A “quickie Decision Notice” is not a substitute for more resources.

As I said in my last blog before Xmas, the Information Commissioner is before the Justice Committee today at 4.45 pm; it might be “interesting viewing” (link from http://www.parliamentlive.tv/Main/Player.aspx?meetingId=5438).

However, I want to make a quick point about the Commissioner’s favoured method of reducing the backlog of FOI decisions; the introduction of what I call a “quickie Decision Notice”. The Commissioner has gone on the record as saying that “too many decision notices are produced to a gold standard with eleven pages of legal argument that would survive a prolonged case in the European Court of Human Rights”. He has concluded a more concise consideration would do.

The Commissioner’s backlog is severe. In July 2009, the FOI Campaign reported that 25% of cases resulting in a Decision Notice from the ICO took between 2 and 3 years. The Tribunal itself has complained; for example in a Decision Notice involving the Student Loans Company Limited (reference at end), the Tribunal said:

“...We are not in a position to say, and it is not for us to decide, to what extent that inordinate delay was due to lack of resources, or to deficiencies in the Commissioner’s systems of internal management, or to a mixture of those or indeed other causes. What is clear is that the volume of complaints to the Commissioner has been much higher than was predicted and, in cases where information ought to have been disclosed by the public authority, long delays in the commencement or conduct of the Commissioner’s investigations tend to frustrate the purpose of the Act and deny to the public the rights which the Act has created”.

At the end of last year, the Commissioner reported that FOI appeals were up by 29 per cent. So, even though the Commissioner is closing cases at a faster rate (34 per cent. faster in quarter 2 of 2009 compared with quarter 2 of 2008) he is effectively running hard to stand still. Hence the idea of a “quickie Decision Notice”.

The problem with this approach is that such a move could result in longer delays. For example, if a public authority or individual were to be on the receiving end of a “quicky Decison Notice”, then the likelihood of appeal to the Tribunal would in my view increase. This appeal would partly on the grounds that the “quickie” analysis underpinning the Decision Notice had not been thorough, and a mistake has been made.

In this way, the queue for a Decision Notice from the Commissioner could become less (three cheers) but the queue of appeals at the Tribunal would lengthen. The result could be more expense and delay as what has effectively happened is that the queue that causes the delay is transferred from the Commissioner to the Tribunal.

What I think is needed is not a quickie Decision Notice but rather a well supported regulator. The Government funding of a paltry £5.5 million per year for the whole of FOI is clearly inadequate for an important law that, by allowing access to information on public policy, engages individuals with the democratic process.

By restricting resources in this way, the Government is also open to the accusation of deliberately undermining the purpose of the Act by starving the regulator of the resources to keep up with demand from FOI applicants.

Reference:  Information Tribunal Appeal Number: EA/2008/0092 and Information Commissioner’s Ref: FS50126264

Comments

[Jay Libove, CISSP, CIPP]

One possible way in which this idea could work well would be to present it as an option for those who submit complaints to agree in advance to the streamlined decision process.

Alternatively, left solely to the ICO's own choice, a streamlined process could work well if used as in these three examples:

1. Your case is so utterly without merit that we won't waste our time telling you anything other than, politely, "go away". (Of course written MUCH more nicely than that, but equally briefly).

2. Your case has merit and we feel your pain, but refer to x, y, and z for self-education as to why you lose. (Again, of course written much more nicely than that).

3. Your case has various nuances, and we feel your pain and your confusion, we refer you to x, y, and z for details to understand why, pointing out specifically a, b, c, and q. (But not bothering with immensely detailed legal text, on the judgment call that this particular plaintiff, based on how he wrote his complaint, was looking for understanding rather than revenge/ a court case).

In other words, the streamlined process would be used on abusive cases, obvious cases, and non-obvious cases which do not appear likely to result in court challenge if given a clean answer.

This is a bit like the "appropriate technical safeguards" guidance included in or implied by nearly every privacy law on earth, allowing for sensible effort-setting by the responsible party. The balance against abuse or erroneous use of the streamlined process is, as in the "appropriate safeguards" case, the opportunity for the aggrieved party to appeal to tribunal.

Cheers,
Jay Libove, CISSP, CIPP