We have a new Information Commissioner, and she seems very exciting and hip. She keeps talking about how she wants to expand Freedom of Information laws to any group with a public contract. Which sounds great and everyone is excited.
I am not.
At the moment, trying to get information from a government department who is refusing to play ball is like drawing blood from a stone and the ICO are not helping.
If the system for getting information from the bits of the world that are already covered by the law is broken then expanding it is not only pointless, but likely to make the whole thing worse.
Ducks. In. Row. First.
Let me give you an example: I have now waited an extra forty days for the DfE to respond to a freedom of information request. Forty. That’s eight weeks. On top of the 20 days it takes to do the request (which was also late).
Imagine a kid not handing homework in and then being given an extra eight weeks to do it! Wouldn’t happen in my class. Detention would be almost immediate.
So why is the DfE able to get away with such behaviour?
Answer: Because the ICO seems to have no simple system for dealing with delays.
When you send an information request to the government the law says it has 20 working days to respond. After that point, the polite thing is to needle at them for a few days and, if still nothing, your only recourse is to go to the ICO where you can seek a ‘Section 10’ decision notice. A section 10 is effectively a formal letter to the government saying “you are out of time, you broke the law, don’t do that again, now hand the docus over”.
At the moment it is taking the ICO over thirty days to even reply to a complaint. And then they give the DfE a further ten days to respond. In my eyes this is the equivalent of those parents in the supermarket who weakly tell little Timmy not to eat the grapes, but who do it in such a lame voice you know that Timmy is going to swallow the entire vine as soon as their back is turned.
In my most recent case, the DfE did just that. Ten days came and went. No FOI. I like to imagine the department as a child gleefully skipping out the gates at 3pm as their teacher waits upstairs for them to appear in detention.
So I wrote to the ICO and pointed this out. And I called. And I have heard nothing.
All of which is ridiculous. Jesus beat the devil in 40 nights in the desert but apparently the organisation funded to protect our information rights can’t even censure the DfE for a blatant breaking of the law in this time.
Sigh.
So, Ms Denham, our new information commission overlord. PLEASE: I beg, implore, beseech you to come up with a new process for dealing with delays so that this rigmarole can stop.
In fact: I already have one.
When someone complains to the ICO they must fill in a form which asks what the problem is. If a complainant ticks the ‘no one is responding to me’ box, put that into a fast-track system.
This system would involve a person checking, quickly, if the request is, in fact, delayed. This should take, oooh, 3 hours? At most? If the answer is ‘yes’ then, immediately, write a Section 10 decision notice and send it to the government department telling them to get their arse into gear and respond within 5 days. Not 10. FIVE. And no ‘pre-warning’ faffy nonsense emails. Send the decision notice. JOB DONE.
Five days later do a simple check with the department. “Hi, did you send it yet? … Yes, great!” Or, “No… UHOH”and immediately give them some kind of serious notice.
If a public authorities get, say, three of these serious notices in three months then BOOM, put them on monitoring. Require them to fill in compliance documents. Insist on having long boring meetings about their record-keeping. Ask to see copies of all their request response. Make them uncomfortable with the sheer number of checks you will do on them.
Ultimately: Make their life harder than it would be if they just responded ON TIME and AS THE LAW SAYS THEY SHOULD.
Seriously, this is how consequences work. Watch any good teacher. Watch Supernanny! Getting people to do things they don’t want to do is largely about having quick, effective systems followed by quick sanctions that are less pleasant than doing the right thing the first time around.
Ducks. In. Row. First. Please.
Once that’s done, then the law can expand to cover all those other public authorities. And I will be up there with everyone else giving a big cheer.
Slight problem. No one cares anymore. If the NHS can blithely ignore ombudsman critical verdicts – leading to more deaths – what makes you think any organisation cares a hoot for the ICO’s Tinytears threats?
Because, as with the NHS, it’s cheaper to ignore than comply.
Completely agree with your remedy. But just to add a different dimension – it wouldn’t matter if the the ICO handed down warnings and penalties because the DfE is at the moment too shambolic to comply.
Part of my job involves making s77 applications for SoS agreement to build on school playing field land. Sometimes this involves a 200m2 school buildings, sometimes it’s merely a 12m2 extension. Regardless the DfE make no commitment to processing applications in a certain time scale, so it can take anywhere between 3 to 6 months to get consent. It took a month to register our latest application because, we were told the department within the DfE responsible is on its third reorganisation of the year. Bear in mind that serious sums of public money rests in school building work and delays mean higher risk and higher cost.
To me this indicates, among other things, that the DfE is being poorly managed. And that your FOI request is potentially being mismanaged not out of a desire to subvert the law, but out of sheer inability of DfE civil servants (who in my experience work their hardest to to do their best) to get through their humongous workload.
It seems that this is a common problem. I have been waiting for eight months now for a satisfactory resolution to my appeal against non disclosure of information by the DfE, despite the intervention of the ICO.
All common sense. However ICO has no power to require anything to be done in 5 days via a decision notice. Because of s50(6) and Reg 22 of the Tribunal procedure rules the minimum is 28 calendar days – which I agree is a bit farcical when the s10 requirement is 20 working days.
Helpful information.
So there’s a catch-22 where it’s preferable for the ICO to try and resolve quickly, without a DN, by giving a warning (of 5 days), and then slap with a DN for 28. But I’d start making life much more difficult once a DN is issued, in order to make it worth a department’s while to answer the request in the pre-DN period.