Having, on many occasions, been forced to FoIA to obtain information from National Highways, formerly Highways England, we have encountered many problems that may be of interest/concern to others. Our preferred method of making FoIA enquiries is by use of the WhatDoTheyKnow web site:
The ICO appears to have ignored the Freedom of Information Act 2000, allowed it to become outdated, ineffective. Possibly a reason for this is that data protection has seen amendment following GDPR and grabs headlines; commonly private companies that breach DPA are subject to substantial fines giving the impression of an effective Commissioner.
Conversely, FoIA sees the ICO, also a Public Authority, engaging with other Public Authorities … there are no financial penalties but orders to release information that may give rise to embarrassment, investigation or financial claims that do not involve the commissioner. These Public Authorities employ staff to ‘manage’ FoIA requests some become adept at superficial replies or obstruction – there is little if any deterrent. Authorities are familiar with the superficial consideration of ‘overworked’ ICO staff, the Commissioner’s formulaic approach to the Act.
As an example of how the FoIA has been ignored by the ICO, one need only look to the Commissioner’s acknowledged failing of the legislation insofar as an Authority’s use of sub-contractor’s is concerned. A Public Authority, such as National Highways, places much of its activities with private companies, contractors. Not all aspects of the work these private businesses undertake are obviously caught by the FoIA and whilst the ICO has known of this for years, the issue has not been addressed. The ICO is aware FoIA legislation has become diluted.
Indeed, we have been taking issue with sub-contractors since 2014 and despite the ICO bleating about the amount of work this has generated (due to a vexatious Authority) no amendment to the Act has occurred. Is this intentional? A lacklustre piece of legislation appears to provide the ICO with a means by which to avoid action – why bother if action is likely to fail?
But is information ‘held on behalf of’ an Authority by a sub-contractor who steps into the shoes of the Authority; why would it not be? An example of a request that has seen the ICO support is can be followed here:
- 01/07/2020 The Request
- 16/08/2021 Decision Notice IC-48280-N2N3
- The legal framework
- University of Newcastle upon Tyne v IC and BUAV  UKUT 185 (AAC) (“BUAV”)
- Department for Health v IC and Lewis  UKUT 159 (AAC)
- Visser v IC and Southwark Borough Council (EA/2012/0125) (“Visser”)
- Ryan v IC and Wye Valley Trust (EA/2016/0125)
- The White Paper that preceded FOIA
- 190128 ICO Report ‘Outsourcing Oversight: The case for reforming access to information law‘
- ICO’s Guidance on Outsourcing and Freedom of Information