ICO criticises two Government departments over failures to respond to information access requests within statutory time limit

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 (BEIS), over what the watchdog described as “persistent failures” to respond to information access requests within the statutory time limit.

The watchdog said its action came under its renewed approach to regulating the Freedom of Information Act 2000 (FOIA), which commits to taking action against public authorities with consistently poor performance. The approach is set out in the ICO’s new FOI and Transparency Regulatory Manual and strategic plan, ICO25.

John Edwards, UK Information Commissioner, said: “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 is the ICO’s role to ensure that people’s right to access information is protected.

“I advise public authorities to take note and learn lessons from the action we have taken today, as we will be making greater use of our powers under the Act to drive good practice and compliance.”

The ICO said FOI statistics for central government showed that from January to March 2022 the Department for International Trade (DIT) issued late responses in over 50% of requests. This is a breach of both s1(1) and s10(1) of FOIA.

The statistics also showed that the Department 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 DIT 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 ICO said.

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 is also required to devise and publish an action plan formalising measures to mitigate any future delays. Failure to comply with the notice could lead to the DIT being found in contempt of court.

A DIT Spokesperson said: “We are fully committed to our transparency obligations and responded to over 500 FOI requests received last year. We continue to evaluate and improve our internal processes and will respond to the ICO in due course.”

In relation to BEIS, the ICO said the FOI statistics for central government showed the Department consistently failed to respond to a significant number of the information access requests received within the statutory time limit.

The statistics also showed BEIS had received a 55% increase in requests since 2020, unlike DIT which received relatively stable numbers of requests in a similar period.

“During discussions with BEIS the ICO found that the Department’s own internal procedures were the cause of many responses being delayed, in addition to the volume increases. BEIS 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 the proactive action it was taking to improve performance,” the ICO said.

The watchdog said that although it had concluded the Department’s practices did not conform to the Freedom of Information Code of Practice, it took into account the mitigations highlighted by BEIS and the positive engagement it had with the ICO. As a result, the ICO has issued BEIS with a practice recommendation, which is not enforceable, rather than an enforcement notice.

The practice recommendation sets out steps BEIS should take, including the development of an action plan detailing how it will improve its performance. The ICO said it also makes clear that this plan should be published, and that the Department should improve its processes “so that any internal consultation does not delay compliance with its legal obligations”.