Tribunal criticises ICO delays again

The Information Tribunal has again criticised the Information Commissioner's Office for delay in investigating a Freedom of Information complaint. In Export Credits Guarantee Department v IC (EA/2009/0021), the Tribunal said:

Other matters

119. While not a matter that has any bearing on the issues we have to decide, we think it appropriate to comment on the inordinate delay by the Commissioner in this case. As detailed above, although the Commissioner informed ECGD of the complaint by letter dated 22 August 2006, and although FOE requested an update on 5 December 2006, it appears that no case officer was allocated to this complaint until May 2008. It then took a further nine months for the investigation to be concluded as the Decision Notice was not issued until 23 February 2009. There is a suggestion that the Commissioner was delaying commencing an investigation into this complaint pending the outcome of other cases involving KSA before this Tribunal.

120. However, in the Decision Notice, the Commissioner refers to this delay; “Regrettably, due to the heavy workload at the Commissioner’s office, the investigation into the complaint did not get underway until Spring 2008.” It is clear, therefore, that the delay was not pursuant to any policy to wait for the decision in another case but rather that no steps were taken to fulfil the Commissioner’s statutory duty under section 50 of FOIA until approximately 20 months had elapsed since the complaint was made.

121. Concerns have been raised by differently constituted Panels of this Tribunal that such inordinate delays seriously undermine the operation of FOIA. While we are not in a position to identify the cause, or causes, of the delay in this case, we consider that it was excessive and cannot properly be justified by the Commissioner. The delay has meant that this Appeal was not heard until four years after the request for information was made and CAAT has still not received the information that we consider it is entitled to. There do not appear to be any effective methods by which CAAT, or any other Requestor, could challenge the delay by the Commissioner and force him to act in a timely manner. This completely and unacceptably undermines the spirit of FOIA and the general right of public access to information held by public authorities.

The Tribunal dismissed the ECGD's appeal which involved a request by the Campaign Against Arms Trade for a copy of the ECGD Underwriting Committee's assessment of the Al Yamamah deal with Saudi Arabia.

The ICO ruled that the ECGD was correct to withhold some of the information under s.27 (international relations) and s.43 (commercial interests), but that although the exemption in s.36 was engaged, the public interest in maintaining the exemption did not outweigh the public interest in disclosure of the information. The ECGD appealed the ICO's decision on s.36.

The Tribunal concluded that the ICO was right to decide that the public interest in maintaining the exemption did not outweigh the public interest in disclosure:

"107. It therefore is our conclusion that there is significant public interest when a government department underwrites an "arms deal" with public money, in understanding how that decision is made, in the process of how a public authority reaches decisions of importance, and in understanding how a public authority approaches a decision involving KSA, including a situation where the Serious Fraud Office was conducting an investigation."

Earlier post 'Information Tribunal criticises ICO delays' is here.