Judge rejects latest bid by Information Commissioner to have appeal by council over FOI enforcement notice struck out

The Information Commissioner has failed in a second bid to have an appeal by Bristol City Council over an enforcement notice struck out, it has emerged.

The dispute arose after the Commissioner received multiple complaints about the council’s failure to comply with the statutory timescale for responding to freedom of information requests.

After informal engagement, the ICO issued the council with a practice recommendation in August 2023.

However, the watchdog considered that Bristol had failed to comply with the terms of that recommendation and in March this year issued the disputed enforcement notice.

The council appealed. The Information Commissioner then requested that the appeal be struck out on the basis that the enforcement notice was in accordance with the law and the appeal therefore had no reasonable prospect of success.

Bristol opposed the application, stating that it did not rely on section 58(1)(a) of the Freedom of Information Act 2000, but instead relied on section 58(1)(b), i.e. that the Commissioner ought to have exercised discretion differently and accordingly, it could not be said that the appeal had no reasonable prospect of success.

The Commissioner's application was refused by a judge on the basis that the decision as to whether or not the Commissioner ought to have exercised his discretion differently should be taken on the basis of a full consideration of the evidence, without which it was not possible to determine that the appeal had no reasonable prospect of success.

On 31 October the Information Commissioner made a further application for strike out, this time on the basis that the council had failed to comply with directions made on 5 October 2024, specifically the requirement to provide a draft index, and because the appeal had no reasonable prospect of success.

Tribunal Judge Swaney said the basis on which the Commissioner now contended that the appeal had no reasonable prospect of success was that Bristol had provided a copy of its action plan as required by the enforcement notice, which included details as to how the Ccouncil would reduce its backlog, and the appeal was therefore academic.

Bristol again opposed the application for strike out, providing evidence that a draft index was in fact served on 18 October 2024 in accordance with directions, together with copies of the relevant documents. The council advised that pagination would be added once the Commissioner had confirmed whether he had any documents to add to the bundle and the index would also be revised accordingly.

Tribunal Judge Swaney found that the council had complied with the direction to provide a draft index. He therefore declined to strike out the appeal pursuant to rule 8(3)(a) of the Procedure Rules.

Turning to the Information Commissioner's second ground for seeking strike out, the judge noted that the judge who previously refused to strike out the appeal was aware that the council had provided a copy of its action plan and refused strike out in that knowledge.

Tribunal Judge Swaney said: “The council's case is that the Commissioner ought to have exercised discretion differently and that the enforcement notice ought not to have been issued at all. Nothing in the Commissioner's application of 31 October 2024 demonstrates that the appeal has no reasonable prospect of success. I refuse to strike the appeal out pursuant to rule 8(3)(c).”

Judge Swaney gave a case management direction that the appeal be decided without a hearing on a date after 26 November 2024.