Wednesday, July 22, 2009

Information Tribunal criticises ICO delays

The Information Tribunal has criticised the Information Commissioner's Office for delays in investigating Freedom of Information complaints. In the case of Student Loans Company Limited and Information Commissioner, the Tribunal said:
Mr Swain complained to the Commissioner on 18 July 2006. Regrettably, there then followed a period of 22 months’ delay during which, so far as we can tell, the Commissioner took no steps to fulfil his statutory duty under FOIA s50. His investigation only commenced on 16 May 2008. We are not in a position to say, and it is not for us to decide, to what extent that inordinate delay was due to lack of resources, or to deficiencies in the Commissioner’s systems of internal management, or to a mixture of those or indeed other causes. What is clear is that the volume of complaints to the Commissioner has been much higher than was predicted and, in cases where information ought to have been disclosed by the public authority, long delays in the commencement or conduct of the Commissioner’s investigations tend to frustrate the purpose of the Act and deny to the public the rights which the Act has created.

The investigation was concluded on or about 17 July 2008, but the Commissioner’s decision notice was not issued until 3 November 2008. Since the delays were not an issue in the case, we have no information on why such a long period elapsed from the conclusion of the investigation to the issue of the decision notice. The present case is not one of exceptional difficulty. We would have expected that in a properly resourced and properly managed office, following the conclusion of the investigation, three weeks would have been a sufficient period for the production of the Commissioner’s reasoned decision.
The overall picture in this case is disturbing. As we have indicated, the request for information was originally made on 21 March 2006, and the matter was referred to the Commissioner on 18 July 2006. From that point it took in excess of 2¼ years for the requester to obtain a decision from the Commissioner that the information ought to have been released. For many requests which are made under the Act, the timeliness of the release of information is important. Where public interests are served by the disclosure of information, they are usually better served by prompt release than by a disclosure which is held up for months or years. The Act is written on this basis: subject to certain exceptions, information is required to be disclosed by the public authority within 20 working days after the request. It seems to us that delays of the magnitude which occurred here seriously undermine the operation of the Act. The right to obtain information that ought to be made public loses much of its usefulness if it cannot be enforced within a reasonable timescale. While it may be that a requester could compel the Commissioner to act promptly by means of an application to the High Court for judicial review, most requesters are unlikely to possess the determination or the funds to make this a practical option. If public authorities come to expect that a reference to the Commissioner may take several years to be dealt with, they may be tempted to withhold information that ought to be disclosed, in the hope that the requester or the public will have lost interest in the topic by the time it is finally prised out of them, or that any embarrassment that might have been caused by prompt disclosure will be diminished because of the passage of time. Such a situation would be wholly unacceptable.
This ICO's decision in the Student Loans Company case was highlighted in the Campaign for Freedom of Information's report Delays in Investigating FOI Complaints as having the longest delay before the ICO's investigation began - 22 months.

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