Brian Sims
Editor

DIT and BEIS targeted for failure to comply with Freedom of Information Act

THE INFORMATION Commissioner’s Office (ICO) has issued an Enforcement Notice to the Department for International Trade and a Practice Recommendation to the Department for Business, Energy and Industrial Strategy over “persistent failures” to respond to information access requests within the statutory time limit.

The action comes under the ICO’s renewed approach to regulating the Freedom of Information Act 2000, which commits to taking action against public authorities with consistently poor performance. The approach is set out in the ICO’s new Freedom of Information and Transparency Regulatory Manual and the Strategic Plan published under the heading ‘ICO25’.

John Edwards, the UK’s Information Commissioner, stated: “For the first time in seven years, the ICO has issued a Freedom of Information Enforcement Notice, which clearly marks the start of our new approach to regulating the Act. Accountability and transparency in the work of public authorities is fundamental to democracy and it’s the ICO’s role to ensure that people’s right to access information is protected.”

Edwards concluded: “I advise public authorities to take note and learn lessons from the action we have taken here as we will be making greater use of our powers under the Freedom of Information Act 2000 in order to drive good practice and compliance.”

Government statistics

Freedom of Information statistics for central Government show that, from January to March this year, the Department for International Trade issued late responses in over 50% of requests. This is a breach of both Section 1(1) and Section 10(1) of the Freedom of Information Act 2000.

The statistics also show that the Department for International Trade had the worst response figures for the whole of central Government. Its response times also declined in 2021, despite there being no significant increase in requests or known resource issues at the Department.

The Department for International Trade has been issued with an Enforcement Notice as a result of the significant drop in its performance and because the delays that people have experienced were simply due to internal process failings, rather than more significant problems.

The Department is now required to respond to any outstanding requests older than 20 working days within 35 calendar days of the Enforcement Notice. It’s also required to devise and publish an Action Plan formalising measures designed to mitigate any future delays. Failure to comply with the notice could lead to the Department for International Trade being found in contempt of court.

Practice Recommendation

The Freedom of Information statistics for central Government have shown that the Department for Business, Energy and Industrial Strategy consistently failed to respond to a significant number of the information access requests received within the statutory time limit.

The statistics also highlight that the Department for Business, Energy and Industrial Strategy has received a 55% increase in requests since 2020, unlike the Department for International Trade, which received relatively stable numbers of requests in a similar period.

During discussions with representatives of the Department for Business, Energy and Industrial Strategy, the ICO found that the Department’s own internal procedures were the cause of many responses being delayed, in addition to the volume increases. The Department for Business, Energy and Industrial Strategy has actively engaged in discussions with the ICO regarding its internal procedures and explained the impact of increased requests on its service. It also highlighted – and shared – details of the proactive action it was taking to improve performance.

Although the ICO concluded the Department’s practices did not conform to the Freedom of Information Code of Practice, it took into account the mitigations highlighted by the Department for Business, Energy and Industrial Strategy and the positive engagement it had with the ICO. As a result, the ICO has issued the Department with a Practice Recommendation rather than an Enforcement Notice.

Developing an Action Plan

The practice recommendation sets out steps the Department should take, including the development of an Action Plan detailing how it will improve its performance. It also makes clear that this Action Plan should be published and that the Department should improve its processes such that any internal consultation does not delay compliance with its legal obligations.

A Practice Recommendation is not enforceable. They are issued when the ICO concludes that the handling of requests by a public authority does not comply with the Freedom of Information Code of Practice. Practice Recommendations are issued under Section 48(1) of the Freedom of Information Act 2000. If performance does not improve, this may lead to a failure to comply with the Freedom of Information Act 2000, which can result in an Enforcement Notice being issued.

An Enforcement Notice is issued under Section 52 of the Freedom of Information Act 2000 and requires a public authority to take specific steps to comply with Part 1 of the Act. It’s a formal notice issued to address system-wide or repeated breaches. Failure to comply with an Enforcement Notice may lead to a public authority being found in contempt of court.

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