The ICO shouldn’t decide what a S50 assessment is about

Section 50 of the Freedom of Information Act gives requesters the right to ask the Information Commissioner to decide if a public authority’s handling of the requester’s Freedom of Information Request is in compliance with the Act.

Application for decision by Commissioner.

(1)Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.

Here’s the bit I’m interested in: (my emphasis)

Any person … may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance…

I don’t think the Commissioner complies with this, and I think she / her office should.

Here’s a current example, in which the ICO is refusing to decide whether an authority’s handling of my request complied with the Act in my specified respect – whether they were correct to use the S43 exemption:

In January 2015, as part of my campaign to make Leonard Cheshire pay carers the living wage, I put in Freedom of Information requests to many councils for details of how much they pay care providers including Leonard Cheshire. Surrey Council (alone, out of the 172 I surveyed) maintained that the S43 exemption (Commercial Interests), partly because they were currently undertaking a review of care home contracts.

In February 2016, on the assumption that the review would be over, I sent a new request for the original data. Their dilatory response of 19 April 2016 cited S43 again. I requested an internal review; their usual dilatory response of 21 July 2016 upheld S43.

On 29th June 2016, I sent the ICO a S50 request. It read, in its entirety,

Hello

Please can you conduct a S50 request:

https://www.whatdotheyknow.com/request/surrey_council_leonard_cheshire

1) failure to respond within 20 working days

2) inappropriate reliance on S43

I have given them every opportunity to respond, including requesting
an internal review, but they have neglected to so so.

Thank you

Doug Paulley

After Surrey had completed their internal review, the ICO contacted me to ask if I was still unhappy. I emailed them on 23rd July to say that I was most definitely still unhappy about their use of the commercial interests exemption and repeated my request for a S50 assessment. The ICO appointed an investigator, who emailed me on 20th September 2016, stating:

The focus of my investigation will be to determine whether the Council is entitled to rely on section 43(2) as a basis for withholding the information described in your requests

I was entirely clear in my initial S50 request, and throughout all following correspondence, that my S50 request was about their use of S43. I initially included their failure to respond within the deadline, but still it was clear throughout, and in both my S50 requests, that my concern was about the authority’s illegitimate use of S43.

On 6th February 2017 (nigh on a year after the request) Surrey Council released info that arguably satisfied the request:

Following on from the email below and subsequent correspondence with the Information Commissioner, given the passage of time, we are now able to confirm…

The Information Commissioner’s Office emailed me to say they would drop their investigation.

Surrey Council has now sent me a copy of an email it sent to you disclosing the range of fees for LCD as at the date of your request. This would appear to satisfy your request and I therefore now propose to close this case as having been informally resolved.

(One wonders if the Act allows them to unilaterally decide not to complete the S50 assessment.)

I wasn’t happy with this. I stuck to my guns on the S50 assessment. However the ICO then refused to look at the use of S43:

I will do a decision notice. It will be on the narrow issue of Surrey Council’s delay in providing the information to you.

I said: hang on, my S50 request was about their use of S43:

I appreciate your position, but it is clear that the substantial delay was caused by the authority’s inappropriate and prolonged reliance on the exemption. If you hadn’t intervened they wouldn’t have responded at all because they would have maintained that exemption. Writing a decision notice solely on the a time limit issue is disingenuous.

When I sent you my S50 request, back on June 29 2016, I asked you to conduct a S50 assessment into “1) failure to respond within 20 working days 2) inappropriate reliance on S43.”

I didn’t ask you to take 7.5 months to persuade the authority to release the information, then to count the case as closed; then on my remonstration to write a decision notice solely about their delay in response. I asked you to do a DN about their delay, and the fact that they inappropriately used S43.

I appreciate you always prefer an informal resolution to requests as being better all round, but in this case it’s not acceptable. They are dodging the issue by saying that the time since the request has meant they can release the information. This gives me no confidence whatsoever that when I ask for updated information they will supply the information.

Don’t just do a DN about delay. Do it on their S43 refusal also.

Once again the ICO flat refused:

I consulted with senior colleagues regarding your concern about the position I set out for you: namely, that we will do a decision notice addressing the delay in response. They have agreed with my position and I do not intend to change my approach.

If you wish to challenge the scope of our decision notice in that regards, you will be able to appeal the decision notice to the First-tier Tribunal (Information Rights).

I quoted S50 again, and in no uncertain terms set out what I believe is the Information Commissioner’s obligation in the Act:

I require the Information Commissioner to make a decision as to whether the authority’s reliance on the S43 exemption was legitimate. As the complainant, I specify that specific: that is my “specified respect”.

I appreciate that you have asked your seniors, but frankly they are not infallible and in this instance they are wrong. The Information Commissioner does not have the ability to pick and choose whether to respond to the “respect” specified by the complainant.

Please register and investigate a complaint under your complaint procedures that the Commissioner is refusing to comply with her legal obligation set out in the Act to make a determination as to whether the authority was legitimate in refusing to provide the Information for 11 months because they believed S43 was engaged.

Should the Commissioner either not respond to this complaint, or respond but not rescind the decision to ignore the respect I specified, I will apply for a judicial review, in order to ensure that the decision notice addresses the specific point I raised and to ensure that the Commission re-evaluates their obligations set by the Act.

But the Commissioner’s office still refused.

Thank you for your further comments. I will ensure that your comments are passed on to my line manager, [name redacted], who is a Group Manager at the ICO. However, I should be grateful if you would complete our complaints form…

I will, in the meantime, continue to draft a decision notice in the terms previously explained. I acknowledge that you disagree with the scope I have outlined.

I shall send the complaint; and, given that she is continuing to draft the decision notice, I will apply for judicial review; and when they issue the decision notice, I will go to the FTT if need be. But I must say I do think this is ridiculous.

I was perfectly clear all along that my S50 application was for an IC determination as to whether the authority’s use of the S43 exemption was engaged. S50 states that the ICO must decide whether the authority’s actions were compliant with the Act “in any specified respect”. To my mind, the IC is not legitimate in deciding for themselves what they will and will not decide.

I don’t know the Tribunal and Appeal Court decisions in this area – but to me the law is clear, and the IC are wasting their ever-dwindling resources fighting my request for no good reason…

…Or am I barking up the wrong tree?!