FOI enforcement notices, information notices and practice recommendations (2024)

Section 48 of the Freedom of Information Act (FOIA) empowers the information Commissioner (the Commissioner) to issue a practice recommendation where it appears to him that a public authority has failed to conform, specifically, to the FOIA Codes of Practice. These failures are addressed in the recommendations section below. Section 47 of FOIA also makes clear that the Commissioner has a duty to promote the following of good practice beyond just the requirements of the Codes of Practice.

In July 2023, the Commissioner engaged with the Post Office, following concerns raised about its FOI performance. The Post Office proactively engaged with the Commissioner, acknowledging its drop in compliance due to an increase in FOI requests. For June - July 2023, the Post Office’s compliance rate was 52%. The Post Office’s performance steadily improved. In September 2023 it increased to 67%, in November 2023 to 84% and then in December 2023 to 90%. For the period of January – April 2024, it’s compliance once again fell to 50%.

The underlying reason behind the drop in compliance is due to an overwhelming increase in requests due to the Post Office Horizon IT inquiry. The statutory inquiry has led to increased scrutiny of the Post Office in the media including extensive television coverage.

Despite the unique circ*mstances the Post Office faces, the Commissioner remains concerned that its compliance can steadily improve and then fall so significantly. The Commissioner has reached the view that the Post Office’s request handling practices do not conform to part 4 of the section 45 Freedom of Information Code of Practice, issued by the Cabinet Office in July 2018 (the Code).

Since 2019 and the advent of the COVID 19 pandemic, the Department for Education (DfE) has had a declining level of performance overall in terms of the timeliness of its responses to requests for information. The statistics published on the FOIA performance of central government bodies show that DfE has responded to less than 80% of requests within the statutory timeframe in 2020, 21 and 22. As recently as November 2023, DfE advised the Commissioner that it was responding to just 75% of requests within the required time limit.

DfE is taking action, however, and has reported that senior level interest in FOIA has had a positive impact on its performance recently. Amongst other FOIA support it now offers its staff, DfE has developed and is rolling out relevant training. The age profile of requests where responses are overdue isn’t high overall, although one response was reported as being more than 12 months overdue at January 2024. The Commissioner’s staff have engaged with DfE about the underlying reasons for its failure to lift its overall response rate to an acceptable and sustained level of compliance. Improvements have been made as outlined above and early data from 2024 has seen performance creep up to 81%. Given the timeliness issues DfE has experienced over what is now a prolonged period, however, it’s clear that DfE’s request handling practices does not consistently conform to Part 4 of the section 45 Freedom of Information Code of Practice, issued by the Cabinet Office in July 2018 (the Code).

Prior to 2021 MHRA had manageable levels of information requests and systems in place which were sufficient to cope with those volumes. However, volumes and the complexity of information requests (especially with the introduction of covid vaccines) has increased from 2021/2022 onwards and it has become increasingly apparent that its systems and procedures are no longer fit for purpose or sufficient to meet increased volumes and increasing levels of complexity.

MHRA has therefore shown a declining trend in performance in terms of the time limits for complying with information requests. It has also consistently failed to carry out internal reviews within the recommended timeframes. Following engagement by his staff with MHRA about the underlying reasons for these failings, the Commissioner has reached the view that MHRA’s request handling practices do not conform to parts 4 and 5 of the section 45 Freedom of Information Code of Practice, issued by the Cabinet Office in July 2018 (the Code).

Data from the ICO’s casework and NHS England’s statistics showed that it was failing to respond to a significant volume of information requests within the statutory time limit.

The Commissioner is also concerned about a failure to carry out internal reviews. The Commissioner has reached the view that NHS England’s request handling practices do not conform to parts 4 and 5 of the section 45 Freedom of Information Code of Practice.

Section 48 of the Freedom of Information Act (FOIA) empowers the information Commissioner (the Commissioner) to issue a practice recommendation where it appears to him that a public authority has failed to conform, specifically, to the FOIA Codes of Practice. These failures are addressed in the recommendations section of the practice recommendation. Section 47 of FOIA also makes clear that the Commissioner has a duty to promote the following of good practice beyond just the requirements of the Codes of Practice. The wider concerns the Commissioner has in this case are addressed in the “Other matters” section of the practice recommendation to keep them distinct from the Section 48 related recommendations he has made.

In respect of the FOIA cases submitted to the Commissioner for a decision, the Department for Work and Pensions (DWP) has had a consistently poor level of performance in terms of its request handling, specifically in relation to determining whether information is held and the conduct of internal reviews. This has been highlighted in those cases where it has been necessary for the Commissioner to intervene in order to ensure DWP’s compliance with FOIA. Following engagement by his staff with DWP about the underlying reasons for these failings, the Commissioner has reached the view that DWP’s request handling practices do not conform to parts 1, 5 and 10 of the section 45 Freedom of Information Code of Practice, issued by the Cabinet Office in July 2018 (the Code).

Section 48 of the Freedom of Information Act (FOIA) empowers the information Commissioner (the Commissioner) to issue a practice recommendation where it appears to him that a public authority has failed to conform, specifically, to the FOIA Codes of Practice. These failures are addressed in the recommendations section of the practice recommendation. Section 47 of FOIA also makes clear that the Commissioner has a duty to promote the following of good practice beyond just the requirements of the Codes of Practice. The wider concerns the Commissioner has in this case are addressed in the “Other matters” section of the practice recommendation to keep them distinct from the Section 48 related recommendations he has made.

In respect of the FOIA cases submitted to the Commissioner for a decision, the Department for Work and Pensions (DWP) has had a consistently poor level of performance in terms of its request handling, specifically in relation to determining whether information is held and the conduct of internal reviews. This has been highlighted in those cases where it has been necessary for the Commissioner to intervene in order to ensure DWP’s compliance with FOIA. Following engagement by his staff with DWP about the underlying reasons for these failings, the Commissioner has reached the view that DWP’s request handling practices do not conform to parts 1, 5 and 10 of the section 45 Freedom of Information Code of Practice, issued by the Cabinet Office in July 2018 (the Code).

Since 2020 The National Archives (TNA) has shown a declining trend in performance in terms of the time limit for complying with information requests, despite the occasional quarterly improvement. This has been highlighted by recent figures showing a further fall that is not simply attributable to the pandemic. In many instances TNA has been unable to meet the statutory timeframe for responding to requests that relate wholly or partly to archived information. In 2022, according to the FOI statistics published on the GOV.UK website, there was a significant drop (below 60%) in compliance from previous highs of over 70% during the worst of the pandemic and well in excess of 90% in 2017 and 2018.

Following engagement by his staff with TNA about the underlying reasons for these failings, the Commissioner has reached the view that TNA’s request handling practices do not conform to Part 4 of the section 45 Freedom of Information Code of Practice, issued by the Cabinet Office in July 2018 (the Code).

Whilst the Commissioner has decided to make this practice recommendation, he wants to acknowledge the very real constraints that TNA has been operating under in the last few years. TNA is obliged to consult with whichever is the ‘responsible authority’ for a record that has been transferred. This can result in delays in such matters as carrying out the public interest test when the exemption is qualified. TNA (and not the authority consulted) has the duty to comply, but their performance is affected by the timeliness (or lack thereof) of the bodies it is required to consult with.

The Commissioner recognises that TNA is also facing a very specific challenge following its agreement to take a significant number of military personnel files that are in the process of being transferred from the Ministry of Defence (MoD). It is planned for these records to be transferred over six years, with around four million (of almost 10 million) records having been transferred so far. TNA describes this process as “the biggest and most complex transfer of public records in our history”. These records require preserving and storing safely to archival standards. The records are closed until 115 years after the individual service personnel’s date of birth. This material includes personal data (and special category data) which needs to be assessed as to whether it can be open or closed fully/in part. At the same time the records are subject to information requests which TNA projects will increase to 6000 in 2023, solely for this collection, effectively tripling the usual rate of requests TNA receives. The Commissioner is aware that the transfer of these records has seriously impacted on TNA’s ability to meet its statutory obligations under the FOIA and has taken this into account as part of his considerations.

Section 48 of the Freedom of Information Act (FOIA) empowers the information Commissioner (the Commissioner) to issue a practice recommendation where it appears to him that a public authority has failed to conform, specifically, to the FOIA Codes of Practice. These failures are addressed in the recommendations section below. Section 47 of FOIA also makes clear that the Commissioner has a duty to promote the following of good practice beyond just the requirements of the Codes of Practice. The wider concerns the Commissioner has in this case are addressed in the “Other matters” section below to keep them distinct from the Section 48 related recommendations he has made.

Three Rivers District Council (the Council) has had a consistently poor level of performance in terms of its response times to FOIA requests as well as demonstrating poor engagement with the Commissioner. This has been highlighted by the number of complaints about response times submitted to the Commissioner as well as the lack of communication from the Council when case officers, on behalf of the Commissioner, have been in contact to raise such issues. The Commissioner has reached the view that the Council’s request handling practices do not conform to part 4 of the section 45 Freedom of Information Code of Practice, issued by the Cabinet Office in July 2018 (the Code).

Data from the ICO’s casework and the London Borough of Hackney’s (the Council’s) statistics showed that the Council was failing to respond to a significant of information requests within the statutory time limit. For the first six months of 2022 on average only 64% of requests were responded to within these time limits.

The ICO acknowledges that the Council has begun to implement measures designed to address these performance issues. However, the situation has not improved sufficiently and the practice recommendation finds that the Council’s practices do not conform to the Freedom of Information Code of Practice.

The practice recommendation sets out the steps the Council should take including the development of an action plan detailing how it will improve its performance. It also makes clear that this plan should be published.

In response to the notices that we issued, the Department of Health & Social Care (DHSC) sent out a questionnaire to a wide range of staff to identify information that may be caught within their scope. As part of this exercise, DHSC notified us that it had identified that official information had been shared through:

• 29 private WhatsApp accounts;
• 17 private text accounts;
• 8 private email accounts; and
• 1 private Linkedin account

1. Following a number of complaints regarding Sussex Police’s handling of freedom of information requests, the Information Commissioner has reached the view that Sussex Police’s request handling practices do not conform to the section 45 Freedom of Information Code of Practice, issued by the Cabinet Office in July 2018 (the Code).
2. The Commissioner considers that Sussex Police’s practices do not conform with the following sections of the Code
   • Part 2 – Advice and assistance – clarifying requests
   • Part 4 – Time limits for responding to requests
   • Part 5 – Internal reviews
   • Part 10 – Communicating with requesters
3. Therefore, in accordance with section 48(1) of the Freedom of Information Act 2000 (FOIA), the Commissioner has elected to issue this practice recommendation.
4. In the ‘Other matters’ section of this recommendation, the Commissioner has highlighted matters which do not fall within the scope of the Code, but which bear, more generally, on Sussex Police’s compliance with FOIA. Accordingly, those elements of this recommendation are issued under section 47(2) of FOIA.in ’s request with

Following a number of recent complaints regarding freedom of information requests made to the London Borough of Waltham Forest (LBWF), the Information Commissioner has reached the view that the LBWF’s request handling practices do not conform to the Freedom of Information Code of Practice, issued by the Cabinet Office in July 2018 (the Code).

In particular, the Commissioner considers that the LBWF’s practices have not conformed with the following parts of the Code:

• Part 1 – Right of Access, Information
• Part 1 – Right of Access, Means of communication
• Part 4 – Time limits for responding to requests
• Part 5 – Internal reviews
• Part 6 – Cost limit

Therefore, in accordance with section 48(1) of the Freedom of Information Act 2000 (the FOIA), the Commissioner has elected to issue a practice recommendation (hereafter “recommendation”).

In the ‘Other matters’ section of this recommendation, the Commissioner has highlighted matters which do not fall within the scope of the Code, but which bear, more generally, on the LBWF’s compliance with the FOIA. Accordingly, those elements of their recommendation are issued under section 47(2) of the FOIA.

Section of Act/EIR and Finding:FOI 48(1), FOI 47(2)