ICO upholds complaint over HBC handling of FoI requests

The Information Commissioner’s Office has upheld a complaint concerning the time taken by Hastings Borough Council to respond to Freedom of Information requests and directed it to review its procedures. Data supplied by the council shows a worsening trend in response times. Nick Terdre reports.

The case concerned correspondence between Hastings Borough Council and Natural England about the England Coastal Path, which has had to be re-routed away from the sea to avoid the paths through Ecclesbourne Glen, closed to the public since 2014 due to instability caused by landslips.

A Freedom of Information request was submitted on behalf of the Save Ecclesbourne Glen group on 15 February 2017, but despite several reminders, no response was received from the council until 20 July 2018, when the applicant, SEG’s communications officer Chris Hurrell, was informed that the request was “on hold” pending a tribunal hearing of an appeal over a site licence for the nearby Rocklands caravan park.

As it turned out, the appeal had already been decided the previous April.

A decision on the FoI was finally received on 29 September 2018, some 19 months after submission and five months after the site licence appeal had been decided; it stated that no information was held.

“On 28 September we requested an internal review as we did not believe that HBC held no information,” Hurrell said. On 15 October the result of the review was received. This acknowledged that correspondence and documents existed, of which redacted copies were provided. The error was attributed to a misunderstanding on the part of the information officer, who deals with FoIs.

The review also acknowledged that the delay, which it said was due to two outstanding tribunal appeals, was unacceptable.

Grounds for complaint

A complaint was made to the ICO, which also deals with complaints arising from requests brought under the Environmental Information Regulations (EIR), on three grounds: the time taken to process the request, that the request had been put on hold, and that 19 months after the request was submitted, HBC had claimed that no information was held.

In its ruling the ICO concluded that in taking over 19 months to “provide the complainant with a substantive response, and even longer to provide him with the information requested,” it had breached the regulation requiring information to be made available no longer than 20 days after the date of receipt of the request.

It also considered that in placing the request on hold, the council had “disregarded statutory requirements deriving from the EIR.

“The Commissioner reiterates that public authorities do not have the discretion to place ‘on hold’ a valid information request without the requester’s consent.”

It further considered that the extreme delays incurred “raise serious concerns about the Council’s procedures in place. The Council should review its FoI procedures and ensure that such delays are not repeated in the future.” If systemic failings became apparent, the Commissioner would consider “what action may be appropriate.”

Council defends actions

The council has defended its action. “We don’t agree with the decision,” a spokesperson told HOT. “The ICO did not contact [us] to give us an opportunity to respond to the complaint.

“We believe we applied the appropriate exceptions to the appeals; one which was mutually agreed, and the other, with the ICO, the tribunal found in our favour.

“In the Council’s opinion, release of the requested material would have prejudiced either appeal.”

No specific review of the handling of FoIs had been undertaken as recommended by the ICO “because we are always reviewing our procedures to ensure that we are compliant”.

Whether the council’s review process is working to improve outcomes can be questioned given that data on response times supplied in response to another FoI request from Hurrell show that its performance has deteriorated over the years, with the proportion of requests taking longer than 20 days to be responded to rising from 13.7% in 2016 to 17.2% in 2017 and 18.3% last year (up to 18 October).

The fact that in each case the proportion of timely responses fell below 90% should draw the ICO’s attention, as the agency says that its Performance Improvement Department uses this threshold as a ‘rule-of-thumb’ for deciding when to contact authorities.

Figures do not tally

The figures supplied by HBC do not tally – the total is greater than the sum of the disaggregated numbers for the various time categories (for 2018, the total is given as 808 while the numbers for the time categories add up to 718). Depending on how the missing cases are distributed among the time categories (1-20 days, 21-30 days, 31-40 days, 40+ days), this may mean that the proportion of requests which took more than 20 days to be responded to may be even greater than calculated above.

In these days when councils are starved of resources and staff are no doubt cut to the bone, applicants are probably minded not to be too bothered if a response is somewhat overdue. However, the number of long delayed responses taking more than 40 days has risen substantially in the last three years, from 25 in 2016 to 45 in 2017 and 64 last year, when they accounted for 43% of all overdue responses.

Hurrell is concerned that delayed responses to its FoI and EIR requests are not due to a lack of administrative resources, but part of a deliberate policy of not releasing information to do with the cause of the landslips and the possible role of activities in the adjacent Rocklands caravan park.

“HBC have put at least another 20 information requests ‘on hold’,” he told HOT, but when SEG repeatedly asked which, “HBC refused for over a year to even tell us what requests were on hold.”

In addition to the request which was the subject of the complaint reported above, he said, “The ICO have already intervened around a dozen times to make HBC answer requests that were very seriously delayed – some for up to two years.”

 

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