Concerns About the ICO and FoIA

Our use of FoIA and dealings with the ICO have principally been about National Highways, formerly Highways England.  We believe National Highways are so compromised as to be ineffective, that the tail (contractors) wag the dog. The background to this can be read here.

It came as no surprise to read of National Highways involvement in corruption (Daily Mail 23/01/2022) ‘…papers also show that workers employed by the main contractor, Kier, for another scheme ‘manipulated’ tender processes, awarded a subcontract worth £1.4 million in breach of rules and that this was ‘influenced by bribery’ or that National Highways were (unsurprisingly) not the appropriate organisation to investigate their own misconduct, it also being reported the papers state: ‘Evidence found during this investigation supports the allegations made but is insufficient to identify individuals.’ – read more here.

National Highways were able to hide important information that would have protected Third Parties (drivers, fleets, hauliers or their insurers) who caused damage to the road network from gross overcharging, profiteering and in one respect fraud.  The ICO state that the Freedom of Information Act is unfit for purpose but what have they done about this and is the ICO competent? We sought the rates National Highways were charged for works to ensure these were, as is only right, applied to Third Parties.  The responses:

  • 2014 to 2018, HELD but commercially sensitive.  Supported by the ICO. When a Tribunal found for us:
  • 2019, NOT held.  Supported by the ICO. Then, following perseverance which saw the Authority change the charging methodology:
  • 2020 HELD (since 2015) and NOTcommercially sensitive, they were disclosed.

A mockery made of the FoIA and ICO.

It appears the FoIA plays second fiddle to the Data Protection Act, that FoI has been ignored and some Public Authorities have taken advantage of this. The ICO’s approach appears to differ between the legislation they oversee:

  • DPA – make headlines issuing large fines to private companies/individuals
  • FoIA – avoid issues with publicly funded organisations that have dedicated staff (some ex ICO) and will complicate matters, throw public monies at an issue but who ultimately know the worst that can happen is they will have to disclose some information.

It appears the above is the reason the ICO adopts a simplistic, superficial, formulaic approach to FoIA matters; they are treated in a sausage factory manner with little thought to the facts.  Seek a complainant’s account, ask the Authority to comment and make a decision – there is no time to go ‘to and fro’ to address anomalies. Most complaints are seemingly treated as uncomplicated, possibly even unworthy.  The complicated is not catered for, the process fails those with more complex issues.

02/12/2021, we presented a number of concerns to the ICO’s Andrew White, Head of FoI Complaints and received the customary dismissive response:

  1. The FoIA is no longer fit for purpose
  2. Internal Review time period – there is none legislated!
  3. ICO fails to monitor Authorities – contrary to what they state
  4. Section 77 – the withholding of information by an Authority
    1. ICO’s s77 ‘Team’, Failing to Investigate a ‘Continuing Offence’
    2. s77: ‘there is no statutory right to an investigation
  5. ‘Confession’ is Not a Standard of Proof
  6. Decision Notices (DN’s) – ‘Legal’ Documents – should they be?
    1. Lengthy documentation
    2. Balance of Probabilities
    3. Formulaic Approach
  7. Authority Explanations Accepted at Face Value
  8. Decision Notice – the end of the matter for the ICO?
  9. Poor Record Keeping
  10. ICO Withholding Information from a Requestor
  11. Only a Requestor Can Be ‘Vexatious’
    1. procedural impropriety
    2. ICO’s Lack of Respect for Tribunal Decisions
    3. Requestor prejudice
  12. ICO’s Failure to act on new information and address miscarriages; erroneous DN’s and Judgements
  13. ICO’s Lacklustre of a Complaints Process
  14. Gaming the FoIA – running rings around England’s lacklustre legislation.
  15. Failure to allocate adequate resources?  Complain to the ICO and then wait …. 9 months for the matter to be allocated!  An example of the notification you can expect to receive can be read here ICO to C case accepted 06.05.22, the ‘service standards’ can be read here Service Standards

Having raised the matters with the ICO, their response was:

If you wish to make representations for the Freedom of Information Act (2000) to be modified in any way, I recommend approaching your MP – the ICO is charged with applying the Act as Parliament directs, it is for government to effect any change that they may see fit.

and

The Commissioner does not have the legal authority* to alter or amend a DN once it has been issued. This power resides with the Tribunal and it’s (sic) own appellate bodies. All of your service complaints and appeals will be heard in accordance with our procedures and I will not circumvent these practices with further reviews.

In respect of representations on the efficacy of the Act, I am sure that the ICO will make representations to the appropriate bodies when opportunities present themselves or are asked to do so. Parliament has conducted a number of reviews of areas of the Freedom of Information Act (2000) through different reports and/or committee hearings over the years and the Commissioner’s views have been taken into account when the conclusions are formulated.

Andrew.White@ico.org.uk
Head of FoI Casework and Appeals
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF
T. 0330 414 6354

*Should the ICO have the legal authority to issues such notices given their superficial consideration of complaints?


20/12/2021 – what assistance can we expect from the ICO & GRC to address the miscarriages of justice