The importance of Freedom of Information by Warren Seddon

Warren Seddon is Director of Freedom of Information and Transparency at the Information Commissioner’s Office (ICO),here he outlines the importance of Freedom of Information.

Fundamental to democracy

It is almost quarter of a century since the Freedom of Information (FOI) Act 2000 became law and two decades since it came into force on 1 January 2005. It has become an essential and entrenched part of our constitutional framework over this period, with the cross party Independent Commission on FOI concluding in 2015 that it has “helped to change the culture of the public sector … [and] has enhanced openness and transparency.”

Transparency and accountability are fundamental to our democracy - the impact of decisions made by public bodies affect us all in some way. To this end, our role as regulator includes providing guidance to the public to help them make FOI requests, supporting their right to know why crucial decisions affecting their lives are made and how their taxes are spent. We resolve over 6,000 FOI complaints every year, ordering public authorities to release information where necessary.

We are also responsible for supporting public authorities to be transparent and accountable about the decisions they make and the public money they spend.

We achieve this by giving clear advice and guidance, promoting good record keeping and encouraging the proactive disclosure of information that is in the public interest or safe to disclose. We also provide tools and support for public bodies to understand how to comply with information requests and release information when that is appropriate.

When that does not happen, we take enforcement action against public authorities, so people’s information rights are upheld. Since the Act came into force, we have issued and published thousands of decision notices resolving the complaints we receive, many of which ordered the disclosure of information or required public bodies to respond to requests where they had failed to comply with their statutory duty to do so. During the pandemic, for example, this included information that impacted the lives of millions of people across the UK and informed public debate. This included details of ‘Exercise Cygnus’, the pandemic exercise conducted by the government in 2016 and information about the advice given to the Department of Health and Social Care (DHSC) around the changes to shielding policy.

Following the pandemic, when we did provide some breathing space for public bodies struggling to comply with information requests, we have also refocussed our attention on more systemic enforcement of the Act. We published a new FOI regulatory manual last summer setting out how we will monitor and enforce compliance where we see repeated failures to comply with the law.

This has already had a real impact. In September last year we issued an enforcement notice to the Department for International Trade (DIT) and a practice recommendation to the Department for Business, Energy and Industrial Strategy (BEIS), for persistent failures to respond to information access requests within the statutory time limit. Both of these have been complied with and we have since issued a number of other practice recommendations against a range of authorities.

‘Behind the Screens’

We also look, where needed, at some of the broader issues that affect transparency based on the complaints we receive. Last year we called for a government review into the systemic risks and areas for improvement around the use of private correspondence channels – including private email, WhatsApp and other similar messaging apps.

The ICO report – Behind the screens - maintaining government transparency and data security in the age of messaging apps – details a yearlong investigation that we conducted into the use of these channels by Ministers and officials at the DHSC during the pandemic.

The investigation found that the lack of clear controls and the rapid increase in the use of messaging apps had the potential to lead to important information around the government’s response to the pandemic being lost or insecurely handled.

Information Commissioner John Edwards said at the report’s launch:

“Public officials should be able to show their workings, for both record keeping purposes and to maintain public confidence. That is how trust in those decisions is secured and lessons are learnt for the future.

“The broader point is making sure the FOI Act keeps working to ensure public authorities remain accountable to the people they serve. Understanding the changing role of technology is part of that picture.”

Improving the ICO’s FOI services

We face our own challenges to make sure the way we regulate the act keeps pace with ways of working across the public sector. We continue to face the long-term challenge of doing more with less in real terms. That is why we’ve been looking at ways to improve our FOI services, while making sure our limited resources are targeted in the right areas.

Our new ICO25 plan sets out what we want to be known for; and how we intend to achieve this by 2025. This includes the significant changes we will make to our regulation of the FOI Act, with promoting openness and transparency being one of our key strategic objectives for the next three years.

Delivering this means reducing our own FOI casework backlog that grew during the pandemic and which, as you read this, I am pleased to say we have almost completed. This means we enter the next financial year in a place where we can start delivering a much more efficient and effective service that is improved beyond where we were even before the pandemic.

On top of this, we’re also planning to prioritise complaints we receive where there is a clear public interest in the information that has been asked for. This means that we will make sure these cases are accelerated both through our own service but also in respect of the deadlines we give public bodies that have received them.

We will of course still handle all the complaints we receive in line with our statutory duties. We know that at the end of every complaint is a person simply trying to exercise their legal right to get hold of information they need. We will not lose sight of this and will endeavour to resolve all the cases we receive as quickly as possible.

We consulted on this proposal towards the end of last year and are reviewing responses. Our response will be published soon.

We are continuing to examine what further efficiencies we can make to improve our own FOI services while supporting other public bodies to do the same, as we all have a role to play in driving access to information. To that end we’ve also established a new team that will be focused on providing enhanced support to public authorities to help them resolve FOI requests without the need for our office to intervene. We’ve already published a range of tools to achieve this and are conducting research to understand what more we could and should do.

So there is an exciting amount of activity in relation to this area of our work as part of our new ICO25 plan. Ultimately, we want to deliver a modern FOI system that inspires confidence in public authorities both now and in the future. An FOI system that is fit for the 25th anniversary of the Act in 2025.