FOI appeals revamp would just move, not solve, backlog problem

"The Commissioner has gone on the record as saying that 'too many decision notices are produced to a gold standard with 11 pages of legal argument that would survive a prolonged case in the European Court of Human Rights'," said information law specialist Dr Chris Pounder of Amberhawk Training.

Pounder wrote in his blog that the Commissioner favours the use of a 'quickie' decision notice in some cases.

"The problem with this approach is that such a move could result in longer delays," he wrote. "For example, if a public authority or individual were to be on the receiving end of a 'quickie Decision Notice', then the likelihood of appeal to the Tribunal would in my view increase. This appeal would partly be on the grounds that the 'quickie' analysis underpinning the Decision Notice had not been thorough, and a mistake had been made."

If someone makes a request for information under the FOI Act that is rejected they can appeal that rejection to the Information Commissioner's Office (ICO).

The delays in processing these appeals has attracted criticism and concern. The Campaign for Freedom of Information released a study last year which analysed 500 ICO decisions and said that the average time between a complaint being made and a decision being published was 19 months. It took between one and two years for a decision to be made in 46% of cases, it found.

That report said that on average ICO investigations did not even begin for eight months. It took 22 months for one investigation to begin, it said.

“A delay of 2 to 3 years or more in reaching a decision, as happens in over a quarter of cases, means that even if the information is ultimately disclosed it may no longer be of interest or use to the requester," said report authors Maurice Frankel and Katherine Gundersen at the time.

"Requesters who experience such delays may be so frustrated by the experience that they become reluctant to use the Act again or to complain to the ICO about refusals. Delays may also mean that authorities carry on repeating mistakes over long periods, affecting many requests, before the ICO puts them right," they said.

But Pounder said that the ICO's proposed solution to process some cases more quickly and less thoroughly than before would be unlikely to improve the overall picture. In fact, he wrote, it would just move the bottleneck from one place to another.

"The queue for a Decision Notice from the Commissioner could become less (three cheers) but the queue of appeals at [appeals body the Information] Tribunal would lengthen," he wrote. "The result could be more expense and delay as what has effectively happened is that the queue that causes the delay is transferred from the Commissioner to the Tribunal."

The ICO has long called for greater resources to allow it to deal with the massive administrative burden that it says FOI legislation has put on it. Pounder believes that this might be the only real solution to the backlog problem.

"What I think is needed is not a quickie Decision Notice but rather a well supported regulator. The Government funding of a paltry £5.5 million per year for the whole of FOI is clearly inadequate for an important law that, by allowing access to information on public policy, engages individuals with the democratic process," he wrote.

Amberhawk Consulting is running a series of data protection training courses in London, Manchester and Edinburgh.