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 website:
The ICO appears to have ignored the Freedom of Information Act 2000, which allowed it to become outdated, ineffective. Possibly a reason for this is that data protection has seen amendments 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, 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 ICO. These Public Authorities employ staff to ‘manage’ FoIA requests some become adept at superficial replies or obstruction – the Cabinet Office’s ‘Clearing House’ is ’cause for concern‘. The ICO presents little, if any, deterrent. Authorities are familiar with the superficial consideration of ‘overworked’ ICO staff, the Commissioner’s formulaic approach to the Act.
- To search ICO FoIA Decision Notices (DN’s) – click here
- For a list of our current concerns, click here.
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-contractors 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. Is this intentional? A lackluster 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 us can be followed here, subject to appeal by National Highways (EA/2021/0257):
- 01/07/2020 The Request
- 16/08/2021 Decision Notice IC-48280-N2N3
- The legal framework
- The 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
17/12/2021, the ICO’s Legal Framework (as above) issued in respect of EA/2021/0257 – NH v ICO and Swift EA20210257 – Commissioners Response 17122021
21/12/2021 Appellant’s submission in support of Kier holding information on behalf of National Highways – 211221 2nd Respondents Response re Kier Area 9 HoBO NH
Following our 21/12/2021submission, the Authority capitulated. Information is to be provided on or before 07/02/2022. It remains to be seen what is supplied.
The ICO’s Decision Notice appears to mark an intention to ensure Authorities cannot hide information with sub-contractors, private companies are not subject to the FoIA. However, the one step forward (above) has subsequently been undermined by a Decision Notice contradicting the above – ICO Reference Decision Notice IC-84355-N0N7. The lack of consistency comes as no surprise. This latter matter is the subject of Appeal EA/2021/0297 – our initial response can be read here.