The Public Administration and Constitutional Affairs Committee ("PACAC") has published its Report into the operation of the Cabinet Office Freedom of Information “Clearing House” - the body which coordinates responses to certain Freedom of Information (“FOI”) requests across Government.
The Report is highly critical of the lack of transparency regarding the Clearing House’s workings, noting that a 2006 report by a predecessor Commons Committee found many of the same issues which persist some fifteen years later.
These issues include:
- Poor FOI administration in the Cabinet Office and across Government;
- Unaccountable delays in responding to requests and responding to reviews of refusals;
- The fact that the Cabinet Office itself grants fewer requests and discloses less information than other Departments; and
- That the Cabinet Office is failing to work hard enough to promote FOI.
The Report notes that the Information Commissioner’s Office (ICO) last year invited the Cabinet Office to submit to an external audit by the ICO. The invitation was rejected in favour of an internal process whose terms of reference were finally announced yesterday, a day before the PACAC report was published.
The Report notes also that the ICO, whose role is to regulate, promote and enforce FOI, has undergone both a reduction in funding and an increase in workload over the years since the 2006 report. However, the Committee falls short of expressly calling for increased ICO funding, recommending instead that there be better accountability and budgetary responsibility within Government. This seems unlikely, even if implemented, to be taken as resounding support for an increase in the ICO's budget.
The Committee recognises the ICO’s role in the FOI regime and states that the ICO regulates compliance by issuing guidance, considering complaints under the legislation, issuing Decision Notices about whether a request has been dealt with in accordance with the law and by auditing compliance with the provisions of the legislation.
Other FOI enforcement options
The Report does not mention that the ICO has a range of powerful FOI enforcement powers available to it but that these are rarely, if ever, exercised.
These powers include:
- The serving of enforcement notices requiring steps to be taken (non-compliance with which constitutes contempt of court);
- The making of practice recommendations;
- The laying of reports before Parliament; and
- The seeking of powers of entry and inspection of public authorities by way of a warrant granted by a judge.
In the face of compliance failings of some public authorities, it is unclear where the PACAC Report will prompt the ICO to make more use of these powers.