Analysing Freedom of Information Law in the United Kingdom: Examining the Handling of Freedom of Information (FOI) Requests and the Role of the Information Commissioner’s Office

Abstract

This article will rigorously explore FOI law within the United Kingdom, specifically scrutinising the handling of FOI requests by public bodies. The first segment of this article will draw attention to the scope of public authorities and organisations covered under the Freedom of Information Act 2000 (FOIA) and will examine the delays in responding to information requests, the implementation of exemptions in addition to the conduction of internal reviews which have resulted in lengthy delays in the responses to information requests. The second section of this article will explore the role of the Information Commissioner’s Office (ICO) surrounding FOI law, precisely analysing the backlog of complaints made to the ICO. The article finds the urgent need for the government to work towards reforming elements of the FOIA 2000 as well as work towards promoting greater enforcement powers for the ICO

Introduction: An Insight into Freedom of Information Law in the UK

The term ‘Freedom of Information’ ultimately refers to a person’s right to access public information. In the UK, the core piece of legislation that provides the fundamentals of freedom of information is the Freedom of Information Act 2000 (FOIA). The FOIA 2000 was enforced in the UK on 1 January 2005. This specific statute provides UK citizens with a statutory right of access to public information from over 100,000 public bodies. Typical examples of the public authorities and organisations that are covered under the FOIA include the police force, the NHS as well as local schools and authorities.

When assessing the impact that the FOIA has had in the UK over the course of a decade, academics Ben Worthy and Robert Hazell pinpoint six key objectives of FOI law to be:

“(1) Increased openness and transparency.

(2) Increased accountability.

(3) Improved decision-making in the government.

(4) Better public understanding of government decision-making.

(5) Increased participation.

(6) Increased public trust in government”.[1]

Under the FOIA 2000, citizens in the UK are entitled to request information from public bodies who are required to respond to an applicant’s FOI request within a statutory time period of 20 working days. The FOIA also lays out the exemptions which enable public authorities to withhold the access to certain information from the applicant. Public authorities ultimately have the right to withhold information from an applicant in circumstances where the request is considered to be vexatious or in instances where the cost of the request will exceed the statutory time frame for a public body to respond to the request.

If an applicant is left with a feeling of discontent regarding the outcome of a public authority’s response to their request, they have the right to make a complaint to the ICO. The role of the ICO surrounding FOI law will be examined further on in this article.

The Breadth of ‘Public Authorities’ under the FOIA 2000

Prior to scrutinising the handling of FOI requests within the UK, this article will first explore the breadth of public authorities that are contained within the FOIA 2000.

Schedule 1 of the FOIA 2000 contains a range of public bodies and organisations that are categorized as ‘public authorities’, notable examples including the NHS and education institutions, as briefly mentioned in the introduction of this article. Section 5 of the FOIA touches on the handling of contracts under public bodies yet fails to make explicit reference to contractors as bodies themselves. Section 5 provides a substitute direction for appointing contractors as public bodies under its scope. Under section 5 of the FOIA 2000, the Secretary of State identifies an organisation to be a public authority if they “exercise functions of a public nature”[2] or if they provide “under a contract made with a public authority any service whose provision is a function of that authority”.[3] Whilst section 5 of the FOIA 2000 forms an approach authorizing contractors as public bodies, the statute fails to extend “automatically to contractors delivering public functions or bodies like housing associations providing services of a public nature”.[4]

In its 2019 report advocating for reform of the FOIA 2000, the ICO underlines that in the aftermath of the 2017 Grenfell Tower fire, difficulties arose when accessing public information surrounding “social housing”.[5] Kensington and Chelsea Tenant Management Organisation, (KCTMO), the tenant organisation who had the responsibility of managing Grenfell Tower, were not liable under the FOIA 2000 due to the organisation being deemed a private body. Additionally, Inside Housing note how KCTMO were acquainted with full knowledge regarding the faulty smoke ventilation system in Grenfell Tower a year prior to the fire but failed to notify “residents about the increased fire risk”[6] in the building. Moreover, the liquidation of the infamous construction firm Carillion in 2018 saw the collapse of an estimated 420 public sector contracts[7] and there had been insufficient knowledge of the company’s financial susceptibility. These two instances ultimately highlight the lack of transparency and democratic accountability in the performance of FOI law within the United Kingdom illustrating how reform is needed in schedule 1 of the FOIA 2000. Furthermore, the liquidation of Carillion in 2018 is a prime example of how the FOIA 2000 fails to make a consideration for private bodies and organisations that exert responsibilities of a public nature.

The Handling of FOI Requests in the UK: Delays in Responding to FOI Requests

Since the FOIA’s enactment in 2005, Hazell and Worthy cite delays to be a “common problem”[8] in relation to the response of FOI requests in the UK. Delays in responding to information requests have been frequent amongst journalists. Conducting a survey in 2021 consisting of 164 journalists,[9] Mária Žuffová documents how a portion of requesters were left with a sense of dissatisfaction due to the high refusal rates from public bodies and organisations. Žuffová documents how an estimated 86% of journalists “who had previously submitted a request claimed that it was refused at least once”.[10] Frequent issues resulting in “unresponsiveness”[11] from public bodies consisted of lengthy time limits in addition to exemptions based on the cost of responses.

The impacts of the COVID-19 pandemic have had a consequential effect on the response rate of FOI requests in the UK. Whilst public authorities are required to respond to an information request within a statutory time limit of 20 working days, the Institute for Government’s Whitehall Monitor emphasises that if an authority fails to meet this framework for at least 90% of requests from applicants, the ICO can choose to place it under “special monitoring”.[12] The statistics recorded by Whitehall Monitor indicate how governmental departments have ultimately struggled to track the vast amount of FOI requests as a result of the pandemic. Whitehall Monitor also document that in quarter one and two of 2021,[13] seven of nineteen governmental departments, equivalent to 37%,[14] failed to meet the target requirement of responding to 90% of requests from applicants within the UK.[15] Jenna Corderoy and Peter Geoghegan note how one applicant waited for approximately 11 months for a response from the Cabinet Office to provide the names of 14 members of an “accreditation committee”.[16] The Cabinet Office have also regarded “staffing changes”[17] as one of the grounds for its failure to finalize internal reviews on schedule. The delays in responding to information requests is another clear indication of the lack of transparency within the Government’s performance of FOI in the UK.

The Implementation of Exemptions and Internal Reviews

The FOIA 2000 sets out a legal precedent in Part II for the categories of exemptions that allow public authorities to withhold access to public information from applicants. The two brackets of exemptions include:

• ‘Absolute’ exemptions, whereby information that is protected under this category is “immune”[18] from being released to the public.
• ‘Qualified’ exemptions which comprises of exemption that are subject to the public interest test.

Table A

Table A has been curated by using data reported by the Cabinet Office displaying statistics from 2020, 2021 and 2022).[19] 

Table A showcases the increase in FOI requests over three consecutive years in addition to the total number of requests withheld during the specific year, also consisting of exempted requests. The statistics displayed in Table A illustrate how the application of exemptions is a cause that contributes to the refusals of FOI requests by public authorities which allows them to withhold access to public information from applicants. Moreover, out of the 11,711 of exempted requests reported in 2020, section 40 of the FOIA, which exempts information amounting to personal information, was the most frequently reported exemption, constituting to 44.8% of exemptions.[20] Section 22 of the FOIA, concerning information intending to be published at a later date, was documented in 10.6% of exemptions in 2020.[21] No other exemption was cited in more than 10% of exemptions during 2020.[22] In 2021, 44.6% of the 14,256 exemptions[23] recorded were noted as exemptions covered by section 40 of the FOIA 2000. Additionally, in the same year, statistics show that no other exemption was reported in over 10% of exemptions.[24] The Institute for Government have noted that “neither the Government nor individual departments”[25] have provided further explanation regarding exempted FOI requests. From the data documented by the Government over the duration of three consecutive years, public bodies have ultimately failed to provide further explanation surrounding the application of exemptions. For greater clarity, it is essential for the Cabinet Office to publish data that provides an extensive elaboration and explanation regarding the specific exemptions that have been implemented.

Applicants are granted the right to ask a public body for an internal review if they are left dissatisfied with the preliminary response on whether to disclose access to information or not. The ICO provide guidance in which the time frame for the completion of internal reviews should be 20 working days. The Cabinet Office have provided statistics regarding internal reviews with an unknown outcome over 3 consecutive years. It is evident that from these statistics that the unknown outcomes of internal reviews ultimately contribute to both inconsistencies and loopholes within the administration of FOI law. These statistics show that:

• “Of the 288 internal reviews with an unknown outcome at the time of end of year monitoring in 2019, 70 were still incomplete at the time of end of year monitoring in 2020”.[26]
• “Of the 431 internal reviews with an unknown outcome at the end of year monitoring in 2020, 77 were still incomplete at the time of end of year monitoring in 2020, 77 were still incomplete at the time of end of year monitoring in 2021”.[27]
• “Of the 482 internal reviews with an unknown outcome at the time of end of year monitoring in 2021, 77 were still incomplete at the time of end of year monitoring in 2022”.[28]

Role of the Information Commissioner’s Office: Functions of the ICO 

The ICO is an independent public authority in the UK and is often classed as the “primary enforcement mechanism”[29] of the FOIA 2000. The ICO regulates statutes regarding environmental information as well as data protection such as the Data Protection Act 2018 (DPA). In relation to FOI law, the ICO examines complaints made to them by applicants who are left dissatisfied with the result of their requests and in instances where they believe that the handling of their request has failed to “comply with the FOIA”.[30] The ICO also maintain the role of issuing guidance to public authorities and requestors concerning the implementation of the FOIA 2000. The ICO have the responsibility of keeping track of the performance of public authorities to ensure that they are following “good practice”.[31]

Regarding its role of enforcement, the ICO possess the authority of issuing decision notices to public bodies as well as providing “good practice recommendations”[32] to public bodies ensuring that they comply with the provisions of the FOIA 2000 when disclosing information. Under section 51 of the FOIA 2000, the Information Commissioner has the authority to issue an information notice requesting information as to whether a public organisation has fulfilled its obligations under Part I of the statute. Under section 52 of the FOIA 2000, the Information Commissioner has the power to grant an enforcement notice if they believe that a public authority has failed to act accordingly with the obligations set out in Part I.

The Backlog of FOI Complaints

In its 2022/23 Annual Report, the ICO document how the efficiency of performance measures was impacted due to the “age of cases”[33] in its backlog. The ICO highlight how a significant number of requests concerned the Cabinet Office. The Cabinet Office received the “highest number”[34] of complaints regarding FOI requests.

The Campaign for Freedom of Information highlight that in 2022, 133 complaints were made regarding the Cabinet Office,[35] the highest number received against any governmental body in 2022. This was equivalent to around 6% of the ICO’s caseload.[36] The Campaign also document how the ICO had issued a FOI enforcement notice for the first time in seven years in September 2022,[37] to the Department for International Trade. The Department failed to meet the statutory time limit in over 50% of FOI requests during the first quarter of 2022.[38] Thus, it is evident that the ICO should work towards issuing more enforcement notices in order to reduce the backlog of complaints.

Conclusion

This article has highlighted the core issues regarding FOI law within the UK. The article has specifically examined the scope of ‘public authorities’ under the FOIA 2000 and it is essential that the Government should work towards amending the Act for it to consider private organisations that assert responsibilities of a public nature. Alongside this, it is also essential that the UK Government should work towards extending the scope of public authorities in the UK to promote greater transparency and accountability in the implementation of FOI law within the UK. Regarding the application of exemptions, it is vital that the Cabinet Office should publish data that allows for a greater elaboration with certain exemptions that have been implemented in order to stay clear from loopholes within the administration of FOI law. Additionally, it is also vital that the UK Government should work towards establishing a fixed legal term of no more than 20 working days when responding to internal reviews in order to avoid opacity in relation to the administration of FOI law.

Bibliography

Primary Sources

Legislation

Freedom of Information Act, 2000.

Secondary Sources

Articles

Worthy B and Hazell R, ‘Disruptive, Dynamic and Democratic? Ten Years of FOI in the UK’ (2016) 70 Parliamentary Affairs 22.

Žuffová M, ‘Fit for Purpose? Exploring the Role of Freedom of Information Laws and Their Application for Watchdog Journalism’ (2021) 28 The International Journal of Press/Politics 300.

Books

Harlow C and Rawlings R, ‘Law and Administration’ (4^th edn, Cambridge University Press 2022).

Masterman R and Murray C, ‘Constitutional and Administrative Law’ (3^rd edn, Cambridge University Press 2022).

Command Papers

Cabinet Office, ‘Freedom of Information Statistics in Central Government for 2020’ (Cabinet Office, 28 April 2021)

Reports

Constitutional Affairs Committee, ‘Freedom of Information one year on’ (2005-06, HC 991)

Information Commissioner’s Office, ‘Information Commissioner’s Annual Report and Financial Statements 2022-23’ (2023)

Information Commissioner’s Office, ‘Outsourcing Oversight? The case for reforming access to freedom of information law’ (Information Commissioner’s Office, 2019).

Institute for Government, ‘Whitehall Monitor 2022’ (Institute for Government, 2022)

Websites

Cabinet Office, ‘Freedom of Information Statistics’ (GOV.UK., 26 September 2023) < https://www.gov.uk/government/collections/government-foi-statistics > accessed 9 December 2024.

Cabinet Office, ‘Freedom of Information Statistics: annual 2021 bulletin’ (GOV.UK, 27 April 2022) < https://www.gov.uk/government/statistics/freedom-of-information-statistics-annual-2021/freedom-of-information-statistics-annual-2021-bulletin#exemptions > accessed 9 December 2024.

Cabinet Office, ‘Freedom of Information Statistics: annual 2022 bulletin’ (GOV.UK, 16 May 2023) < https://www.gov.uk/government/statistics/freedom-of-information-statistics-annual-2022/freedom-of-information-statistics-annual-2022-bulletin > accessed 10 December 2024.

Campaign for Freedom of Information, ‘FOI enforcement and the ICO’s caseload’ (Campaign for Freedom of Information, 22 November 2022) < https://www.cfoi.org.uk/2022/11/foi-enforcement-and-the-icos-caseload/ > accessed 7 December 2024.

Campaign for Freedom of Information, ‘ICO FOI backlog remains high’ (Campaign for Freedom of information, 31 May 2022) < https://www.cfoi.org.uk/2022/05/ico-foi-backlog-remains-high/ > accessed 7 December 2024.

Cheung A, ‘The percentage of Freedom of Information (FOI) requests refused by government has reached a record level’ (Institute for government, 22 June 2018) < https://www.instituteforgovernment.org.uk/article/comment/percentage-freedom-information-foi-requests-being-refused-government-has-reached#:~:text=There%20are%20two%20main%20reasons,up%20from%2012%25%20in%202010. > accessed 9 December 2024.

 Corderoy J and Geoghegan P, ‘British government slammed by regulator over ‘unacceptable failures’ (OpenDemocracy, 10 February 2021) < https://www.cfoi.org.uk/2022/05/ico-foi-backlog-remains-high/https://www.opendemocracy.net/en/freedom-of-information/british-government-slammed-by-regulator-over-unacceptable-foi-failures/ > accessed 10 December 2024.

 Heath L, ‘KCTMO Failed to Tell Grenfell Residents Smoke Ventilation System Broken “beyond repair”’ (Inside Housing, 27 April 2021) < https://www.insidehousing.co.uk/news/kctmo-failed-to-tell-grenfell-residents-smoke-ventilation-system-broken-beyond-repair-70526 > accessed 8 December 2024.

[1] Ben Worthy and Robert Hazell, ‘Disruptive, Dynamic and Democratic? Ten Years of FOI in the UK’ (2016) Parliamentary Affairs, 22, 25.

[2] Freedom of Information Act 2000, s 5(1)(a)

[3] Ibid, s 5(1)(b)

[4] Carol Harlow and Richard Rawlings, ‘Law and Administration’ (4^th edn, Cambridge University Press 2022) 267.

[5] Information Commissioner’s Office, ‘Outsourcing Oversight? The case for reforming access to freedom of information law’ (Information Commissioner’s Office, 2019) 6.

[6] Lucie Heath, ‘KCTMO Failed to Tell Grenfell Residents Smoke Ventilation System Broken “beyond repair”’ (Inside Housing, 27 April 2021) < https://www.insidehousing.co.uk/news/kctmo-failed-to-tell-grenfell-residents-smoke-ventilation-system-broken-beyond-repair-70526 > accessed 8 December 2024.

[7] Information Commissioner’s Office (n 5) 5.

[8] Robert Hazell and Ben Worthy, ‘Assessing the Performance of Freedom of Information’ (2010) 27 Government Information Quarterly, 352, 355.

[9] Mária Žuffová, ‘Fit for Purpose? Exploring the Role of Freedom of Information Laws and Their Application for Watchdog Journalism’ (2021) 28 The International Journal of Press/Politics 300.

[10] Ibid, 312.

[11] Ibid, 311.

[12] Institute for Government, ‘Whitehall Monitor 2022’ (Institute for Government, 2022) 100.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Jenna Corderoy and Peter Geoghegan, ‘British government slammed by regulator over ‘unacceptable’ FOI failures’ (OpenDemocracy, 10 February 2021) < https://www.opendemocracy.net/en/freedom-of-information/british-government-slammed-by-regulator-over-unacceptable-foi-failures/ > accessed 10 December 2024.

[17] Ibid.

[18] Harlow and Rawlings (n 6).

[19] Cabinet Office, ‘Freedom of Information Statistics’ (GOV.UK., 26 September 2023) < https://www.gov.uk/government/collections/government-foi-statistics > accessed 9 December 2024.

[20] Cabinet Office, ‘Freedom of Information Statistics in Central Government for 2020’ (Cabinet Office, 28 April 2021), 16.

[21] Ibid.

[22] Ibid.

[23] Cabinet Office, ‘Freedom of Information Statistics: annual 2021 bulletin’ (GOV.UK., 27 April 2022) < https://www.gov.uk/government/statistics/freedom-of-information-statistics-annual-2021/freedom-of-information-statistics-annual-2021-bulletin#exemptions > accessed 9 December 2024.

[24] Ibid.

[25] Aron Cheung, ‘The percentage of Freedom of Information (FOI) requests being refused by government has reached a record level’ (Institute for Government, 22 June 2018) < https://www.instituteforgovernment.org.uk/article/comment/percentage-freedom-information-foi-requests-being-refused-government-has-reached#:~:text=Government%20must%20be%20held%20accountable,has%20increased%20significantly%20since%202010 > accessed 9 December 2024.

[26] Cabinet Office (n 21) 19.

[27] Cabinet Office (n 24).

[28] Cabinet Office, ‘Freedom of Information Statistics: annual 2022 bulletin’ (GOV.UK, 16 May 2023) < https://www.gov.uk/government/statistics/freedom-of-information-statistics-annual-2022/freedom-of-information-statistics-annual-2022-bulletin > accessed 10 December 2024.

[29] Roger Masterman and Colin Murray, ‘Constitutional and Administrative Law’ (3^rd edn, Cambridge University Press 2022) 567.

[30] Harlow and Rawlings (n 6) 272.

[31] Constitutional Affairs Committee, ‘Freedom of Information one year on’ (2005-06, HC 991) para 48).

[32] Ibid, para 49.

[33] Information Commissioner’s Office, ‘Information Commissioner’s Annual Report and Financial Statements 2022-23’ (2023) 59.

[34] Ibid.

[35] Campaign for Freedom of Information, ‘ICO FOI backlog remains high’ (Campaign for Freedom of information, 31 May 2022) < https://www.cfoi.org.uk/2022/05/ico-foi-backlog-remains-high/ > accessed 7 December 2024.

[36] Ibid.

[37] Campaign for Freedom of Information, ‘FOI enforcement and the ICO’s caseload’ (Campaign for Freedom of Information, 22 November 2022) < https://www.cfoi.org.uk/2022/11/foi-enforcement-and-the-icos-caseload/ > accessed 7 December 2024.

[38] Ibid.