How to succeed in backlogs without really trying

First, two disclaimers.

1) The ICO’s previous FOI backlog was disgraceful, and it developed on Richard Thomas’s watch. Chris Graham and his staff deserve great credit for trying to kill it off. The fact that an organisation can no longer make a decision knowing that they won’t answer for it for two years is a success, and a shorter distance between request and decision is A Good Thing.

2) I am not the first person to complain about the Information Commissioner’s approach to late requests – @FOIMonkey, an applicant called Gordon Spitze and What Do They Know’s Ganesh Sittampalam got there before me.

And now to business. In September 2011, I made an FOI request to a government department. I have not received a response. In November, I requested an internal review on the basis that my original request had not been dealt with. I have not received a response. The department has gone through phases of sending me polite reassurance, promising that they’ll deal with my request soon, but mainly, when I contact them, they ignore me.

If anyone in the department happens to be reading this, can I just pass this on: section 77 of the Freedom of Information Act states that where a record has been requested: “Any person to whom this subsection applies is guilty of an offence if he 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.”

Ahem.

Moving swiftly on, it’s pretty obvious that they are not going to respond to my request. Even a refusal would oblige them to move up to the formal internal review, getting my request closer to the Information Commissioner’s Office on a matter of substance. So eventually, I tired of waiting, and made a complaint to the Information Commissioner’s Office at the end of February about the absence of a response.

And here’s where we get to the problem (well, the other problem). After a short interlude, I received a response telling me that my complaint was not going to be investigated. They promised to write to the Department asking them to respond to my request. They ended by saying “This case has now been closed with the delayed response element showing as ‘withdrawn’ on our records.” Which the more eagle-eyed of my readers will recognise as, to use the technical term, bullshit.

I contacted them to point out that I had not withdrawn my request. The next email came from a manager (always an interesting sign, especially when you haven’t asked for it). In the email, the manager stated that the initial response was incorrect: “we stopped using the phrase ‘withdrawn’ in our correspondence some time ago as we felt it was a term which potentially lacked clarity”. It didn’t lack clarity at all. It was completely clear and totally untrue, and I might add, a potential breach of the Data Protection Act’s fourth data protection principle, which states that personal data should be accurate. It’s inaccurate to say that I have withdrawn my complaint when the ICO has closed it. Those still wanting I-Spy points will notice a subtle distinction in that sentence as well. They stopped using the phrase ‘withdrawn’ in their correspondence, but they didn’t stop marking them as withdrawn. Only when I pressed them did the manager finally confirm that my request was now marked as ‘closed’.

A What Do They Know applicant asked for the withdrawn FOI requests at the end of 2011. Between 2009 and 2011, 2136 requests were ‘Closed – withdrawn informally resolved’ and 2273 were ‘Closed – withdrawn robust’. These internal figures imply that thousands of requests were withdrawn, when my case strongly suggests that they weren’t, possibly across both categories. Was someone trying to create the impression that far more requests are withdrawn than is actually the case? And if so, why? And if I was being paranoid, does the fact that all requests seem to be marked ‘Closed’ affect what I’ve been told?

To complicate matters further, despite the internal figures released under FOI suggesting that 554 were ‘withdrawn robust’, and 652 were ‘withdrawn informally resolved’ in 2011, the Information Commissioner’s Annual Report for 2011 states that of the 4000+ FOI complaints received in 2011, only 2% were ‘withdrawn’. The Annual Report has to be correct as it is submitted to Parliament, and yet when it’s hard to square with the figures released figures under FOI. So what’s going on?

The recipient of my request is not going to answer my request unless someone makes them – it’s obvious that they’re sitting on my request until other matters are resolved. In 2006, when the ICO’s backlog was as long as your arm and contacting them was pointless, I had to write to the Permanent Secretary of the Home Office in similar circumstances to get an endlessly delayed FOI response on ID Cards (full credit to him – he wrote back to me to apologise and I got my response in days, albeit in the negative). Those days are supposed to be gone.

One purpose of killing the backlog is surely to give the Commissioner the ability to intervene quickly and effectively when things are going wrong. But polite letters are useless when dealing with a recalcitrant body and the ICO should stop acting like a shy maiden aunt in such situations. Given that the facts are not in dispute – my antagonists don’t say that my request is invalid, or that they have responded – a decision notice is the only step. To any readers in Wilmslow (some have already outed themselves) – with DP and FOI being the law, you don’t have to ask people to comply with it, you can tell them to. With your powers. Which is what they’re for. Which makes it easier for all the people who are complying already to justify keeping up the good work. Which benefits everyone.

A certain amount of triage is necessary – for example, a complainant might go to the ICO when they haven’t made a valid request, or when they’ve been refused and don’t want to bother with an internal review. The ICO has the power to refuse to deal with FOI complaints if they are frivolous or vexatious. Rather than refusing to deal with entirely legitimate and fundamental complaints about non-response – which flouts the very basis of the Act – maybe they can strike down some of the daft complaints (I’ll write them a list, pro bono, based on the last year’s decisions).

The ICO’s annual report proudly states that 31% of the FOI casework was closed in 30 days or less – but it’s legitimate to wonder how they achieve this. The polite, effectively unofficial letter they sent to my public authority didn’t work and I effectively had to make a second complaint. This is actually a good sign – they didn’t mess me about and because my case was reopened. I know a lot of other applicants who have struggled to get a case reopened so quickly, if at all.

The majority of public authorities don’t need attention from the Commissioner in the first place and it is massively unfair to them for the ICO to molly-coddle the minority. I refer you to the ICO’s feeble strategy towards the Cabinet Office in a huge number of decisions outlined here if you want evidence. Chris Graham talks a good game – he sounds much more convincing than his predecessor when he talks about taking strong action. But recent decision notices show that the hand wringing hasn’t stopped, even with the Cabinet Office (see last paragraph).

It’s obvious that decisions get made must faster than before, and I don’t detect any issue of the quality of decisions getting worse. If anything, it’s the opposite. But nevertheless, the ICO cannot ultimately say that it has slayed the backlog if it doesn’t tackle the most fundamental FOI issue properly, or if there is any suspicion of books being cooked. Preventing big and small public authorities from simply ignoring requests is important. Many of the organisations I train have superb FOI response rates that would shame most Government departments – a more courageous and effective response to the heavy FOI complaints workload would be to dish out some Enforcement Notices to the worst offenders. No Minister or Permanent Secretary wants their department to labour under the discipline of knowing that FOI failures might end in prosecution. As the Commissioner’s own introduction to the ICO Plan says “when we need to enforce, enforce we shall” (his emphasis). Rather than outsourcing bits of their complaints-handling process to complainants, some action to match the rhetoric would be reassuring. An enforcement power is not a toy.

Comments

  1. By section 50 of the FOI Act a complainant may ask the ICO to issue a Decision Notice, and the ICO must comply unless the person has not exhausted the public authority’s complaints procedure or the application is frivolous or vexatious or it has been withdrawn or abandoned. You didn’t, as the ICO manager eventually accepted, withdraw your complaint (and you had clearly exhausted the public authority’s complaints procedure) so on what legal basis can the ICO “close” the complaint?

    The answer is “they can’t”, unless they say you’re being frivolous or vexatious. Which you aren’t (are you?).

    And what recourse does an aggrieved complainant have? He/she can’t complain to the Information Tribunal about the ICO’s decision not to issue a Decision Notice. He/she can only, as far as I can see, make an application for judicial review. Not a happy situation.

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