FOIA Centre news: FOIA regulator must become more ‘assertive’

MPs who investigated “freedom of information” in the UK called on the information commissioner to “adopt a firmer approach” with public bodies.
The cross-party constitutional affairs committee, chaired by Alan Beith, the Liberal Democrat MP for Berwick-upon-Tweed, says in a report: “A culture change towards greater openness is the long term aim, but the immediate priority should be a more effective and assertive enforcement of the law.”
It also rebuked Baroness Ashton of Upholland, a minister at the department for constitutional affairs (DCA), the government body that oversees FOIA, for failing to recognise the “serious threat” over the long-term preservation of electronic records.
The report, which reviewed the first year of full implementation of the UK freedom of information act (FOIA), called on the DCA and the information commissioner’s office, which regulates this and other open-access acts, to ensure that “public authorities recognise their obligations under FOIA.”
The commissioner, Richard Thomas, told the committee in March: “We have resolved that we must be considerably tougher in some respects as we go into the second and third year, and we have already started to show some signs of how we can be tougher using the range of tools at our disposal.”
In their report entitled, ‘Freedom of Information – one year on’, the MPs say: “We support the commissioner’s decision to adopt a firmer approach to enforcement. We expect to see him use his full range of powers to improve compliance and reduce the delays being experienced by requesters.
“We recommend that the DCA takes a more proactive role in ensuring that government departments co-operate fully with the commissioner and provide him with the information required for his investigations.”
“Our overall impression is that the complaints resolution process provided by the information commissioner’s office during 2005 was unsatisfactory. We heard evidence from requestors and public authorities who had waited months for the information commissioner to start investigating their complaints.”
“A recovery plan is now in place to improve the quality and quantity of decision notices issued by the information commissioner’s office.”
Thomas also told the committee in March that he was, at the time, still waiting to hear about his bid to the DCA for an extra £1.13 million to clear the backlog of complaints about responses by public bodies to FOIA requests.
In April, the department said that it had agreed to £550,000 extra funding.
The MPs say: “We are surprised that the need for additional resources was not identified earlier in 2005, before the backlog became such a problem, and we are not convinced that adequate resources have been allocated to resolve the problem, or that they were allocated early enough.“
“The commissioner has told us he will publish a progress report in September 2006. We expect this to provide measures of quality as well as quantity. We will use this report to monitor the success of the recovery plan and to assess whether further action by the committee is needed.”
The committee was uneasy about the relationship between the DCA and the commissioner’s office. “We are concerned that resource restrictions and staff salary constraints could limit the commissioner’s performance as an independent regulator and recommend that other reporting arrangements be considered if the recovery plan does not achieve its stated objectives.”
And the committee endorsed the argument for greater independence for the commissioner advanced by Heather Brooke, author of the ‘Your Right to Know’ guide to FOIA, in an article on the FOIA Centre website, ‘What’s up with the information commissioner?’
The MPs said: “We see considerable merit in the information commissioner becoming directly responsible to, and funded by, parliament, and recommend that such a change be considered when an opportunity arises to amend the legislation.”
They also “see no need to change the fees regulations.”
“We recommend that problems with ‘frivolous’ requests should be dealt with through the existing provisions in the act. We do not consider that this is an appropriate reason for reviewing the fees regulations.”
“We recommend that the DCA publish the results of its internal fees review when it is concluded and that it conducts a public consultation before deciding on any change.”
Despite the problems, the committee found that FOIA has proved “a success”.
It said: “It is clear to us that the implementation of FOIA has already brought about the release of significant new information and that this information is being used in a constructive and positive way by a range of different individuals and organisations. We have seen many examples of the benefits resulting from this legislation.”
“Members of the public, as well as journalists, campaigners and academics, are making use of the legislation, and, in general, public authorities are coping with its demands.”
However, the most common problem was over delays in responding to requests. “Published data show that there are many cases where the 20-day statutory response time is not being complied with.
“In addition, lack of interpretation in the code of practice as to ‘reasonable’ time limits enables public authorities to make indefinite extensions of many months in order to make public interest decisions and to conduct internal reviews. These delays undermine the effectiveness of FOIA and reduce the benefits to the public.”
“Some of these delays can be attributed to author-ities’ inexperience and we expect to see an improved compliance with the 20-day statutory response deadline over the next year or two as authorities become more familiar with FOIA.
“We believe that many other long delays are attrib-utable to the lack of clarity about response targets in the central guidance, and that the DCA could and should bring about a much more timely response from the public sector by setting specific targets for public interest consideration and internal reviews.”
“The 20-day response deadline is a statutory re-quirement and not merely a target.”
“We recommend that the department guidance be updated to reflect the information commissioner’s guideline that two months should normally be sufficient to reach a decision about the public interest and the minister’s undertaking that wherever possible all information should be disclosed within 20 days.
“We recommend that the department publish data to show how often, and by how much, this guideline is exceeded by government departments.”
“We would be concerned if there were cases where public authorities were spending weeks finding information… it would demonstrate a serious shortcoming in some public authorities’ records management systems.”
The committee also says: “The long-term preserv-ation of electronic records is widely recognised as a serious problem.”
It continues: “When the minister, Baroness Ashton, came to give evidence to us about government plans to ensure the long-term preservation of documents held in digital form, we were disappointed by her failure to recognise that this was a serious threat.”
“Baroness Ashton’s attitude that adequate proc-esses for the long-term preservation of digital records are in place contrasts with the views of the National Archives. Her response to our questions does not accord with the widely recognised view among industry specialists that digital preservation of records is a complex and urgent problem to which no satisfactory long-term strategy has been found.
“Difficulties in accessing older electronic records could soon become a serious problem for government departments. There is a serious possibility that material over 10 years old will essentially be irretrievable in the near future and complacency about this is not acceptable.
“Plans are needed to handle the rapid and signif-icant changes in technology and the inevitable degradation of storage media. National Archives and the DCA must take the lead in developing such plans.”
“Freedom of Information has no force without a proper commitment to ensure that the information held is in a retrievable form.”

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