Compliance with Freedom of Information Act (UK0106)

Objective: To consider measures to strengthen FOI practice across public authorities with a view to improving compliance with the provisions of the Freedom of Information Act, including the timeliness of responses.

What problem does the commitment aim to address? The Freedom of Information Act is a vital tool for holding public authorities to account. But delays in answering requests and completing internal reviews (required before a complaint to the Information Commissioner can be made) undermine its effectiveness. Delays are a major source of frustration for FOI requesters, leading to increased complaints to the Information Commissioner. FOI requests should be answered promptly and usually within 20 working days. Public authorities are permitted to extend the standard 20 working day period to consider the public interest test which applies to certain exemptions. In these cases, an unspecified ‘reasonable’ extension is permitted under the Act. The Information Commissioner’s guidance says that extensions should not normally exceed a further 20 working days. If a requester is dissatisfied with how their request has been handled, they can ask for an internal review and, beyond that, complain to the Information Commissioner’s Office (ICO). Only half (51%) of the extensions taken by central government bodies in 2021 were completed within 20 working days. In 2021, less than half (46%) of internal reviews by central government bodies were completed within 20 working days. The extent of delays in the wider public sector is not fully known as many authorities do not publish compliance statistics despite being advised to do so in a statutory code of practice under section 45 of FOIA. This makes it harder for requesters and the ICO to recognise consistently underperforming authorities, shielding them from pressure to improve. There is a backlog of FOI complaints at the ICO. At the end of June 2022, ICO FOI/EIR monthly summary data showed it had an active FOI caseload of 2223 complaints, of which 1425 (64%) were awaiting allocation to a case officer. FOI performance by public authorities varies considerably. It has also affected by the pandemic, due to the reallocation of resources to other areas, closure of premises and staff absences. As a result, some public authorities have backlogs of overdue requests. The ICO announced at the beginning of the pandemic that it would not penalise public authorities for failing to comply with FOI time limits as a result of Covid restrictions. Some under-performing public authorities have managed to significantly improve their FOI performance. Many of the measures used are not cost intensive. They include better tracking of requests, reminders to staff of approaching deadlines, closer monitoring of performance, the use of disclosure logs and proactive publication to publish information known to attract frequent requests and, crucially, the retention of experienced FOI staff and senior leadership. There is scope for sharing good practice more widely. The recent PACAC report on the FOI clearing house recommended “The Cabinet Office should drive a cultural shift from mere baseline compliance with the Freedom of Information Act to a greater advocacy for the core principles and tenets of the Act through proactive leadership across Government.”

How will the commitment contribute to solving the problem: The government should establish an information rights user group to discuss how FOIA is working and what can be done to improve compliance. The group could be chaired by a senior Cabinet Office official, and have a membership drawn from the Information Commissioner’s Office, civil society, the media and public sector. It should meet quarterly to consider how FOIA practice can be improved. Ministerial attendance at some meetings would be desirable but is not essential. This will open a channel of communication between key FOI stakeholders, promote better understanding of the issues that each face leading to more responsive use of and compliance with the Act. It will help to ensure any challenges in the system are discussed in an open and collaborative way. The user group will help engage the Cabinet Office, Information Commissioner and members in efforts to share FOI best practice across government and more widely. Bringing government, public authorities and civil society together in a regular forum will increase engagement in FOI policy and how the legislation is working in practice, as well as providing opportunities to advocate for greater transparency across Government.

Milestones Expected Outputs Expected Completion Date Stakeholders Commitment agreed Working group meetings Further milestones to follow from these meetings. August 2022 Lead: Eirian Walsh Atkins, Kevin Keith, Katherine Gundersen Supporting Stakeholders Government CSOs Others Cabinet Office CFOI MySociety Gavin Freeguard ICO