Public Services

ICO chief prepared to crack whip over Whitehall FoI compliance

Neil Merrett Published 16 December 2016

Elizabeth Denham suggests that audits of departments' approach to transparency law may need to be stepped up, while targeting an extension of the legislation to all public service delivery


Nine central government departments have failed to ensure at least 85% of Freedom of information (Foi) requests they receive are answered within 20 working days, amidst wider concerns from campaigners and the UK information commissioner on Whitehall's adherence to the regulations.

After publishing findings of an independent review of the FoI Act in March that ruled out "radical amendments" to the legislation despite leaving room for potential amendments around ministerial vetoes, questions remain over the government's approach to the legislation.

The Information Commissioner's Office (ICO) confirmed this month that it had already opted to undertake an audit of an undisclosed government department over its adherence to FoI, while calling for an attitude change in Whitehall over its obligations to the act. Failure to amend its approach so could see the regulator heighten scrutiny on all departments.

Speaking at an event in London to commemorate 250 years since the world's first freedom of information laws were said to have been passed by Sweden and Finland, UK Information Commissioner Elizabeth Denham set out key aims for the FoI Act, as well as her concerns about Whitehall's current approach to its powers.

From the perspective of compliance, Denham noted that a 30% cut to the ICO's budget over the course of the last three year for FoI had limited its resources. She also expressed concerns that existing regulations may be too lenient on departments.

"I think that central government though has got away with - I'm not going to say murder - I think they've got away with behaviour that needs to be adjusted and we need to focus on some of the central government departments," she said.

"I also worry that setting the 85% for our monitoring - so if 85% of requests are on time we won't monitor you - that seems a little low in my estimate so there may be some areas where I need to go in and do some more audits. I know which organisations we need to focus on...We're already doing an audit I just won't say where."

Denham, who took up the information commissioner role in July, said that 'the right to know' as a concept should be extended to public services, regardless of whether a provider is from the public, private or third sectors. She added that the ICO would also submit a report to parliament next year around transparency and outsourcing.

According to new government data on FoI requests received between July and September 2016, the Department for Energy and Climate change was found to have answered 65% of requests within 20 day period. Other departments such as the Department for Communities and Local Government (DCLG) and the Ministry of Justice (MoJ) were found to have dealt with 57% and 79% of enquiries respectively within the 20 day time limit.

The Wales Office and Northern Ireland Office, as well as the Department of Health, have all posted compliance response rates of 100% for the quarter. Meanwhile, the Cabinet Office was found to have responded to 91% of FoI request between July and September on time.

While the Scotland Office has seen its timeliness to FoI responses improve from 61% in the first quarter of 2016, to 83% between July and September, other central government departments has seen declines in their timeliness.

The Department for Work and Pensions (DWP) saw the number of responses answered in time fall to 78% between April and September. The figures showed the Home Office has also been less timely in responding to FoI requests for the first nine months of the year, while the recently created Department for Exiting the European Union was found to have responded to 72% of queries in the first 20 days during its first quarter of operation.

Maurice Frankel, director of the Campaign for Freedom of Information group, said that the publication of the latest FoI figures showed a number of departments doing "very poorly" to ensure compliance with the Act throughout 2016.

He also noted concerns around government definitions of what constitutes a timely response, with decisions that are delayed up to and beyond 40 days - in order to clarify if they passed a 'public interest' test - still being classed as delivered on time.

On the back of the conclusion of an independent review of the FoI Act that called for a clearer exemption of information disclosing internal communications concerning government policy, but ruled against significantly curbing existing powers, Frankel said a number of questions still remained over the legislation's future.

"We've seen no sign of improvement around the time of responses in Whitehall despite mention of this within the review," he said.

Frankel said another question mark that still hung over the legislation was the lack of a government response over whether to commence charging individuals should they decide to appeal an FoI publication decision.

"We have had no formal decision from the government yet around considerations to charge for appeals," he said. "We see this as a change that would definitely undermine the appeals process."

Related articles:

FoI Act review backs government veto and exemption rewrite

ICO head Elizabeth Denham targets public service contractor transparency

FOI Act committee launches consultation process


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