Bad Policy

On July 19th 2018, Linda McKee made a simple (but admirably polite) FOI request to the Information Commissioner’s Office. McKee asked for a copy of the ICO’s special categories policy document, a requirement of the Data Protection Act 2018 when processing special categories data in certain circumstances. The DPA was passed in early May 2018, but the requirement for special categories policies had been known since the DP Bill was published in September 2017. Policy documents were not required under the previous DP regime, and having run training courses on both the Bill and the Act, I can confirm that many people in the sector were keen to see real life examples of a policy document. McKee’s request made a lot of sense.

On 17 August (maintaining the ICO’s flawless record of replying to FOIs at the last minute), Wilmslow responded. They confirmed that a policy document was held, but as there was a clear intention to publish the policy document in the future, they refused to disclose it. This seemed a bit daft to me; Section 22 of FOI is designed to protect the organisation from early publication of information. The revelation of the ICO’s special categories policy would hardly cause ripples throughout the sector. Staff would not have been diverted from their normal jobs to deal with the torrent of press attention its release would provoke. They should have coughed it up and moved on.

McKee asked for an internal review, and at this point, the Commissioner headed determinedly the wrong way. There is no fixed time limit for an internal review, which is a flaw in the legislation but nevertheless not something that the organisation should exploit, and the ICO dragged it out for MONTHS. I have to be honest, I didn’t really pay attention, aside from using the ICO’s inability to release a relatively simple document as a gag on my DPA courses. Towards the end of 2018, I checked back in on McKee’s woes, to see an interesting suggestion on the What Do They Know thread. It seemed that when the ICO replied in August, the policy hadn’t actually been finalised.

I couldn’t quite believe this, so over Christmas, I made an FOI request to clear the matter up. I asked whether the policy was held in a final approved form when the ICO replied to McKee in August, for any recorded information about whether the ICO should actually have replied that the policy was not held (because it was not finished), and for a summary of why the ICO refused the request.

And here, a brief interlude to consider a section of the FOI Act that has tantalised FOI experts for years without resolution. Section 77 makes it a criminal offence for the organisation to alter, deface, block, erase, destroy or conceal any record held by it with a view to frustrate its disclosure. So if I am working for a public authority and I pretend that a record isn’t held in order to prevent an FOI punter from receiving it, I have committed an offence. If the organisation conspires in this, the organisation can itself be prosecuted by the Commissioner.

Back to my request to the ICO. They replied (once again, remarkably close to the 20 day deadline), and told me two interesting things. First, in answer to my question about whether the policy was held in a final approved form: “The policy was not held in final approved form“. Second, any recorded information about whether any data held constituted the requested information, or whether the ICO should in fact responded that the information was not held: “We do not hold recorded information. As you will be aware the Freedom of Information Act only covers recorded information held by a public authority. However, it may help you to know that there was a verbal discussion in regard to the response to this Freedom of Information request.” So, there was a verbal discussion that people plainly remember, and the ICO thinks it might help me to know this, without even a squeak about what the discussion was about. Thanks, Wilmslow, consider me unenlightened.

I believe that the ICO’s response to McKee’s request is untrue. The correct answer to her request is ‘no information held’, with advice and assistance that the data was in draft. Section 22 applies where the requested information exists but the organisation intends to publish it unchanged in the future; the ICO’s policy wasn’t complete. Look at what McKee asked for all those months ago: she asked for “your Policy designed to show compliance with Schedule 1, Part 4 of DPA 2018“. An incomplete, unapproved policy plainly does not answer the request, and the ICO should have confirmed that. The use of the exemption was a dishonest dodge to avoid admitting the truth.

If the ICO had a policy and pretended that they did not, under Section 77 it would have been a criminal offence for them to conceal its existence once it had been requested. As it happens, the ICO did the opposite – pretending that the information existed and refusing to give it out because it would be published in the future, rather than admitting that several months after the DPA was passed, the policy was not complete. Whoever decided that this was the right approach should think long and hard about a transparency regulator taking such a cynical attitude to legislation they are supposed to uphold and protect.

While QE2 tries to grab the headlines, demanding that FOI be extended to cover new organisations, her own house is far from being in order. The lack of FOI enforcement against recalcitrant and secretive government departments is an ongoing stain on the ICO’s reputation, while the lazy cynicism and lack of frankness over the office’s own activities suggests that the ICO can talk the talk, but walking the walk is beyond them. Regular readers of this blog are probably inured to my lack of faith in House Wycliffe, but for all Denham’s chasing of headlines, day to day experience of how the ICO carries out the most mundane of its functions suggests carelessness and disarray. Rather than trumpeting the press releases about extending FOI to charities and commercial bodies, more people should ask whether the ICO is capable of doing even those tasks it already has.

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