FOIMan examines the Information Commissioner’s proposals for a new duty to document.
In December, the Information Commissioner, Elizabeth Denham, gave a speech at an event celebrating 250 years of freedom of information. During the speech Ms. Denham indicated that she wanted the government to legislate for a “duty to document”.
I wrote briefly about this at the time. But in my latest piece for PDP’s Freedom of Information Journal (available here), I’ve looked further into the Information Commissioner’s proposals.
Amongst the issues explored are:
- what effect FOI has had on public sector records management;
- how the Information Tribunals have dealt with the issue of records management;
- what problems is the Commissioner seeking to resolve;
- what tools are available to the Commissioner now;
- and finally, are there any existing duties to document along the lines that Elizabeth Denham suggests?
FOIMan reports on his first encounter with the new Information Commissioner.
Elizabeth Denham, speaking at the FOI at 250 event
One of the things that struck me most when Elizabeth Denham was appointed Information Commissioner earlier this year was her background. After the career bureaucrat that Chris Graham represented, her background as an archivist and records manager seemed particularly refreshing. And not least because that’s (ahem) my background too. One of the things I’ve been wondering ever since is whether, and how, this would affect her approach as Commissioner. What would an archivist use the position of Information Commissioner to achieve?
Last night I was fortunate to be able to attend a panel discussion celebrating the 250th anniversary of FOI, and the answer was forthcoming. It was my first opportunity to hear Ms. Denham in person. She drew a clear line in the sand with what had gone before. In particular she laid out two aims in relation to FOI.
Firstly – and a thousand archivists punch the air – she announced that she would be seeking to persuade government to introduce a statutory record-keeping requirement. In answers to questions it became clear that she saw this as an answer to the decline of registries. She also mentioned other jurisdictions that already have this kind of legislation, notably in Australia.
Secondly – and a hundred thousand FOI campaigners punch the air – she indicated her intention to pursue the extension of FOI to private sector contractors. “We should extend the right to know about public service so it is independent of the service provider”, she said.
Ms. Denham told us that Parliament would receive a report from her office in 2017 pushing both of these agenda. This is a Commissioner like we’ve never seen before – a campaigning, activist ombudsman. Whether it will achieve more than the pragmatic, softly, softly approach that appeared to characterise her predecessor we will have to wait and see. But it is certainly a refreshing and exhilarating change.
With thanks to Article 19 and the Information Law and Policy Centre at the IALS for organising the event.
FOIMan summarises the outcome of the government’s long-awaited Triennial Review of the Information Commissioner’s Office.
The government has finally published its Triennial Review of the Information Commissioner’s Office (ICO). The long-awaited report concludes that:
- the ICO still has an important role to play
- it needs to adjust to the challenges of developing technology
- it should still report to a sponsoring department in government rather than the Commissioner becoming an officer of Parliament
- its structure should change to a board of commissioners – in line with a recommendation made by the Leveson Inquiry
- the government and ICO should quickly agree a more sustainable funding approach especially for DP activities.
Along the way, the report highlights criticism from many stakeholders which is familiar to long-term observers in this field – that the ICO aren’t tough enough at enforcement, that they go for the easy targets, and that the quality of guidance and assistance from the ICO can be inconsistent and sometimes poor. Nonetheless the report also discusses the achievements of the ICO in reducing backlogs and providing necessary expertise. It also recognises some of the challenges that the ICO has faced in recent years.
Overall, I suspect the ICO won’t be unhappy with the report and especially the recognition that whilst changes are necessary, government needs to put its hand in its pocket to pay for a more effective regulator. For more details, read the published report.
Source: Triennial Review of the ICO, 8 November 2016
Postscript: the government has rejected the proposal to restructure the ICO as a multi-commissioner board.
Source: statement by Minister of State for Digital and Culture, Matt Hancock MP
The Department for Culture, Media and Sport has announced that their nomination to take over from Christopher Graham is Elizabeth Denham.
Ms. Denham is currently the Information and Privacy Commissioner in British Columbia, Canada. This would be the first time that a UK Commissioner would be appointed from overseas. It won’t be the first time that we will have a female Information Commissioner – Elizabeth France was the Commissioner at the time that both the Data Protection and Freedom of Information Acts received Royal Assent.
The current Commissioner has welcomed the nomination:
“Elizabeth Denham is an inspired choice for Information Commissioner. As commissioner for both privacy and access to information in a similar jurisdiction, Elizabeth has shown independence of judgement and toughness of character. She will be a great leader for the ICO as it adapts to the demands of the new data protection framework – and she’ll be an effective upholder of information rights both in the UK and internationally.”
Ms. Denham will have to go through a pre-scrutiny hearing from the DCMS Select Committee, but if all goes well, the Queen will appoint the new Commissioner by Letters Patent later this year. Once this process is complete, the new Commissioner will take office in June this year. Following changes made by the Protection of Freedoms Act in 2012, Elizabeth Denham can serve a single 7 year term as Information Commissioner.
FOIMan highlights the difficulty of handling FOI requests at the height of industrial disputes.
Extract from correspondence
Those responsible for managing FOI compliance are in a difficult position at the best of times. I’m sure they wouldn’t quote Stealers Wheel to describe their situation (“clowns to the left of me, jokers to the right”) but nonetheless they are stuck in the middle of two camps, each of which passionately feels it is right. On the one side there is the requester seeking transparency and accountability, for whom often any reticence to disclose is another example of establishment secrecy. On the other, there is the information holder, often more senior than the one responsible for compliance, who sees their job as being to protect the organisation from harm. They know the information and its context much better than the FOI Officer and the poor old FOI Officer therefore has to judge whether their reluctance to disclose is justified by the facts, or whether the information holder is being unnecessarily defensive. Things can be even more complicated if those responsible for answering the request are directly affected by the matter concerned.
Pity then those responsible for answering FOI requests at the Information Commissioner’s Office (ICO). As correspondence disclosed by a member of the PCS union and published over the weekend by FOI Kid (no relation) shows, they are in a very tricky place at present. PCS are taking industrial action over a recent decision to award three senior officials large pay rises, whilst other staff have seen very limited pay increases, in line with the rest of the public sector. Union officials made FOI requests to their employer in order to understand the reasons behind the pay awards. Initially told that information was not held, the ICO appears to have changed its mind at internal review.
Dealing with requests in these circumstances is never easy, and any organisation can be forgiven for making mistakes under pressure. That even the regulator’s handling of such a case appears somewhat clunky demonstrates how difficult it can be when employee relations meet FOI.