Case Reference: FT/EA/2024/0140
Information Rights
Decided without a hearing
Before
JUDGE KIAI
MEMBER WOLF
MEMBER SAUNDERS
Between
BRISTOL CITY COUNCIL
Appellant
and
INFORMATION COMMISSIONER
Respondent
Representation:
Decision: The appeal is Dismissed.
REASONS
Preliminary Issue
This case was listed to be determined on the papers on 20th March 2025, before a panel consisting of Judge Kiai, Panel Member Saunders and Panel Member Wolf.
On that same day, directions were sent out to both parties explaining that:
‘In 2024, Panel Member Wolf acted as a consultant with ‘Act Now’, a company that provides specialist FOI and EIR training to delegates from a wide variety of public authorities (normally individuals who were just starting out). For data protection reasons, she does not keep a copy of the delegate lists. Panel Member Wolf raised the possibility that she may have trained somebody from Bristol Council at some point, albeit she did not think she had. She did not recognise any of the names on the Bristol City Council correspondence and was as confident as she could be, that she had not. Nonetheless, she very fairly, raised this as a potential issue.
My preliminary view is that there is no conflict of interest and no bias/appearance of bias. Nonetheless, as a matter of fairness, the parties are given an opportunity to submit any representations that they may wish to make. Both parties are granted 7 days (28th March 2025) to make any written representations on this issue. The matter is reserved to myself, until this issue is resolved.
If there are objections and these are upheld, the case will be listed before a fresh panel.
If there are no objections or any objections are not upheld by the Tribunal, a decision will be promulgated shortly’.
On 21st March 2025, the Council replied that it had no objection to Panel Member Wolf remaining on the panel. They further confirmed that the officer actively running the appeal had never attended any training by “Act Now” and as such did not believe that he had ever been in receipt of training from Panel Member Wolf.
On 26th March 2025, the ICO replied that it had no objections to Tribunal panel member Wolf remaining on the panel determining the appeal.
We were very grateful for the responses from both parties. I find that there is no conflict of interest and no bias/appearance of bias. As such we have gone on to decide the case.
Background
The ICO issued the Council with an Enforcement Notice under s.52 FOIA, in relation to:
The Council’s non-compliance with s.1(1) FOIA;
Continuing breach of section 10(1) FOIA.
The ICO states in the Enforcement Notice that:
‘8. The Council has consistently been one of the public authorities within the local government sector about which the Commissioner has received the most FOI complaints in recent years. The Commissioner has received 62 complaints about the Council since 1 April 2023. Many of the complaints include a timeliness breach as the request had not been responded to within the statutory time limit’.
On 30th August 2023, the ICO issued a Practice Recommendation to the Council under s.48 FOIA. In this, the ICO recommended the Council to take specific steps to improve the timeliness of its responses to information requests, namely:
‘The Council should ensure that requests for information are responded to in a timely manner. When chased to issue responses by the Commissioner’s Case Officers, the Council should respond in a timely and appropriate manner. This will avoid unnecessary decision notices and the subsequent further delays for the requesters.
The Council should use the Commissioner’s FOI self-assessment toolkit to improve its timeliness compliance.
In accordance with part 8.5 of the Code, the Council should publish its information access request statistics and make these easily accessible on its website. The statistics should include the number of information access requests that have not been processed and the number of completed requests where the processing took longer than 20 working days.
The requests handling procedures should include provision for when a response is late, or is likely to be late at any stage of the internal processes, it is clear when and to who to escalate, who is responsible for taking action, the action they will need to take and by when.
The Council must ensure that its information rights training is sufficient to ensure that it has adequate coverage in place in order that request handling times do not fall below a compliant level in the event of the departure of key staff members.
The Council should create an action plan incorporating any recovery plan already in development, with appropriate processes out into place to ensure 90% timeliness is achieved by the end of December 2023. This action plan should be supported by a ‘lessons learned’ exercise, which examines the root cause of delays from allocation through to clearance at different stages, with mitigations for any recurring problems addressed specifically in the plan’.
Under the heading ‘Reasons for issuing this Practice Recommendation’ it stated:
‘The Council has consistently been one of the public authorities within the local government sector about which the Commissioner has received the most FOI complaints in recent years. Between 1 April 2022 and 15 August 2023 the Commissioner received 61 complaints about the Council. The Commissioner also received a significant number of complaints about the Council in the years immediately preceding this. Many of the complaints the Commissioner has received included a timeliness breach as the request had not been responded to within the statutory time limit.
The Council’s own figures show that, for the month of June 2023, only 56% of requests where [sic] responded to within the time for compliance. The Council has also confirmed that of 20 July 2023, its response was overdue to 147 FOI requests in total. Of these 147 requests, 39 exceeded the statutory limit by up to 20 days, 96 exceeded the statutory limit by between 21 and 100 days, and 12 exceeded the statutory limit by over 100 days’.
On 9 January 2024, the Council provided an update to the Commissioner. It confirmed that its timeliness rate had improved, being 81% for November 2023. It also informed the Commissioner of a backlog of 165 information requests.
On 9 February 2024, the ICO wrote to the Council to request a copy of its action plan for clearance of its information request backlog. The Council provided this on 22nd February 2024.
The Notice
On 14th March 2024, the ICO issued an enforcement notice. It stated:
‘13. The Commissioner has reviewed the action plan provided by the Council on 22 February 2024. In this the Council confirmed that:
· The current FOIA backlog was 158 requests, the oldest of which was received on 17 January 2023. Of these 158 requests, 124 were received in the 2023 calendar year, and 34 were received between 1 January 2024 and 21 February 2024.
· An action plan had been devised, based on the allocation of staff resources. In this action plan the Council calculated that it would take 39 months to clear the FOIA backlog.
The Commissioner notes that there has been no improvement in the FOIA backlog since he issued a Practice Recommendation to the Council, on the contrary he notes that this is now higher than that cited in the Practice Recommendation (147 requests). Furthermore, the suggested action plan would require over 3 years to clear the backlog and ensure that requesters receive responses to their FOIA requests; the Commissioner does not consider this timescale to be reasonable.
Taking into account the significant volume of unanswered requests, their age profile, the need for significant and sustained improvement in timely responses and that these improvements were not forthcoming following the issuing of the Practice Recommendation, the Commissioner considers it a proportionate regulatory step to issue an Enforcement Notice to the Council.
This Notice requires the Council to comply with section 1(1) of FOIA in respect of each FOIA request, where the response is outside of 20 working days at the date of this Notice, and where a permitted extension of a maximum of a further 20 working days has not been applied.
The Commissioner also considers it a proportionate regulatory step to require the Council to devise and publish an action plan that details how it will comply with this Notice. This action plan should formalise measures to mitigate delays in responding to the requests it receives, in line with statutory requirements. This action plan should be supported by a ‘lessons learned’ exercise, which examines the root cause of delays to responding to information requests, from allocation through to clearance at different stages, with mitigations for any recurring problems addressed specifically in the plan.
In complying with this Notice, the Commissioner reminds the Council that it should continue to ensure that appropriate resources are available so that it meets the requirements of all information rights legislation to which it is subject. This includes handling new information requests under the FOIA in a timely way, and its duties under the under the Data Protection Act 2018 including responding to subject access requests promptly.
The Commissioner also considers that the Council may benefit from using his self-assessment toolkit which is designed to help public authorities assess their current FOI performance and provide indicators of where efforts should be focused in order to improve. Topic 1 is particularly relevant as it deals with timeliness
….
TERMS OF THE ENFORCEMENT NOTICE
THIS NOTICE REQUIRES BRISTOL CITY COUNCIL TO TAKE THEFOLLOWING STEPS BY NO LATER THAN SIX MONTHS FROM THEDATE OF THIS NOTICE:
In respect of each information request where the response is outside of 20 working days as at the date of this notice, and where a permitted extension has not been applied, to comply with section 1(1)(a) of FOIA and, if information of the description specified in the request is held, either:
communicate it pursuant to section 1(1)(b) FOIA; or issue a valid refusal notice under section 17 FOIA, unless section 17(6) FOIA applies.
THIS NOTICE FURTHER REQUIRES BRISTOL CITY COUNCIL TOTAKE THE FOLLOWING STEP BY NO LATER THAN 35 CALENDARDAYS FROM THE DATE OF THIS NOTICE:
Devise and publish an action plan formalising the measures it will take to ensure it complies with its legal duties under Part 1 of FOIA to respond to information requests in a timely fashion, while also clearing its backlog of late requests as required by this notice’.
Appeal
The Council appealed one day late, they applied for an extension of time. Time was extended by the Tribunal Registrar, Mr S Bamawo, in Case Management Directions dated 21st June 2024.
The Council submitted:
‘On 30 August 2023 the council received practice direction FPR0987672 from the ICO, regarding consistently poor level of performance in terms of response times to requests. Specific reference was made to the fact that the council responded to an average of 62% of requests within the statutory time limits during the six month period of monitoring undertaken by the ICO. Various recommendations were made in order with a view to the council increasing its compliance rate to 90% by the end of last year. The requested work was undertaken and significant improvements made in relation to the timeliness of responding to requests.
On 9 February 2024 the ICO wrote to the council in relation to the backlog of overdue subject access and freedom of information requests, requesting that an action plan be produced, to which the council responded on 22 February 2024 with the requested detailed action plan. The ICO issued an enforcement notice on 14 March 2024.
In paragraph 9 of the enforcement notice, the ICO stated that the practice direction required that the council "should create an action plan which incorporated any recovery plan (relating to the Council's backlog of FOIA requests)." The relevant part of the practice direction stated: "The Council should create an action plan, incorporating any recovery plan already in development, with appropriate processes put into place to ensure 90% timeliness is achieved by the end of December 2023."
Had the practice direction made reference to the backlog, as suggested in the enforcement notice, then the course of action taken by the ICO would have been understandable, albeit our view would have been that an informal discussion in relation to concerns about the action plan and how they could be addressed could have taken place. As stated on the ICO's website: "The ICO does not usually take enforcement action without first approaching you to discuss any difficulties you may be having in trying to comply with the Act, and giving you a chance to improve." Given that the practice direction made no mention of the backlog, it is the council's view that the decision by the ICO to issue an enforcement notice is disproportionate and excessively punitive.
The council does not dispute the facts with regard to the backlog and is taking steps to address this and is of course open to further discussion with the ICO in relation to the proposed action plan. It is and will continue to work towards addressing these issues irrespective of the outcome of this appeal’.
Strike Out Application
On 19 July 2024, the ICO applied for a strike out under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (the Procedure Rules) on the basis that:
The appeal was in accordance with the law AND
As such the appeal had no reasonable prospects of success.
In his response to the application dated 2nd August 2024, the Appellant submitted that:
The ICO had misquoted the practice direction (Footnote: 1) in the Enforcement Notice. This must have informed the decision to issue the enforcement notice.
Had the wording quoted been correct, the Council would have no argument with the fact that the discretion had been exercised in a fair and proportionate fashion.
Authorities have increasingly struggled to set a balanced budget as a result of austerity measures implemented over the past 14 years. The Council recognises that it has statutory duties regarding FOIA – it endeavours to meet these on the basis of the minimum amount of expenditure possible. When the practice direction was received, additional resources were allocated to ensure the timeliness of responses within the statutory deadline and progress was made. It concluded
’14. The resources…are finite and, given the content of the practice direction, were devoted solely towards the improvement of timeliness. Had the practice direction contained the wording erroneously quoted, then the Council would had [sic] to have made available additional resources in order to simultaneously tackle the backlog.
It would appear on the balance of probabilities that the ICO issued the enforcement notice on the misapprehension that it had raised the matter of the backlog in the practice direction and that the Council had taken no action to address this and therefore in reliance, at least in part, upon erroneous information.
It is the Council’s view that the discretion in choosing to issue an enforcement notice was therefore not exercised fairly and should have been exercised differently and asks the Tribunal uphold the appeal on this basis’.
On 5th October 2024, Judge Buckley refused to strike out the appeal and issued further case management directions. She concluded that because the Tribunal exercises a full merits review and stands in the shoes of the Commissioner, it was not appropriate to determine the appeal summarily on the basis of the grounds of appeal and response. The decision as to whether the ICO ought to have exercise its discretion differently needs to be taken on the basis of a full consideration of the evidence.
Second Strike Out Application
On 31st October 2024, the ICO made a further application for strike out, on the basis that the Council had failed to comply with the directions made on 5th October 2024, specifically the requirement to provide a draft index, and because the appeal had no reasonable prospects of success in that the Council had provided a copy of it’s action plan as required by the enforcement notice, which included details as how the Council would reduce its backlog and the appeal was therefore academic.
The Council opposed the application, providing evidence that a draft index had been served on 18th October 2024, together with copies of the relevant documents.
On 14th November 2024, Judge Swaney refused to strike out the appeal on the basis that:
The Council had complied with the directions.
The Judge who previously refused to strike out the appeal was aware that the Council had provided a copy of its action plan and refused strike out in that knowledge. The Council’s case is that the Commissioner ought to have exercised discretion differently and that the enforcement notice ought not to have been issued at all. ‘Nothing in the Commissioner’s application of 31 October 2024 demonstrates that the appeal has no reasonable prospect of success’.
On 17th October 2024, the ICO wrote to the Tribunal, asking whether Judge Buckley had been provided with an email chain relating to the Action Plan. The email shows that the Appellant had produced the Action Plan in compliance with the Enforcement Notice upon which the appeal was brought. They submitted that the appeal was therefore academic. It was confirmed by the Tribunal that the document had been before Judge Buckley at the time of her decision.
Law
A person requesting information from a public authority has a right, subject to exemptions, to be informed by the public authority in writing whether it holds the information, and to have that communicated to him. This is set out in section 1(1) FOIA:
‘(1) Any person making a request for information to a public authority is entitled – (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him’.
Section 10(1) FOIA states that public authorities must respond to requests within 20 working days:
‘… a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following receipt’.
Under section 48 FOIA the ICO can issue recommendations as to good practice:
‘If it appears to the Commissioner that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with that proposed in the codes of practice under sections 45 and 46, he may give to the authority a recommendation (in this section referred to as a “practice recommendation”) specifying the steps which ought in his opinion to be taken for promoting such conformity’.
The Commissioner also has the power to issue an Enforcement Notice. Section 52(1) FOIA states (emphasis added):
‘If the Commissioner is satisfied that a public authority has failed to comply with any of
the requirements of Part I, the Commissioner may serve the authority with a notice (in this Act referred to as an “enforcement notice”) requiring the authority to take within such time as may be specified in the notice, such steps as may be so specified for complying with those requirements’.
Section 52(3) states an Enforcement Notice must contain:
‘(a) a statement of the requirement or requirements of Part I with which the Commissioner is satisfied that the public authority has failed to comply and his reasons for reaching that conclusion, and
(b)particulars of the right of appeal conferred by section 57’.
The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.
The burden of proof in satisfying the Tribunal that the Commissioner’s decision was wrong in law or involved an inappropriate exercise of discretion rests with the Appellant. The relevant standard of proof is the balance of probabilities.
Evidence
By way of evidence and submissions we had the following, all of which we have taken into account in making our decision:
An Open Hearing Bundle;
The ICO’s strike out application and GRC5 dated 19th July 2024;
GRC5 dated 31st October 2024;
Decision of Judge Swaney, dated 14th November 2024.
Discussion and Conclusions
The issue in this case is very narrow: in summary, the Council submits that the enforcement notice states that the practice recommendation required the Council to create an action plan which incorporated ‘any recovery plan relating to the Council’s backlog of FOIA requests’. However the Practice Recommendation made no such reference to the backlog. The Council accepts that if it had done so ‘then the course of action taken by the ICO would have been understandable’ albeit the Council suggests an informal discussion could have taken place first. The Grounds of appeal state ‘As stated on the ICO's website: "The ICO does not usually take enforcement action without first approaching you to discuss any difficulties you may be having in trying to comply with the Act, and giving you a chance to improve." Given that the practice direction[SIC] made no mention of the backlog, it is the council's view that the decision by the ICO to issue an enforcement notice is disproportionate and excessively punitive’.
Our role as a Tribunal is not to question how the ICO investigated. We are reviewing the evidence and making our own decision. We may agree or disagree with the ICO’s decision. As set out above, the Tribunal's jurisdiction to consider this appeal is set out in s.58 FOIA. If the Tribunal considers that the notice against which the appeal is brought is not in accordance with the law or, if it involved an exercise of discretion by the ICO, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner. In any other case, the Tribunal shall dismiss the appeal.
Having considered all the evidence, we refuse the Appellant’s appeal and conclude that the ICO exercised it’s discretion correctly (it is not suggested that the decision was not in accordance with the law and we do not find that it was). Even if we are wrong on this, we have reviewed the evidence and made our own assessment.
An Enforcement Notice is not issued solely because a party has not abided by a practice recommendation. Section 52(1) FOIA states “If the Commissioner is satisfied that a public authority has failed to comply with any of the requirements of Part I, the Commissioner may serve the authority with a notice (in this Act referred to as an “enforcement notice”) requiring the authority to take within such time as may be specified in the notice, such steps as may be so specified for complying with those requirements.”. There is no requirement that this must have explicitly been raised in the Practice Recommendation previously. We find that the apparent ‘misquote’ did not inform the decision to issue the enforcement notice; The apparent ‘misquote’ does not make a material difference in our view.
In the Practice Recommendation, the Council were being asked to achieve 90% compliance – the ICO did not state this was only in relation to the new applications, we note in particular that the ICO did not explicitly exclude the backlog from this 90% target. We have particular regard to the fact that a vast number of messages were exchanged between the parties specifically on the subject of the backlog before the enforcement notice was issued.
We accept that the Practice Recommendation was not explicit, in the sense that it did not use the words ‘backlog’, however it did say that the Council needed to achieve compliance of 90%.
We accept the difficulties public authorities have in allocating their scarce resources we accept that complying with these requirements takes resources away from other areas, however the requirement to do so is a regulatory requirement and relates to the statutory right of applicants. It is vital that a public authority abides by such requirements. Significant delays can cause real difficulties to applicants, who often need information within a particular period of time for important reasons. It cannot be correct or fair for requests to not be dealt with for 3 years without any sanctions. The suggested action plan that preceded the enforcement notice would have required over 3 years to clear the backlog and ensure that requesters received responses to their FOIA requests. The ICO did not consider this timescale to be reasonable and we agree. It undermines the legislation for this to be the case. We therefore conclude that this is an appropriate case for enforcement action and we refuse the appeal. We do note - for completeness - the steps that have been taken by the Council and the cooperation between the parties that has continued throughout the proceedings. We hope that this continues.
Signed Date:
Judge Kiai 4th August 2025