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Info Commissioner draws FOIA flak

Implementation issues

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The Freedom of Information Act has produced wider access to information – but the legislation has been implemented in a way that hinders requests, and the Information Commissioner is partly to blame, a House of Commons committee has heard.

Oral evidence was presented to the Constitutional Affairs Committee of the House of Commons. The Information Commissioner, when challenged by MPs on 14 March, rejected most of the complaints but claimed his office was under-funded.

Maurice Frankel, chair of the Freedom of Information Campaign, gave evidence to the Committee on 28 March. He said that delays in dealing with FOI requests were "a problem at every stage" of the FOI process. He said user experience was characterised by a delay "in responding to request", a delay "in completing internal reviews" and lengthy delays "in getting decisions from the Information Commissioner".

He also pointed out that "there is a nominal 20 working-day response period, but it is expandable for an unspecified reasonable period, whenever public interest is to be considered".

Steven Wood, a lecturer at Liverpool John Moores University who runs a FOI blog, told MPs: "The longest [delay] I have experienced is 70 working days."

He said you are often in a quandary as to whether you want to complain to the Commissioner because "if you take your complaint about the delay to the Commissioner, the Commissioner only investigates the delay". Thus if the public authority applies an exemption at a later stage "you then have to go back again" and complain to the Commissioner about the same request.

In relation to "the Commissioner’s performance and, in particular, the backlog of appeals cases", Frankel said that problems existed with "the quality of the notices and the investigations". He was concerned that when the enforcement arrangements in the legislation were designed, people assumed "that the tribunal would be there to hold the Commissioner back" and that cases before them would relate to public authorities complaining about the release of information. In practice, he said, "what the tribunal are doing is pushing the Commissioner forward" saying that more of the requested information should have been released to the applicant.

Wood also told the Committee that "a perception may be building up that the Information Commissioner perhaps lacks the authority to be able to get through these cases quickly", and that public authorities "may be downgrading their risk analysis to do with what they think the risks from the Act are to them".

Frankel agrees. He added that there as a risk that some FOI applicants would ask: “What’s the point of this Freedom of Information Act if I can’t get a decision?”

David Hencke, a journalist at the Guardian specialising in Parliamentary matters, told MPs that he had a "feeling that they [the OIC's office] are not very well organised" and that "I also rather wonder about the resources that they put aside" because "there seem to be far more cases coming up to them than they obviously anticipated".

Dr Lydia Pollard, representing Local Authorities, told MPs that when public authorities have contacted the OIC for informal guidance, "They have been advised, that the Information Commissioner’s Office was not able to give that because it might prejudice a complaint".

She added that in some instances "guidance has been slow to come out". But in his own evidence, Information Commissioner Richard Thomas rejected most of the complaints. The backlog of requests arose, he said, because of the Government's decision to implement FOI across all public authorities at the same time. He added that there was a "complexity and the lack of tidiness" in which cases for a decision were presented to him and this added to the work to be done. The result is that "each case is taking substantially longer than we had anticipated", he said.

The Commissioner said that recruitment of suitably qualified staff was an issue. He told MPs that, as the starting salary was £15,000 a year for a complaints handling officer, "you will not get very many people at those sorts of salaries who have got extensive experience of working inside the public sector at a senior level".

Thomas added that his Government grant for FOI work was inadequate and that he had put in a bid for an extra grant of £1.13m to add to his baseline funding of £5m per year. He said that if the full sum was granted, his office could clear the backlog within 14 months.

In relation to the standards and quality of the work produced by staff, MPs were told that the OIC had "included in our recovery plans specific action to address the issue of training of staff, performance and knowledge management".

The Constitutional Affairs Committee is expected to report in the summer.

See: Transcript of Richard Thomas's oral evidence.

Note: this is an unapproved transcript and neither witnesses nor MPs have had the opportunity to correct the record. The evidence of Maurice Frankel etc. can be heard on Parliament Live (for the next three weeks) and is to be published on the Committee's website soon. Search by date (28 March 2006) and you can access the recording from page two of the results.

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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