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Guest Blog: Where is FOI Going?

The Freedom of Information (FOI) Act is 21 years old (although only in operation for the last 16 of those 21 years). In November last year OpenDemocracy published an in-depth analysis of the FOI compliance of central government departments. It made depressing - if not surprising - reading: it revealed, for instance, that in 2019, "central UK government departments granted fewer and rejected more FOI requests than ever before. In the last five years, the Cabinet Office - as well as the Treasury, Foreign Office and Home Office - have all withheld more requests than they granted".

Those - such as journalists and researchers - who have made FOI requests for any length of time will be familiar with refusals to disclose information, and they may well feel justifiably that those refusals have become more prevalent in recent years. In fact, there is even an argument (it may be spurious, but it's grounded in logic) that the amount of information disclosed by public authorities over time will inevitably reduce, on the grounds that all the juicy stuff was disclosed in the early days.

But, if one casts an eye over the decade-and-a-half of FOI compliance, one will see other patterns. In the early days of FOI, time-compliance by public authorities was generally OK, and oversight by the Information Commissioner's Office (ICO) of complaints was robust (albeit that often the ICO took much too long to determine cases, leading to a large backlog). In the days under Commissioner Christopher Graham, that backlog was successfully reduced, by the adoption of what he termed a "silver standard" of FOI regulation. However, in the past five years or so (and this includes the period covered by OpenDemocracy's report), we have seen the reappearance of a backlog, with cases taking many months to be allocated to ICO caseworkers, but this time it is married to a diminution in robustness of regulation. If public authorities fail to respond to FOI requests now, or delay unacceptably, they generally get no criticism from the ICO, where in the past, notices would at least highlight the compliance point, and suggest that repeat failings might lead to enforcement action.

And I fear that this more recent approach of light touch regulation whilst backlogs increase, could lead to a dual problem: public authorities may decide that there is no point in complying, and no harm if they fail to do so, whilst requesters may feel there is no point in making requests.

In 2012 the Commons Justice Committee said that the FOI Act "has been a significant enhancement of our democracy". It has, but underpinning it there must be effective regulation. I fear that if MPs were to scrutinise how FOI was working in 2021, they might come to a different conclusion.

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About Jon Baines

Jon is a Senior Data Protection Specialist in the Intellectual Property Group at Mishcon de Reya LLP.

With more than 10 years' experience, he advises clients across a number of sectors, including Retail, Life Sciences and Betting & Gaming, as well as private clients. He is able to draw on practical experience, having previously been Data Protection Officer for a critical national infrastructure organisation.

Jon is an expert in data protection and freedom of information law, and acts in a voluntary capacity as chair of the National Association of Data Protection and Freedom of Information Officers (NADPO). He is regularly sought for comment by specialist and national media, writes extensively on data protection matters, and is recognised in Kingston Technology's Top 50 Global Experts 2018 list.

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