Freedom of Information: Opinion

The FOI system is utterly broken. Here’s how to fix it

Requests for government information are delayed to the extent of rendering them pointless. This only serves politicians in getting off the hook

Jenna Corderoy
Jenna Corderoy
27 October 2021, 12.00am
The Cabinet Office is stalling on FOI requests
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Image Professionals GmbH / Alamy Stock Photo

I’m sitting at my computer, reading the latest email from the information watchdog. I let out a long sigh. I’ve been waiting a whole year for a response to my complaint, but this email just tells me to carry on waiting.

As a journalist, I use the Freedom of Information Act all the time to uncover information and hold the government to account. But when the government refuses to comply, I’m utterly powerless.

I send off complaints to the Information Commissioner’s Office (ICO), which is meant to enforce transparency laws, but it has become toothless and overburdened. So all I can do now is wait, and hope.

This particular FOI request should have been relatively straightforward – ironically asking for copies of internal emails that discuss government transparency. But after I sent the FOI in March 2020, the Cabinet Office took six months to reply before rejecting it. So now I’m waiting for the ICO watchdog to intervene.

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I can’t help but feel the ICO caseworker is also frustrated. Their email says: “The allocation process for complaints received by the ICO has (and continues to be) subject to significant delays, which are longer than usual.”

Complaints about FOI requests like this – which are urgent and of high public interest – are getting stuck in this system. After filing a complaint with the ICO, requesters have to wait for months on end just to be assigned a caseworker.

A regulator with no bite

Right now, I’m waiting for the ICO to respond to several different complaints, all of which have stretched on for ages. These include important questions about the government’s COVID contracts and the secretive ‘VIP lane’. How much longer before we’re allowed to get some answers? Most likely, not until next year.

This is only good for politicians. When these requests get stuck in the system because the ICO can’t process complaints in a timely fashion, they lose their newsworthiness. The sting of a potential disclosure with severe political repercussions is watered down.

But even when the watchdog finally springs into action, there’s a lack of engagement from government departments, as we reported earlier this year.

This essential regulator just doesn’t have any teeth. Government departments know this, and take full advantage of it. There are hardly any repercussions when government departments ignore requesters – or even the ICO itself.

The failure to deal with these issues has created a big transparency crisis in the UK. As revealed in openDemocracy’s new report, ‘Access Denied’, 2020 was the worst year on record for freedom of information. Only 41% of requests to the government were granted in full last year, which is the lowest proportion since records began in 2005.

The report also highlights how the number of public authorities found guilty by the ICO of stonewalling – the act of not responding to a requester – has increased from 51 to 116 in the last five years.

FOI caseworkers are struggling, like the one who is currently dealing with my complaint. In 2020-21, the ICO’s casework team finished only 4,000 complaints – the lowest number in more than a decade. This means that its backlog of unfinished casework grew by 56% to 1,911 complaints.

The number of cases that took longer than six months to resolve increased by more than 100%. And the ICO took no enforcement action against any central government departments.

The new commissioner must find better ways of reprimanding public authorities that stonewall FOI requesters or cause excessive delays

The ICO seems more and more obsessed with its other duty of enforcing data protection. But FOI doesn’t get a look in. In fact, its budget for FOI work has shrunk. In fresh analysis, openDemocracy has found that, in real terms, the ICO’s FOI budget has shrunk by 29% over the past ten years – while its workload has grown.

The FOI crisis is becoming increasingly urgent, and the incoming information commissioner, John Edwards, must recognise this.

However, there is concern that he may take the opposite approach. He has already suggested that the government could charge people fees for requesting official information and claimed that some people were “abusing” the system.

But as we say in our new report, Edwards must take a more proactive stance. He must think of better ways of measuring, monitoring and reprimanding public authorities that stonewall requesters or cause excessive delays. And he must reprimand authorities if they refuse to properly engage with the ICO’s inquiries when conducting investigations.

The ICO must also be more transparent about its own processes and publish updates of its monitoring and enforcement activities. It should name and shame these authorities for the world to see. And it must use the powers it does have, such as the issuing of enforcement notices, to order authorities to respond to overdue requests immediately.

A requester, like me, simply cannot wait months and months on end for a toothless regulator to process a complaint. As a journalist, I can’t wait that long to access vital information for my reporting. And as a nation, we can’t simply sit back and allow transparency in public bodies to be slowly stifled to death.

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