Birmingham and two government departments face regulatory action over FOI delays

Birmingham City Council, the Cabinet Office and the Ministry of Defence face regulatory action from the Information Commissioner’s Office for failing to meet a requirement to reduce the time they take to respond to FOI requests.

The ICO said it had particular concerns about the three organisations after the end of a three-month period where it monitored the performance of 33 public authorities. “Discussions on appropriate regulatory action are now taking place,” the watchdog added.

A spokeswoman for the ICO said it could not yet say what form that action will take. The strongest regulatory option available to the watchdog for systemic or repeated non-compliance is to serve an enforcement notice on the organisation, requiring it to take certain specified steps in order to ensure it complies with the Freedom of Information Act. A subsequent failure to comply with that notice could in turn lead to a referral to the High Court, which can deal with the public authority as if it had committed contempt of court.

Alternatively, the ICO could require the authority to sign an undertaking agreeing to a particular course of action to ensure compliance.

The ICO also said today (12 April) that four other local authorities on the original list – the London Borough of Hammersmith and Fulham, the London Borough of Islington, Wolverhampton City Council and Westminster City Council – had been asked to sign undertakings to improve their performance.

No action will be taken against the remaining 26 authorities that were named. However, the ICO said it had sent letters to the Home Office, the Metropolitan Police, NHS North West, the London Borough of Croydon, the Scotland Office and the London Borough of Newham “to put on record that, while all of them are now meeting the required standard, the monitoring has revealed some areas of concern”.

The Information Commissioner, Christopher Graham, said he was pleased that more than two thirds of the authorities whose performance the ICO had been monitoring had managed to overcome their problems.

“However, the remaining authorities have not done enough to convince us that they have a clear and credible plan for getting back on track,” he added. “Over the next four weeks, we shall be discussing appropriate next steps with them.”

The ICO has published another list of 18 organisations that it plans to monitor from 1 April to 30 June 2011. The 11 local authorities named are: Barnsley Metropolitan Council; Cornwall Council; Kent County Council; Kirklees Council; the London Borough of Southwark; North East Lincolnshire Council; North Somerset Council; Nottingham City Council, the Royal Borough of Kingston upon Thames; Surrey County Council; and Waveney District Council.

The seven other public bodies on the list are: City of London Police; the Department for Education; East Lancashire NHS Trust; the Equality and Human Rights Commission; the Highways Agency; NHS South West London; and Surrey Police.

The ICO said the 18 organisations were placed on the list for hitting one or more of the following performance markers:

• “the ICO has received six or more complaints concerning delay within a six month period
• it appears that an authority has exceeded the time for compliance by a significant margin on one occasion or more
• for authorities that publish data on timeliness, it appears that less than 85% of requests are responded to within the appropriate timescales.”

Christopher Graham said: “Responding promptly to FOI requests is key to delivering citizens’ rights. Too many public authorities are taking too long to decide either way whether to release information or to refuse requests.”

In an interview with Local Government Lawyer last month, Deputy Information Commissioner Graham Smith suggested that delay was “the biggest issue still” in freedom of information, although he acknowledged that some improvements were being seen.

Philip Hoult