Tag: Enforcement

The ICO’s Tougher FOI Enforcement Policy 

By Martin Rosenbaum 

Last month the Information Commissioner’s Office announced it was issuing another two Enforcement Notices against public authorities with extreme backlogs of FOI and EIR requests; the Ministry of Defence and the Environment Agency. From the published notices it is clear that both authorities had consistently failed to tackle their excessive delays, despite extensive discussions over many months with the ICO. 

The ICO also issued Practice Recommendations, a lower level of sanction, to three authorities with a poor track record on FOI; Liverpool Council, Tower Hamlets Council and the Medicines and Healthcare Products Regulatory Agency. This brings the total of Enforcement Notices in the past year or so to six, and the number of Practice Recommendations to 12.
As Warren Seddon, the ICO’s Director of FOI, proclaimed in his blog on the subject, both these figures exceed the numbers previously issued by the ICO in the entire 17 years since the FOI Act came into force. 

From my point of view, as a frequent requestor, this is good news.
For requestors, the ICO’s current activity represents a welcome tougher stance on FOI regulation adopted by Seddon and also the Commissioner, John Edwards, since the latter took over at the start of last year.  

Under the previous Commissioner Elizabeth Denham, any strategic enforcement regarding FOI and failing authorities had dwindled to nothing. The experience of requestors was that the FOI system was beset by persistent lengthy delays, both from many authorities and also at the level of ICO complaints.  

The ICO’s Decision Notices would frequently comment on obstruction and incompetence from certain public bodies, as I reported when I was a BBC journalist, but without the regulator then making any serious systematic attempt to change the culture and operations of these authorities.
Under Denham the ICO had also ceased its previous policy of regularly and publicly revealing a list of authorities it was ‘monitoring’ due to their inadequate processing of FOI requests. Although this was in any case a weaker step than issuing formal enforcement notices and practice recommendations, in some cases it did have a positive effect.
Working at the BBC at the time I saw how, when the BBC was put into monitoring by the ICO, it greatly annoyed the information rights section, who brought in extra resources and made sure the BBC was released from it at the first opportunity.  

On the other hand, other public authorities with long-lasting deficiencies, such as the Home Office and the Metropolitan Police, were kept in ICO monitoring repeatedly, without improving significantly and without further, more effective action being taken against them.  

The ICO’s FOI team has also made important progress in the past year in rectifying its own defects in processing complaints, speeding things up and tackling its backlog. This led to a rapid rush of decision notices.
One result is that delay has been shifted further up the system, as the
First-tier Tribunal has been struggling to cope with a concomitant increase in the number of decisions appealed. I understand that the proportion of decisions appealed did not change, although I don’t know if the balance between requestor appeals and authority appeals has altered. 

Another consequence has been that decision notices now tend to be shorter than they used to be, especially those which support the stance of the public authority and thus require less interventionist argument from the ICO. Requestors may need to be reassured that the pressure on ICO staff for speedier decisions does not mean that finely balanced cases end up predominantly being decided on the side of the authority.  

More generally I gather there is some concern within the ICO about its decisions under sections 35 and 36 of FOI, to do with policy formulation and free and frank advice, that some staff have got into a pattern of dismissing requestors’ arguments without properly considering the specific circumstances which may favour disclosure. 

As part of its internal operational changes, a few months ago the ICO introduced a procedure for prioritisation amongst appeals and expediting selected ones. I have seen the evidence of this myself.  A complaint I made in April was prioritised and allocated to a case worker within six weeks and then a decision notice served within another six weeks (although sadly my case was rejected). All done within three months.  

On the other hand a much older appeal that I submitted to the ICO in May 2022 has extraordinarily still not even been allocated to a case worker 15 months later, from what I have been told. This is partly because it relates to the Cabinet Office, which accounts for a large proportion of the ICO’s oldest casework and has been allowed a longer period of time to work through old cases.  

It is interesting to note that the ICO does not proactively tell complainants that their case has been prioritised, even when they have specifically argued it should be at the time of submitting their complaint.
The ICO wants to avoid its staff getting sucked in to disputes about which appeals merit prioritisation. If you want to know whether your case has been prioritised, you have to ask explicitly, and then you will be told. 

The ICO has not yet officially released any statistics about the impact of its new prioritisation policy. However I understand that in the first three months about 60 cases were prioritised and allocated to a case officer to investigate within a month or so. This is a smaller number than might have been expected.  

Around 80 percent of these were prioritised in line with the criterion for the importance of the public interest involved in the issue. And about 60 percent of decisions to prioritise reflected the fact that the requestor was in a good position to disseminate further any information received, possibly as a journalist or campaigner. 

In most of the early decision notices for prioritised complaints the ICO has backed the authority and ruled against disclosure. So if you are a requestor, the fact that the ICO has decided to prioritise your appeal does certainly not mean that it has reached a preliminary decision that you are right.  

Martin Rosenbaum is the author of Freedom of Information: A practical guidebook. The book is aimed at requestors and provides thorough guidance on the workings of the law, how best to frame requests and how to challenge refusals. It will also be valuable to FOI officers and others who want a better understanding of the perspective of requestors. In the book Martin passes on the benefits of all the expertise and experience he acquired during 16 years as the leading specialist in BBC News in using FOI for journalism. 

Data Protection Officers and Conflicts of Interest

In May 2018, with the implementation of GDPR, some senior managers (and many junior ones) found themselves thrown into the then unknown statutory role of Data Protection Officer (“DPO”). Two years on, some now have a better understanding of their role whilst others are still battling to manage the many different requirements of the job.

Articles 38 and 39 of the GDPR outline the role of the DPO. They should, amongst other things, be:

  • involved in data breach discussions and investigations whilst being provided with adequate resource to fulfil their obligations;
  • not dismissed for the performance of their duties as DPO;
  • able to offer secrecy and confidentiality to data subjects in relation to data protection matters within the organisation; and
  • actively involved and consulted on the data processing risks associated to proposed data processing activities within the organisation, which are usually highlighted within the Data Protection Impact Assessment (DPIA).

The law is still in its infancy, and remains largely untested in the courts, but a recent case may lead to a few DPOs feeling a little nervous about their role.

€50,000 Fine

The Belgian Data Protection Authority recently issued a €50,000 fine to an organisation after it ruled that the organisation’s DPO had a conflict of interest under Article 38(6) of GDPR. The DPO had been employed by the organisation as the Head of Compliance, Risk Management and Audit in addition to acting as DPO.

A reportable data breach lead to an investigation by the Belgian regulator who sought to dig a little deeper into the organisation’s general approach to privacy compliance.
The investigation focussed on three main potential infringements of GDPR namely:

  1. The duty to cooperate with the data protection authority
  2. The accountability obligations of the organisation in relation to data breach notifications and data protection risk assessments
  3. The requirements related to the position of the DPO

The investigation found that the organisation’s DPO appointment failed to meet the requirements of the legislation as the individual was responsible for the processing of personal data in the areas of compliance, risk and audit and therefore could not independently advise on such matters.

Many data protection experts have interpreted this ruling as preventing any employee who is a “head of department” from carrying out the DPO rule without a conflict of interest, although the situation is not as clear cut.

Conflict of Interests

Whilst the employer will pay their salary, the DPO must be able to act independently and without fear or favour. The Article 29 Working Party’s Guidelines on DPO’s makes reference to a number of roles which would be considered to pose a conflict of interests with the position of DPO namely; Chief Executive, Chief Operating Officer, Chief Financial Officer, Chief Medical Officer, Head of Marketing, Head of HR and Head of IT.
All of these roles involve a significant amount of personal data processing and decision making, resulting in an impossible independent standpoint to be taken on data matters arising as a result.

This ruling presents an opportunity for organisations to review their DPO position.
Both the organisation and the individual must be clear about the role. The job description should be reviewed from time to time in the light of changing roles and responsibilities. This may flag up potential conflicts of interest.

It is common for DPOs, especially in the public sector, to wear many “hats” due to budget constraints. Whilst GDPR does allow this, if there is any doubt about a conflict of interests, the decision-making process should be documented and the position reviewed.
If any mitigating measures are to be put in place to reduce the risk of conflict these should be outlined and reviewed periodically as new risks and processing activities are presented to the organisation.

Data protection and privacy is an ever-changing area of compliance and in the coming years, more case law will be generated as the principles of the legislation are put to the test. With the end of the Brexit transition period approaching and changing uses of technology due to the global coronavirus pandemic, organisations will need to remain alert to potential issues arising from their original GDPR implementation plan.

Samantha Smith is a Data Protection Manager and qualified Solicitor with experience of data protection compliance projects across both public and private sectors. This and other GDPR developments will be covered in our new online GDPR update workshop. Our next online  GDPR Practitioner Certificate course is  fully booked. A few places are left  on the course starting in August.

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