance. I cannot create law on this front, but…two months ought to be quite long enough for anybody to go through a weighing of the public interest considerations.[22]

We return to this issue in Chapter 6 of this Report.

Lengthy internal reviews

22. Requesters such as the BBC also encountered delays when some authorities took months to conduct internal reviews.[23] One of the effects of lengthy internal reviews is that applicants may be prevented from starting the complaints process with the ICO. Professor Alasdair Roberts, Associate Professor of Public Administration at Syracuse University, gave us examples of cases where the Information Commissioner had refused to start investigations into the refusal of his information requests until government departments had completed their internal reviews, even though the reviews had already been very delayed:

A particularly troubling issue is the ICO's treatment of delays on internal reviews. In two cases I have been told by the ICO that they are unable to take action on a complaint regarding a request to DCA until it has completed its internal review, even though the DCA has substantially exceeded its own deadline for completion of review. In the first case, DCA set its own deadline of July 18 2005 for completion of an internal review. It then extended this deadline to the week of August 22 2005. On August 31 the Information Commissioner refused to take action on a complaint of mute refusal, stating that ICO 'is unable to investigate a complaint whilst the review is ongoing'. DCA eventually completed its internal review on September 7 2005. The review took 58 business days.[24]

23. Section 50 of the Act states that on receiving a complaint 'the Commissioner shall make a decision unless it appears to him that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45'. The Information Commissioner told us that in future he intended to exercise greater control over unacceptably lengthy reviews:

Where we feel that we are being spun a line by a public authority, we think that they are not actually pursuing the internal review as fast as they should be, then we will do our best to put more pressure upon the public authority to speed up their act…to the extent possible, we will be using our formal powers to improve performance at a more general level.[25]

24. Indefinitely delayed internal reviews conflict with the concept of the statutory response time in the Act. We note that the Commissioner has the discretion to begin his investigations when he judges that the complaints process has effectively been exhausted. We welcome the commitment he has now made to put pressure on public authorities to complete internal reviews more quickly.

Complaints resolution

25. Some requesters who gave evidence felt that the complaints procedure had been inadequate. They described cases where they had waited months before the ICO began investigating their complaint. The BBC stated:

As for the Information Commissioner's Office, BBC journalists have taken several complaints to the Commissioner. Our experience has been, in common with other complainants, that we have had to wait a considerable period of time and often several months before work has started on investigating our complaints. To give one typical example (not the worst), a complaint made to the ICO by one BBC journalist in September 2005 was not acted upon (beyond sending a standard acknowledgement) until over four months later in January 2006, when the investigation into it was started. In another case a BBC journalist complained to the ICO about the Department of Health holding back some information as intended for future publication, although they could give no indication of when publication was planned. It took the ICO five months to reject the complaint - which was just about the same time that the Department took to get ready to publish the information anyway.[26]

Professor Alasdair Roberts told us that:

In the most serious delay which I have encountered, a complaint regarding my request to the Department of Trade and Industry made in April 2005 has been held by the ICO for 187 business days…without action. Another complaint, relating to a request to the Department of Constitutional Affairs (DCA) has been with ICO for over 110 business days.[27]

26. Maurice Frankel pointed out some of the potential consequences of these delays:

There is a significant backlog of unresolved complaints in the Commissioner's office, which amounted to some 1300 cases at the end of 2005…the existence of a large backlog at such an early stage in the life of the FOI Act creates a particular problem, since so far there are relatively few decision notices dealing with substantive issues of interpretation under the Act.[28]

We return to the issue of the backlog of cases in the ICO in Chapter 5 of this Report.

Application of exemptions

27. Requesters gave us examples of cases where they considered that public authorities had interpreted the exemptions too widely. Friends of the Earth made the general point that 'Public authorities interpreted the exemptions both in the EIR and in (the FOI Act) in an excessively broad manner.'[29] Making decisions about the proper application of exemptions is the responsibility of the Information Commissioner and it is for him to decide whether the use of exemptions was excessively broad in those particular cases. However the cases did illustrate to us the importance to both requesters and public authorities of clearly reasoned decision notices in order to inform future best practice.

28. Maurice Frankel told us that:

One of the key issues under the Act is whether disclosure is likely to affect the formulation of government policy or the frank discussion of policy issues. This issue was first addressed in a decision of the Scottish Information Commissioner in July 2005. The first equivalent decision involving a UK government department was only issued in January 2006…Once such decisions are in place requesters will also be better placed to recognise and successfully challenge unreasonable refusals or to accept that information has been legitimately withheld. This may tend to reduce the number of unnecessary appeals that are made.[30]

29. Requesters and public authorities would both welcome more direction from the Information Commissioner about the scope of the exemptions, both in the form of clearly reasoned decision notices and in guidance material which is relevant and up-to-date. Steve Wood, Senior Lecturer in Information Management, Liverpool John Moores University, said that 'it is currently unclear what procedures are in place (at the ICO) to periodically review guidance' and gave examples of instances where guidance material had not been yet been amended so as to reflect Tribunal decisions.[31]

Failure to recognise requests for environmental information

30. Some requesters had experienced difficulties because authorities did not properly identify requests for environmental information and applied the FOI Act rather than the EIR. Which? gave the example that 'there appears to be confusion among councils as to whether they should treat requests for council hygiene inspections under the EIR or the FOIA.'[32] Whilst in many respects the two regimes are similar, there are key differences which public authorities must consider when refusing disclosure. The EIRs have stronger rights of access, including narrower exemptions, stricter time limits and are informed by European case law.[33] At present there are separate codes of practice for EIRs and FOI and so for an authority which has started to deal with a request under FOI, it is not necessarily clear at what point they must instead consult EIR guidance and apply that regime. A single code of practice could provide better integrated guidance and more effectively alert FOI practitioners to the EIR issues which they must consider. In addition, ICO decision notices could distinguish more clearly between the two regimes. Maurice Frankel listed a number of decision notices which showed that the Information Commissioner was content to deal with requests for environmental information under either regime and pointed out:

We see no reason to object to the policy, so long as it is explained in the decision notices concerned—but this has not been done. The result may be to encourage authorities to disregard the boundaries between the two regimes. In certain cases this may lead to the withholding of information which should be released.[34]

31. Some public authorities are not recognising the circumstances in which they should apply the EIR rather than the FOI Act. We recommend that DEFRA and DCA work together to prepare a shared code of practice for the EIRs and FOI.

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16   Ev 101, para 20 Back

17   Ibid Back

18   Ev 87, paras 14-16 Back

19   Ev 100, paras 7-11 Back

20   Ev 83, para 13 Back

21   www.dca.gov.uk/foi Back

22   Qq31 and 32 Back

23   Ev 83, para 13 Back

24   Ev 98, paras 2.5 and 2.6 Back

25   Q34 Back

26   Ev 83, paras 16 and 17 Back

27   Ev 97, para 2.2 Back

28   Ev 75 Back

29   Ev 87, para 18 Back

30   Ev 76  Back

31   Ev 2.2.2 Back

32   Ev 93, para 13 Back

33   Ev 88, para 22 Back

34   Ev 77 Back

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Prepared 28 June 2006