Freedom of Information Requests During the Coronavirus Pandemic
The coronavirus (COVID-19) pandemic means areas such as information requests are likely to have been low-priority for public authorities, but beware - the Information Commissioner's Office (ICO) position has now changed.
It will be important to bear this in mind when prioritising requests going forward.
The ICO's Statement on Freedom of Information (FOI) Requests
The ICO had previously stated that whilst, as a regulator, it is unable to formally extend time limits under the GDPR, Freedom of Information Act and Environmental Information Regulations, it would take a more relaxed approach to time limits. As the pandemic has unfolded and extended into the autumn the ICO has kept its approach under review, and in September it published some updated guidance for organisations:
"Where public authorities have complaint backlogs, we expect organisations to establish recovery plans focused on bringing the organisation back within compliance with the Freedom of Information Act within a reasonable timeframe. Where these backlogs pre-date the public health emergency, we may also unpause formal monitoring and regulatory action that was in train before the crisis."
The section quoted above confirms that the ICO's previously relaxed position has been altered, and indicates that the ICO is expecting organisations to start clearing the backlog and re-diverting resources back to request handling and assisting individuals in exercising their rights.
What Does This Mean for Public Authorities?
This means that the ICO is now expecting public authorities to deal with requests in a timely manner, including those made under the GDPR, Freedom of Information Act and the Environmental Information Regulations. In particular, where you have historic requests which predate the pandemic then these should be prioritised, to ensure that individuals are able to exercise their rights.
If you are struggling to keep up with requests, it remains important to keep the requestor updated. Explain that you are unlikely to be able to deal with their request within the usual timescale, and try and give a realistic estimate as to when you might be able to respond. It will assist you to have collated some evidence to support your estimate, and ensure that it is both reasonable and realistic, particularly as the ICO starts to open up its complaints process more fully.
The ICO has also taken the opportunity to remind public authorities of the importance of regularly publishing certain types of information, as this can ease the regulatory burden of responding to FOI requests. Its guidance states that:
"As public authorities continue to support the economy throughout this crisis, we will continue to encourage them to proactively publish information they know will be of importance to their communities."
It's likely that you will be receiving requests about your response to the crisis, and how you have acted and dealt with particular situations. Whilst responding to these questions inevitably takes time and resource, you should consider the public interest in the information that you are being asked to provide, and whether that public interest means that you should prioritise a response. We recommend that you have a system of triage, so that you can identify the more routine requests, and requests that are not time sensitive and prioritise requests on that basis.
What Should You Do Now?
- The legal obligation to deal with any information request that you receive has always remained in in place, and you are, and have always been, required to provide a response. The ICO has now changed its regulatory approach, and public authorities should seek to respond to requests in a timely manner and as close to the deadline as possible.
- You will now need to turn your attention to dealing with any backlog of requests that may have built up over the course of the past six months. The ICO expects resources to turn their attention back to the requests that have been received.
- To assist you with FOI requests in particular public authorities should consider proactively publishing some information to make it readily available to the public.