Writing in a blog post, Terna Waya, Senior Upstream Regulation Officer, and Ribia Nisa, Team Manager, Public Advice and Data Protection Complaints Services, said the ICO had seen the "biggest impact" on managing and responding to information requests in councils that have issued section 114 notices.
"We've spoken to a number of local authorities that have issued a section 114 notice about the impact it had on their request volumes and ability to respond within the legal timeframes", they said.
According to the ICO, councils that have issued a section 114 typically come under great publicity, which in turn leads to higher than usual request volumes.
Waya and Nisa added: "We know that this can be a very stressful time for everyone working in a local authority, but it is important to recognise that providing access to information under data protection legislation (including Subject Access Requests, or SARs), the Freedom of Information (FOI) Act and other associated legislation is a legal obligation and a core task that local authorities must continue to perform.
"While we consider a section 114 notice to be a mitigating factor, we can still take regulatory action if you don't comply with your obligations."
The post set out the following tips for meeting statutory obligations while struggling with resources:
- Manage your records: Keep your filing system in order so less resource is required to comply with requests. Review your retention policy and securely dispose of any documents that are out of date. Auto retention periods for applications such as Outlook, Teams and casework management can be helpful but must be used responsibly and should not be used to reduce the information that might fall within the scope of a request.
- Anticipate request volumes: Your performance report to senior management on compliance should include an estimate of any anticipated increase in the volume of open requests as a result of the section 114 notice. Our FOI compliance data collection template and our data sharing and subject access checklist can help with this. Factor in the impact if your request handling services are going to be brought in-house from a third-party. This should help inform decisions on the reallocation of resources and prevent building a backlog of requests.
- Internal communication: This is key to get colleagues on board and define processes that work for all. Have an open conversation with departments to find the best way forward when dealing with large volumes of information requests that may relate to a particular area, for example litigation. It’s useful to establish ownership of the requests so that they are not missed.
- Litigation claims and third party requests: SAR requests relating to litigation claims are usually received from a third party such as solicitors acting on behalf of the customer and are usually included in the letter of claim. You must respond to these requests, however, we recommend liaising with the solicitors to determine whether a full response is required as in many cases the data will be disclosed as part of the litigation disclosure process. If data is still required, it might be useful to establish scope and timescale for the response. Consider working with the department to determine what data has already been disclosed, and speak with the third party or the customer to determine if further data is required.
- Be open and transparent: Let your customers know about the challenges you’re facing as soon as possible. Be clear and specific about the steps you’re taking to mitigate the impact on access to information. Set out a realistic timeline for when they can expect a response and offer practical alternative options wherever possible to reduce delays in providing a response.
- Consider sharing life stories with customers: Life stories are created by social workers for children in care to document their journey and can be provided to the child when they leave care. They are a good way to proactively share information and can prevent the need for a SAR or help to reduce the volume of information that the person needs to ask for.
- Understand customers’ information needs: Consider speaking to customers to understand their information needs. You could agree reasonable searches with them to narrow down their request and deploy your resources efficiently.
- Be proactive about publication: Proactively publish information about your business-as-usual activities - our model publication scheme is a good place to start. You could also publish information on emerging FOI hot topics and to help you get started we’ve pulled together some suggestions. Consider developing user-friendly platforms for users to ‘self-serve’ when accessing information you’ve published.
- Share the ICO’s open letter to senior leaders: Share the Information Commissioner’s open letter with your senior management on how leadership can drive transparency and FOI compliance. It includes some useful case studies and simple steps senior leaders can take to support FOI practice.
- Training: Use our Training videos to support wider training for your staff.
The ICO added that any council that is still struggling should get in touch "as soon as possible" for further help.
Adam Carey