In March 2021, a solicitor by the name of Tobias Haynes contacted the Home Office pursuant to the Freedom of Information Act 2000 (FOI) seeking its submission to the Independent Review of Administrative Law.
The FOI provides that:
“Any person making a request for information to a public authority is entitled—
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.”
The Home Office refused to respond to the request, relying upon s.35 FOI, which states:
“Information held by a Government department…is exempt information if it relates to—
(a) the formulation or development of Government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any request for the provision of such advice, or
(d) the operation of any Ministerial private office.”
Mr Haynes complained to the Information Commissioner’s Office (ICO), the body responsible for enforcing legislation in respect of information and data such as the FOI and Data Protection Act 2018, about the alleged failure by the Home Office to comply with the requirements of the FOI. In response to the complaint, the Home Office referred to s.35 and claimed that disclosure of the information would limit free and frank discussions between ministers and other Government officials in respect of public policy.
Remarkably, the ICO took an extremely long time to investigate and respond to the complaint (some 17 months!). As for justification for such a long delay, the ICO relied on issues regarding capacity due to the pandemic, increased receipt of FOI cases, and the significant time required to investigate FOI cases.
Whilst the ICO accepted in their decision that there was likely to be a legitimate public interest in the Home Office complying with the request pursuant to the FOI, the Commissioner confirmed that:
‘a safe space is needed to develop ideas, debate live issues, and reach decisions away from external interference and that the need for a safe space will be strongest when the issue is still live’.
The Commissioner continued by stating that:
‘As the Home Office has confirmed that the Ministry of Justice was using the material at the time of the request and internal review response to formulate policy proposals, the commissioner believes that disclosure of the information could impact those policy decisions and undermine the safe space needed for policy formulation and development.’
The ICO is seeking to tackle delays in dealing with complaints, as confirmed by the CIO director’s update from 13 July 2022, which confirms:
“ICO25 will set out three key developments that will be introduced with the specific aim to speed up the handling of requests and give people quicker access to the information they are entitled to under the act.
Firstly, we will be looking at prioritising requests where we consider that there is a clear public interest in moving them up the queue, so they are resolved more quickly. We already do this in some cases, but plan to publish updated criteria later this year to reflect this expanded approach.
Secondly, we will be taking a fresh look at how we resolve disputes. We will be working more closely with requestors to get clarity on precisely what information they are looking for and working with public authorities on exactly what exists and is available with a view to seeing whether an early resolution can be reached between the parties without a need for a formal ICO decision notice.
Finally, we are also exploring how, as part of the commitments we make in ICO25, we can clear the cases already with our office even quicker than planned. This will free up resources to deliver our wider ambitions and ensure we deal with new cases faster.”
Comment
We will see what impact ICO25 has on the delays experienced by complainants as it is implemented.
How can we help?
Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us