Freedom Of Information: Government breaches right-to-know laws

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Andrew Feinberg

White House Correspondent

A common accusation against ministers since the Freedom of Information Act (FOI) came into force is that they have ignored the the public interest in order to protect sensitive information. So it is perhaps appropriate that an executive agency of the very department responsible for the legislation should be the first recipient of a practice recommendation from the Information Commissioners' Office (ICO).

According to a review carried out by the watchdog, the Government has breached its own legislation, with the National Offender Management Service (Noms) "repeatedly failing to respond to information requests in line with its obligations under the FOI".

Central to this has been the policy of subjecting requests to prolonged public interest tests (PIT). The ICO's audit revealed that Noms appeared to be extending the time limit for considering PITs "as a matter of course", citing 61 separate instances. Not only were the review processes for some cases dragged out for 29 months, but a significant number of these guideline breaches were committed while the department was a part of the Home Office.

More discouraging still is the lack of openness displayed by Noms over the causes of such procrastination. Though no public authority is obliged under the Act or Code of Practice to explain the reasons behind PIT-related delays, the ICO has reaffirmed its view that to do so would be good practice. Indeed, these delays may have discouraged requesters from pursuing their claims for information legally available to them, the ICO charged.

As the Liberal Democrat shadow Solicitor General David Howarth explains: "Noms' approach has too often been to delay and then wrongly to give applicants the impression that they are in a Catch-22 situation that leaves them without rights."

So what is to be done? The ICO has issued Noms with a recommendation, rather than an order, that it needs to conduct a review into how it deals with FOI requests, including increasing the number of employees dealing with them, if necessary, and ensuring they are adequately trained.

While maintaining that it has a responsibility to make sure information concerning prison security is not inappropriately released, the Ministry of Justice has welcomed the IOC's "helpful suggestions", pledging to "take steps immediately to implement these recommendations".

However, such recommendations serve as nothing more than a reminder of the Government's obligations under FOI. What has once again been highlighted is what Mr Howarth has labelled the "internal culture of resistance to freedom of information" among civil servants. Only once the readiness of public bodies to make use of opt-out clauses and delaying tactics is fully addressed will the FOI laws fully live up to the promises of Labour's original manifesto pledges.