openDemocracyUK: Opinion

UK’s transparency watchdog has a terrible transparency record of its own

The Information Commissioner’s Office, headed by Elizabeth Denham until last month, is failing to stick to its own rule book

Jon Baines
3 December 2021, 2.20pm
Like the government, the Information Commissioner’s Office has a shoddy track record on FOI
Alamy Stock Photo

In a damning intervention last week, the UK’s former information commissioner condemned the government’s record on transparency.

Elizabeth Denham told MPs she was “frustrated and disappointed” when the Cabinet Office refused her offer to review how it handles Freedom of Information (FOI) requests.

She said the move had “increased suspicion” about government secrecy, following an openDemocracy tribunal victory against the Cabinet Office.

Denham – who left office at the end of November after five years in the role – made a compelling argument, rightly pointing out that ministers are not “walking the talk when it comes to the importance of FOI”.

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But it is hard to square her words with the fact that her own office appears to be in a similar state of chaos.

The Information Commissioner's Office (ICO) is subject to the same FOI laws that it regulates. But, just like the government, its track record is shoddy, with countless delayed responses – some of which are delayed by more than a year and, in one case, by more than two years.

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The law says that public authorities must respond to FOI requests within 20 working days. In written evidence to MPs investigating government secrecy, the ICO said: “The commissioner would not consider delays of between three to six months reasonable.” Adding: “These excessive delays are not rare in Cabinet Office cases seen by the ICO.”

Yet figures obtained from the ICO show that it is guilty of the exact same thing. In the 12 months until November this year, the watchdog had failed to respond to 93 FOI requests within three months.

Twenty-one of these were ongoing requests, which had still not been responded to. In five cases, the requests were more than a year old, while one had been knocking around for 952 days. The ICO says that some of these have now finally been cleared.

In any other public authority this would be cause for enforcement action, but not, it seems, when it comes to the ICO policing itself. This is despite its own policy saying that enforcement action will happen where “authorities repeatedly or seriously fail to meet the requirements of the legislation”.

On the ICO’s statutory duty to “promote the following of good practice”, it is clear that it is failing.

In the 12 months to November this year, the ICO failed to respond to 93 FOI requests on time

It is true that the ICO has limited resources. When she spoke to MPs last week, Denham said the budget for its work policing FOIs across other organisations had reduced from £5.5m in 2010, to just £3.75m now.

But we have not heard the same level of criticism from Denham about the ICO’s budget for dealing with its own FOI responses.

In any case, it is difficult to avoid a conclusion that, under Denham's tenure, the ICO took its eye off the ball when it comes to FOI. Its long-term strategic reports – such as the Information Rights Strategic Plan of 2017 and the Regulatory Action Policy of 2018 – focus far more on data protection regulation than FOI. Indeed, Denham's valedictory speech, made on 26 November, contained not a single reference to FOI. So perhaps it is unsurprising that extra government funding for the work has not been forthcoming.

When MPs asked about the idea of setting up a new regulator to deal with FOI, Denham rejected it. With painful irony, she said: “Those at the top of public bodies have a huge influence on whether or not their staff embrace the spirit of transparency in their work.”

Let us hope that her successor, John Edwards, will address the office’s own shocking compliance with FOI – the very laws it is meant to promote.

openDemocracy approached the ICO for comment and was told that it now has an action in place to tackle the backlog in FOI requests.

Jon Baines is the chair of the National Association of Data Protection and Freedom of Information Officers.

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