FOIA Centre news: ‘We’re trying our best and we're getting tougher,’ says commissioner

“We saw the first year as a learning year for ourselves as an organisation,” Richard Thomas, the information commissioner, told MPs.
He faced a grilling at the constitutional affairs com-mittee hearing held today over the performance of the office of the information commissioner in regulating the freedom of information act (FOIA) during its first year of full implementation. The par-liamentary select committee is holding three hear-ings this month as part of a review of FOIA so far.
Thomas told the committee that 2005 was also a “learning year” for public bodies. In his testimony, which has been published by parliament but is subject to corrections by him and committee members, he said: “We tried to be reasonably tolerant, reasonably non-confrontational trying to help public authorities get it right, a lot were struggling, certainly in the early months, to understand the implications.
“And I think 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.”
“No public body can assume that business is as usual. Pre-2005, the way things were done then, has been changed fundamentally by the act.”
He gave reasons for the backlog of complaints yet to be resolved. “One of the issues that we have really come across is that, perhaps, the complaints did not come to us neatly packaged, as we might have expected.
“We had, perhaps, expected that once the request has been made to the public authority, once it has been through an internal review, both the requestor and the public authority would know what the issues were and would present them to us, if you like, as a package which we could investigate quite quickly and make decisions quite quickly.
“I am bound to say that both the way in which many requests have been articulated, the way in which complaints have been brought to us and the responses of the public authorities has been a great deal less tidy than we might have expected, and we have had to spend quite extensive time in many cases investigating the circumstances ourselves in communicating with the public authorities to find out what the issues are about and then crystallising the issues before we can make a decision.”
This “complexity and the lack of tidiness” made cases “more demanding than we had expected,” each “taking substantially longer than we had anticipated.”
He continued: “We are making improvements. We have put in place a recovery plan. There are a number of elements to that.”
“We have substantially strengthened our case rec-eption arrangements. We are looking far more closely, when a case comes in, as to whether it is eligible, whether it has been through the internal review process, whether all the information we need is complete, whether there has been sufficient contact with the public authority.”
“We are looking to prioritise cases more. We are moving away from more of a cab-rank principle, dealing with cases on a first come, first served basis, and we are now looking at the cases by reference to greater prioritisation.”
“We have taken decisions to cut down the number of academic cases we deal with, those cases where, in theory, we are able to criticise a public authority for breaching, perhaps, a procedural requirement, but the information has been disclosed.”
“I would say, though, that we have done pretty well in the last three or four months.”
“I do have to emphasise how difficult it can be for our staff to get to grips with the cases. We are not familiar with the workings of the public authorities.”
“We had the problem, which this committee identified, the so-called big-bang problem of 115,000 public authorities all starting at the beginning… It was a done deal and I had to accept the government's line on that.”
“We have had quite protracted correspondence for some public authorities, sometimes through the need for them to get more familiar with the legislation, in other cases, perhaps, a bit of foot dragging on the part of public authorities. Complexity, factually and legally, it is a challenge.”
He produced details of some delays encountered by his staff. “I have got 31 examples here, 17 of which relate to central government, where there has been greater prevarication than we are comfortable with.
“To give you some examples: ‘They needed to seek the view of the minister, slow at responding and missing deadlines for response, we had to chase up, no further contact from this department to date, attempts to move things along have drawn a total blank.’
“That is why I said we are now toughening our act; we are now using our powers to chase these up. We were quite tolerant in the first year. We knew that everybody was getting up to speed.
“I deliberately did not want to choose a confront-ational approach either with Whitehall departments or with other public authorities. I wanted to get them gradually into the swing of dealing with it, but now we recognise that there have been longer delays than are acceptable in some areas.”
“In the last few months, we have been churning out decision notices quite regularly, and, if you look at the detail of some of these, you will see how complex and demanding some of them are. Quite regularly now, a decision notice has to run to 10, 11, 12 pages of quite close analysis before we can reach a conclusion on a particular point.”
“I am coming clean this afternoon in saying that we know we have got to improve our performance, and we have been doing that in the last three or four months. We can do further improvements but we need more resource as well.”
He said that he was waiting to find out from the department of constitutional affairs how much of his request for £1.13 million extra funding to clear the backlog in a year would be granted.
“I am not comfortable with the fact that we have delays inside my office, and I am being straight with the committee that we recognised the problem as it was emerging in the autumn of 2005.”
Keith Vaz, Labour MP for Leicester East, asked: “When you are lying awake at night thinking about this backlog, which I am sure you are, counting the number of cases as they jump around the field, do you worry that perhaps there is a hidden motive in not giving you this money?”
Thomas replied: “I do not worry in those terms, Mr Vaz, but I think there is an interesting issue you have put your finger on there, which is, I have to say, I am a little uncomfortable that the same part of the same government department is responsible for policy on FOIA, for leadership of the clearing house [for requests to central government departments] and for sponsorship of my department, and I think that there are some slightly uncomfortable questions there about competing considerations.”
Vaz: “Do you think there is a conflict of interest?”
Thomas: “I think, perhaps, maybe this committee will want to speculate about that. I would not go so far as to say outright that there is a conflict of interest, but I think it is an uncomfortable juxtaposition of functions.”

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