FOI failings at the heart of government

Some major government departments have a record of frequent and persistent delays and unhelpfulness in their handling of Freedom of Information (FOI) requests.

This is clear from a new BBC analysis of decisions issued in the past two years by the Information Commissioner's Office which has repeatedly condemned the Cabinet Office, Home Office and Ministry of Justice for their "poor", "disappointing" and "unacceptable" treatment of FOI applications.

And it raises questions about whether the Information Commissioner, Elizabeth Denham, is taking a tough enough approach to enforcing the law on these important departments at the heart of government, beyond criticising their processes in individual complaints.

Information obtained by the BBC from the Information Commissioner's Office also shows that the Cabinet Office and the Home Office are the two public authorities in the country with the worst record of failure on timely cooperation with the commissioner's investigations.

The Information Commissioner's Office has the legal power to issue "information notices" against public bodies which are failing to provide material needed to assess complaints against them. Since May 2015 it has issued these formal notices in 50 completed cases. Fifteen were against the Cabinet Office and 11 the Home Office. So the two departments accounted for more than half these measures against particularly uncooperative public authorities.

Puzzlement

As the department responsible both for FOI policy and for civil service efficiency, the Cabinet Office should surely be setting a good example to the rest of Whitehall. However over the past two years it has faced some stinging criticism from the information commissioner due to its persistently slow and unsatisfactory handling of information requests.

The commissioner's rulings express disappointment, concern and puzzlement at the Cabinet Office's behaviour.

In dozens of instances the commissioner has condemned the Cabinet Office's slow responses. In various different cases the Information Commissioner's Office has described Cabinet Office delays as "unacceptable", "extremely unhelpful", "extreme", "protracted", "considerable", "notable", "unreasonable", "unsatisfactory", "excessive", "prolonged" and "severe".

In one case involving files on the UK's historical relations with India, the Information Commissioner's Office decision accused the Cabinet Office of "obvious unfairness" to the requester. The Cabinet Office transferred most of the information requested to the National Archives after the applicant asked for an internal review, so it no longer held the material. The Information Commissioner's Office described the Cabinet Office's behaviour as "extremely unsatisfactory".

Information Commissioner Elizabeth Denham

In another historical case involving the 1963 Profumo affair, the Information Commissioner's Office ruling said: "Taking such an inordinate amount of time to complete an internal review goes completely against the spirit of the FOIA [Freedom of Information Act], and in the commissioner's view, is tantamount to denying an applicant their information access rights."

The Information Commissioner's Office decision in a further case stated that "the commissioner is concerned at the extremely lengthy delay", adding "although the commissioner cannot conceive of any justification for such a lengthy delay, she notes that the public authority has not even sought to provide one and that is also extremely concerning."

'Unhelpful'

These criticisms are accompanied by the commissioner frequently telling the Cabinet Office to improve its processes, urging it to act "more promptly", handle requests "appropriately" and in line with "expected standards", to make "greater efforts to provide useful and meaningful advice to requesters", and to "take greater care".

The Home Office has also been subject to repeated criticism from the commissioner in the past two years.

In a case relating to a particular car crash with disputed circumstances, the commissioner was concerned by "the very poor handling of this request by the Home Office", adding that "clearly it should not have been necessary for the complainant to repeatedly contact the Home Office in order to secure a response" and that the initial response and internal review were both "unhelpful".

In a case involving the violent and sex offenders' register, the Information Commissioner's Office ruling stated that "the commissioner regards a delay of close to 14 months in responding to a request as unacceptable in any circumstances".

'Obviously deficient'

A ruling on a case about asylum seeker statistics stated: "The commissioner is very disappointed that it took over a year for an internal review to be completed, which essentially reached the same conclusion as that reached at refusal notice stage, and added very little by way of further reasoning."

In various further cases the Home Office was criticised for "obviously deficient reasoning", "poor customer service", "a poor level of engagement", producing an internal review "of no value", and providing a "poor initial explanation", while in others it "misread one part of the request" and "could have done much more to assist the complainant".

And in a range of rulings the Home Office was condemned for delays which were "unreasonable", "considerable", "very severe", "lengthy", "significantly excessive", "clearly excessive" and "far too long".

The pattern of delay at the Home Office is so extreme that extraordinarily in 50 cases adjudicated by the Information Commissioner's Office in the past two years, the department simply failed to provide the requester with a substantive response at all before the commissioner intervened.

The Ministry of Justice has a record on this which is nearly as bad, failing to respond in over 30 cases from the past two years until the commissioner was involved.

'Inaccurate and misleading'

And in a series of rulings affecting the MoJ in these two years, the Information Commissioner's Office has also often accused it of delays and shortcomings.

In one case to do with civil restraint orders, the Information Commissioner's Office decision said that "the commissioner is very disappointed with the MoJ's handling of this request", adding that the information provided by the Ministry of Justice was "inaccurate and misleading" and this was "clearly unacceptable".

In other different cases the Information Commissioner's Office reported that the Ministry gave an "incorrect figure" to a requester, failed to make "adequate searches" or "relevant searches" for information, was responsible for "lengthy delays" and "significant delay", was guilty of "poor engagement" with the Information Commissioner's Office investigation, produced submissions which were "generic" or did not provide "the required level of detail or evidence", and failed to ensure that a request was "properly considered".

These concerns are not about disputes on the principles of whether information should be disclosed or not, where the arguments can be finely judged and the commissioner sometimes backs and sometimes overrules the department - this is to do with basic administrative processes.

Last month the Chair of the National Association of Data Protection and FOI Officers, Jon Baines, drew attention to some recent delays at the Home Office and MoJ, and complained about the Information Commissioner's Office's failure to take stronger action against "authorities who seem to ignore their legal duties much of the time".

'Flouting of the law'

Mr Baines explains: "I was struck by how often these particular departments appeared to be simply ignoring the ICO with apparent impunity. I know FOI officers at other public authorities who work their socks off to make sure their organisations comply with the law, and I wanted to question why there seems to be one rule for some authorities and another rule for these government departments."

Maurice Frankel of the Campaign for Freedom of Information urges the Information Commissioner's Office to go further: "These departments obviously consider themselves too important to be accountable to the public and are just ignoring the FOI Act. This is not hard pressed FOI officers struggling to meet deadlines, it looks like deliberate flouting of the law."

Mr Frankel adds: "The commissioner can stop this at a stroke. She can issue enforcement notices which will expose officials or ministers to the risk of fines or even imprisonment if they don't comply. The commissioner needs to start taking action."

The Information Commissioner's Office has been criticised in the past and sometimes ridiculed by those who feel that for political reasons it fails to take a tough enough stance, deploying its full range of legal powers, over the Cabinet Office's failings. In 2015 the then deputy commissioner Graham Smith told the ICO press office not to publicise enforcement action against the Department of Finance and Personnel in Northern Ireland, because publicity would "provoke more questions and comment about lack of action against others, notably the Cabinet Office".

Delays and failings

The Information Commissioner's Office states it will be meeting the Home Office and the MoJ to discuss overdue cases. A spokesperson says: "We constantly review the FOI performance of public authorities across the UK and take action, including formal monitoring, where improvements are necessary. FOI law applies in the same way for all public authorities, regardless of size or profile."

Other government departments are also guilty of delays and failings, but it seems clear that these three have particular problems.

Responding on behalf of the three departments, a Cabinet Office spokesperson said: "This government is committed to freedom of information and we are publishing more data than ever before, on everything from ministerial meetings to the money we spend. With increasing transparency the requests we receive under FOI ask for more and more complex information. We must balance the public need to make information available and to protect sensitive information."

As a declaration of interest I should state that I and BBC colleagues have made FOI requests to these departments which have been badly affected by delays.

Research by George Greenwood