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Information Commissioner's Office Delays: Sarika Singh case

13th July 2010

Jonathan Djanogly replies on behalf of the Government to Ann Clwyd MP's debate on unacceptable delays at the Information Commissioner's Office.

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I congratulate the right hon. Member for Cynon Valley (Ann Clwyd) on securing this debate on a matter that I am sure will be of interest to many hon. Members because of its wider impact. I thank her for working with the Justice Department in preparation for the debate and would like to say up front how much I admire her determination in this case to seek transparency from a public body as provided for by the law.

The Government are committed to enhancing transparency, as was made clear by the coalition agreement. We are already making available a wide range of information in line with the agreement. For example, the Treasury's combined online information system, or COINS, database on UK Government expenditure, which was provided by Government Departments, has been published at www.data.gov.uk. The website also has information about special advisers working in Government Departments, as well as the numbers of staff, consultants, contractors and agency staff working in Departments, agencies and non-departmental public bodies.

That is just the start. Much more information will be made available over the coming weeks and months to increase transparency and accountability in the public sector. Of course, proactively making information available forms just one part of our commitment. Ensuring the effective operation of the Freedom of Information Act is also key to transparent and accountable government. It is vital that the public are able to request information that is of interest to them directly from public authorities, and that that is provided where it is in the public interest to do so. But the buck does not stop with the public authority. It is equally important that the Act is enforced in a robust and timely manner by the Information Commissioner. The same applies in relation to the other legislation that the commissioner has responsibility for, such as the Data Protection Act 1998.

The issue of robust and timely regulation is the focus of this debate. The right hon. Lady is right to be alert to the challenges that continue to be posed by the maintenance of a robust and efficient FOI regime. However, I hope that she will understand that it would be inappropriate for me to comment on the specific case at the heart of this debate, as it is ongoing and is the subject of an appeal to the First-Tier Tribunal General Regulatory Chamber.

The right hon. Lady has made plain her feelings about the situation. She is correct to identify delays in processing requests at the Information Commissioner's Office, which were highlighted in the report published in July 2009 by the Campaign for Freedom of Information, as she mentioned. She also noted that the original information notice was wrongly issued due to ICO error, but that she has received an apology from the ICO in relation to that.

The CFI report highlighted a catalogue of delays based on an analysis of almost 500 decision notices issued by the Information Commissioner's Office between 1 October 2007 and 31 March 2009. The report calculated that it took an average of 19.7 months to issue a decision notice and stated that it took between one and two years to issue a decision notice in 46% of cases. In one quarter of cases, it took between two and three years to issue a decision notice. Although those figures say nothing of the many cases that were resolved informally, without recourse to a decision notice over the period, it was still a pretty damning picture. However, very significant progress has and is still being made to rectify that situation.

The current Information Commissioner, Christopher Graham, took up office in June 2009, just before the Campaign for Freedom of Information published its report. Following his appointment, Mr Graham recognised the impact that the backlog of cases has had on the performance of his office and announced his intention to

"put a shock through the"



The clearance of the backlog of FOI cases was identified as one of his top priorities. I am pleased to say that he has made significant progress in clearing the backlog of old FOI cases that he inherited. In the first three months of 2010 alone, for instance, more than 1,000 cases were closed; the number of cases over one year old was halved; and the average age of cases fell by 34%. Those impressive results have continued. Between 1 April 2009 and 1 April 2010, the number of cases more than two years old fell by 91% and the number of cases more than one year old fell by 72%. That is a very significant achievement, of which Mr Graham and his staff can be justifiably proud, especially in the face of rising demands for the ICO's services. However, both Mr Graham and the Ministry of Justice recognise that there is no room for complacency. Efforts to maintain and improve the level of performance must be maintained.

The commissioner will publish his annual report tomorrow, as the right hon. Lady said. Although she will understand that I cannot disclose its contents today, I have no doubt that she will be encouraged by the progress that it will show.

The current economic climate is, of course, extremely challenging, but the Government are committed to providing the ICO with the best deal possible to maintain its progress and to fulfil its vital role. I have to say that this is not just about money; it is also about people and expertise. I am sure that the right hon. Lady will be interested to know that three experienced caseworkers have been seconded from central Government, helping to cut through the ICO's backlog.

The commissioner has made great strides to improve the efficiency of his operation to provide increasing value for money. That is evidenced in the remarkable increase in case clearance that I have just mentioned. The programme of work is holistic and ongoing and includes a fresh look at all processes; the integration of FOI and data protection staff to achieve greater flexibility in the ICO's resources; the introduction of a triage system for casework; greater emphasis on the informal resolution of cases; the production of more concise decision notices; and increasing the numbers of staff authorised to sign off formal decisions.

Of course, the speed with which requests are dealt with is only one part of the picture. An effective commissioner must have sufficient enforcement powers to hand to perform his role-a point made strongly by the right hon. Lady-including the power to require a public authority to provide him with information through an information notice, and a power to require a public authority to take a particular course of action, through an enforcement notice. The commissioner has stated that he will readily use those powers against public authorities and has increasingly done so. It is worth bearing in mind that non-compliance with either an information or enforcement notice from the commissioner is a criminal offence. That has been key to ensuring greater compliance from recalcitrant authorities. However, in a democratic society, it is only right that a public authority has a right of appeal against such notices and the FOI Act provides for that.

Sometimes the process can feel frustratingly slow for those trying to access information. The right hon. Lady knows how it feels, as she said during her long description of what she had to go through. I understand that she wanted to put the process on the record so that we can learn from what happened in her situation. However, we should not allow frustration to override the right of public authorities and requesters to challenge decisions where they think they have a right to do so.

Debates such as these prompt us to reconsider whether the ICO's powers of enforcement and public authorities' right of appeal are appropriate, fair and balanced. I can assure the right hon. Lady that we will keep returning to the matter, because it is of central importance in ensuring that both individuals and organisations can exercise the rights that we want them to have. Any unnecessary obstacles, such as delays, must be-and are being-tackled to make sure that personal data are protected and that information that should be released is released as quickly and efficiently as possible.

It is important that we continue to support the commissioner, as his work is at the heart of the Government's transparency agenda. The commissioner will publish his annual report tomorrow and the right hon. Lady will have the opportunity to see it. I am sure that she will be pleased to note the steps that the Government have already taken and will continue to take to make more information available to the public, shedding light on public affairs, from the corridors of Whitehall to the meeting rooms of borough councils and local schools.

The right hon. Lady specifically asked me to say whether the commissioner has enough power to regulate the freedom of information regime effectively. We believe that, as things stand, that is so. The powers are there. The commissioner can issue information notices, which require public authorities to provide the information requested, and can issue enforcement notices that do not require an initial complaint to be made to the ICO. One can technically start off with an enforcement notice straight away, if it is appropriate. It is a criminal offence not to comply with those notices, and if public bodies do not comply the commissioner can refer the matter to the courts to be dealt with as contempt of court.

Under section 49 of the Freedom of Information Act, the commissioner presents annual reports to Parliament, as will happen tomorrow, on the exercising of his functions and can lay further reports as he sees fit. Those reports can raise criticisms of public bodies' handling of FOI. Furthermore, under schedule 3, if the commissioner reasonably suspects that public bodies are failing to comply with any of the requirements of the Act, he can seek a warrant from a circuit judge, granting the ICO the right to inspect premises, seize information and retain it for as long as necessary, unless it is under cover of legal privilege.

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