Last week a Freedom of Information disclosure from the Cabinet Office put significant new material about the notorious Iraq WMD dossier into the public domain. A few days later the Information Commissioner’s Office (ICO) announced action to address delays by the same Cabinet Office in responding to FOI requests. Unfortunately neither development was what it seemed.
Six years into FOI, information still has to be dragged out of the department at the heart of government. And the ICO is not willing to bite the government hand that feeds it.
The Cabinet Office disclosure led to my story for the Observer on Sunday, which revealed that the man responsible for the dossier suggested using it to mislead the public. But to get the smoking gun memo, I had to put pressure on the ICO to force the Cabinet Office to stop stalling and release the information.
I made my initial FOI request last September, which meant that I was due a reply in October. A holding reply, which was late, said that a further 20 working days were needed to consider whether the public interest required concealment or disclosure of the information. This is a fairly standard part of the process, and legitimate as long as it is not abused.
Having a long experience of Cabinet Office delaying tactics, I had already complained about the late response to the ICO, whose response was to try to close the case on the grounds that there is not sufficient public interest in dealing with complaints about late responses. I insisted that they must investigate the complaint to ensure that I got a substantive response.
I also pointed out that the ICO had announced that it was monitoring the performance of a number of public bodies, including the Cabinet Office, for its poor record of responding to FOI requests on time. If the ICO would not investigate complaints, where would it get its monitoring information from?
Four years ago, I wrote a piece for the New Statesman identifying the Cabinet Office as a serial offender when it comes to responding to FOI requests on time and making the very same points about the ICO’s unwillingness to take it on. There is a new commissioner – Christopher Graham – but little else has changed.
In March, after the Cabinet Office abused the process by claiming one 20-day extension after another, the ICO eventually issued a decision notice finding that it had breached the FOI Act. But the decision failed to recognise that I still hadn’t had a substantive response and did not require the Cabinet Office to provide one.
I appealed to the Information Tribunal. The ICO admitted its mistake and asked for the decision to be amended to require a response. I eventually got the documents, eight months late – after fighting not just the Cabinet Office, but the ICO to get them.
In April, the ICO issued a press release stating that, following its monitoring, the Cabinet Office was one of two government departments facing regulatory action for continued failings.
Last week, the ICO announced that the regulatory action requires the Cabinet Office to… promise to do better in future. Despite finding that even during the monitoring period the Cabinet Office was responding to fewer than the benchmark 85% of requests on time and that there were outstanding overdue requests at the end of the period, Graham decided “that an Undertaking, formalising the Cabinet Office’s commitment to openness and compliance with the legislation, is appropriate”.
In return, Graham committed not to exercise his powers over the appalling example set by the very department that should be setting an example to the rest of central and local government. More formal action, he said, “would be disproportionate”.
It is nearly a year since the ICO announced that it was taking a “tougher approach” to delays. It said then: “The public bodies that continually fail to meet their legal obligations will face regulatory action … After monitoring authorities’ compliance with the Act, we will take action against those that abuse the system.”
The ICO is still talking a good game but in reality it has raised the white flag.
Chris Ames is a freelance writer and investigative journalist