Council appeals enforcement notice issued by information watchdog over handling of FOI requests

Bristol City Council has appealed an enforcement notice issued by the Information Commissioner’s Office (ICO) earlier this year over the local authority’s backlog of freedom of information (FOI) requests, it has emerged.

The existence of the appeal was revealed in an ICO response to an FOI request submitted last month. 

Jon Baines, Senior Data Protection Specialist at law firm Mishcon de Reya, said on LinkedIn that it is thought to be the first ever appeal of an FOI enforcement notice to the First-Tier Tribunal.

In the March 2024 enforcement notice the ICO accused Bristol of being in continuing non-compliance with section 1(1) of the Freedom of Information Act 2000 (FOIA) and in continuing breach of section 10(1).

Section 1(1) states:

“(1) Any person making a request for information to a public authority is entitled –

(a) To be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) If that is the case, to have that information communicated to him.”

Section 10(1) meanwhile specifies:

“….a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following receipt.”

The watchdog claimed in the enforcement notice that Bristol “has consistently been one of the public authorities within the local government sector about which the Commissioner has received the most FOI complaints in recent years”.

It revealed that since 1 April 2023, the ICO had received 62 complaints about the council, many of which involved delays in responding to requests within the statutory time limit.

In response to these issues, in August 2023 the Commissioner issued a practice recommendation in which Bristol was advised to take specific steps to improve the timeliness of its responses to information requests. The council’s compliance rate was 56% for June 2023.

The recommendation called for the creation of an action plan incorporating any recovery plan – relating to the council’s backlog of FOIA requests – already in development.

In an update issued on 9 January 2024, Bristol said its timeliness rate had improved to 81% by November 2023. However, the council also admitted that it still had a backlog of 165 information requests.

The Commissioner then requested a copy of Bristol’s action plan to address the backlog, which the local authority provided in February 2024.

That action plan confirmed that:

  • The current FOIA backlog was 158 requests, the oldest of which was received on 17 January 2023. Of these 158 requests, 124 were received in the 2023 calendar year, and 34 were received between 1 January 2024 and 21 February 2024.
  • The council had calculated that it would take 39 months to clear the FOIA backlog.

The ICO’s enforcement notice said the Commissioner “notes that there has been no improvement in the FOIA backlog sine he issued a practice recommendation to the Council, on the contrary he notes that this is now higher than that cited in the Practice Recommendation (147 requests)”.

It added: “Furthermore, the suggested action plan would require over 3 years to clear the backlog and ensure that requesters receive responses to their FOIA requests; the Commissioner does not consider this timescale to be reasonable.”

The Commissioner concluded that it was a proportionate regulatory step to issue an enforcement notice to the council.

In the enforcement notice, the ICO required the city council, within six months, to:

  1. In respect of each information request where the response is outside of 20 working days as at the date of the notice, and where a permitted extension has not been applied, to comply with section 1(1)(a) of FOIA and, if information of the description specified in the request is held, either:
  2. communicate it pursuant to section 1(1)(b) FOIA; or issue a valid refusal notice under section 17 FOIA, unless section 17(6) FOIA applies.

The local authority was also required, within 35 days, to "devise and publish an action plan formalising the measures it will take to ensure it complies with its legal duties under Part 1 of FOIA to respond to information requests in a timely fashion, while also clearing its backlog of late requests as required by this notice".

The ICO also issued a reminder to Bristol that it should “continue to ensure that appropriate resources are available so that it meets the requirements of all information rights legislation to which it is subject”.

The watchdog’s response to last month’s FOI request confirmed that Bristol had provided an action plan but had appealed the enforcement notice.

The ICO declined to comment on the appeal. Bristol City Council said it would not comment on ongoing legal proceedings.

Harry Rodd