Director’s Update: Doing more with less – working with the FOI community to improve future FOI regulation

20 May 2022

This is the second in a series of updates from Warren Seddon, Director of FOI and Transparency. His blog posts provide a regular update on our FOI work and share key learnings to help practitioners and the wider FOI community understand our developing thinking and carry out their roles. You can read Warren’s last blog post here.

The story of our performance regulating the Freedom of Information (FOI) Act is one of doing more with less in real terms. Even before the pandemic we continued to face year-on-year increases in the number of FOI complaints we were receiving against a background of static government funding.

The pandemic therefore exacerbated longer term issues that means our performance right now is not where it needs to be to aid transparency and accountability within the public sector and we know that. We must therefore look to bring the way the FOI Act is regulated onto a more sustainable footing.

Tackling this is one of the Information Commissioner, John Edwards’, highest priorities for his first year in office. The need for the ICO’s regulatory role to be supporting an effective and modern FOI system is something he has been hearing throughout his listening tour. But tough decisions need to be made to address these issues. And it is these decisions that John was keen to discuss when he recently met FOI Civil Society stakeholders to hear their views as part of the tour.

Improving how we regulate

Over the last couple of years, my team has been exploring how we can deliver our FOI work in a more proportionate, streamlined way.

One key improvement we have made is to increasingly use early resolution techniques to negotiate an outcome between a requestor and public authority. Removing the need to do a full investigation or Decision Notice, but ensuring the requestor receives an outcome that they are happy with. This may mean supporting the public authority to better explain the context behind their decision or ensuring that information is released where it is clearly the case that it should have been by highlighting decisions we have already made in similar circumstances.

In the coming months we are seeking to expand this approach as much as we can to speed up our decision making. But we must do more.

Yesterday’s listening event was therefore just one part of a broader conversation we are having with public authorities and other interested parties to discuss some of these potential improvements to the way we work. It is important we bring the wider FOI community into these discussions through events such as the one recently attended by the Commissioner. It is only by working together we can ensure the Act continues to fulfil its crucial role maintaining transparency and ensuring public bodies remain accountable to the people they serve.

So, we are exploring what more we can do to ensure that our limited resources are targeted in the right areas and that our approach to resolving complaints is proportionate to the type of requests that are being made. We will keep you up to date on what this means in practice.

The situation right now

The need for continuing to explore how we can regulate more effectively is highlighted by our recent history. In 2014-15, we received 4,976 FOI complaints. By 2019-20, this had risen to 6,367 cases – a more than 20% increase. Despite this situation, we worked hard to increase our efficiency and managed to maintain a live caseload each year of around 1,250 cases. The impact of the pandemic means that we currently have around 2,250 FOI complaints with our office. This represents an increase of just over 1,000 cases compared to where we were before Covid took hold.

The good news is that since June last year our performance has recovered back to where we were before the pandemic. What we have not been able to achieve within our existing resources is to reduce the queue that built up during the pandemic. This means people are still waiting too long for a response from us.

So, working in new, smarter and more efficient ways is essential if demand for our service continues to grow. We also need to do more systemic enforcement to make clear where performance simply must improve – which is an issue I will update you on in due course.

In the short term, the Commissioner was also able to update Civil Society colleagues on two immediate changes we are making that will help improve our performance.

Firstly, we will be using some of the welcome additional funding the Government has provided to our office through the three-year Spending Review settlement to recruit an additional eight caseworkers to work on our FOI complaints for just over a year initially. This will represent a more than 10% increase in the size of the team and will help us resolve the more than 1,000 cases in our live caseload that have built up over the pandemic by no later than September 2023.

Secondly, and as I have indicated, we want to do more than simply get back to where we were. That is why we will also be using some of this additional resource to recruit a new team that will focus on enhancing the support we offer to help public authorities resolve requests before they reach our office. This team will be responsible for developing new and improved toolkits, guidance, and training to help improve performance and encourage greater publication of information proactively wherever possible. This is in addition to the work we will do to improve our ways of working and set new, more stretching performance targets for handling the complaints that we receive.

This action reflects the Commissioner’s commitment that we must do more to support public authorities, so people receive a better service when they first make an FOI request.

You can expect to see more from our office in this space in the coming months. In the meantime, you can watch a video of the Commissioner discussing some of the issues under consideration below.