Yesterday John Edwards, the government’s preferred candidate to be the next Information Commissioner, was questioned by the House of Commons’ DCMS committee.
During this session, Mr Edwards made several comments that raised alarm bells for us. Generally, he seemed more concerned with hypothetical abuse of the system by the public, rather than the demonstrable behaviour of the authorities that he would be charged with regulating. He also expressed support for the idea of charging requesters (contrary to the ICO’s current position and rejected by the 2016 review).
While it is not good that those were his instinctive reactions, the general sense is that he has not yet had a chance to become fully acquainted with Freedom of Information, despite it being a significant part of his future role. The bigger problem is that any potential candidate for the job (now or in the future) is likely to be in a similar position.
The UK Information Commissioner is two roles joined into one. In other jurisdictions these would separately be called the Privacy Commissioner (who oversees data protection) and Information Commissioner (who oversees access to information laws). When the role was created, there was more of a balance between the two aspects, but the growing significance of data protection in a digital world has meant that this side of the role has increased in focus and funding. Currently, less than 10% of the funding the ICO receives is for Freedom of Information related work.
While it is possible that some people exist who could handle both sides of the job equally well, recruiting with an emphasis on data protection minimises any focus on the FOI role.
John Edwards is currently the Privacy Commissioner in New Zealand, where there is an Ombudsman who separately deals with the equivalent of Freedom of Information complaints. While Elizabeth Denham, the current UK Information Commissioner had prior experience of a joint role in British Columbia, her role at the national level in Canada was similarly on the privacy side.
Here in the UK, this is likely to be a recurring issue for Freedom of Information. It has been positioned as a sideline to the ICO’s main priorities and something that new commissioners have to catch up on, rather than hitting the ground running with a clear sense of the problems inherent in the field.
In our recent report, we argued for a separate and independent FOI Commissioner, mirroring the arrangement in Scotland. We dug into the historical reasons why the roles were joined, and found that it had resulted from uncertainty about different offices applying different ideas about what ‘personal data’ is. The solidification and internationalisation of data protection rules (which also helps create an international recruiting pool for the role) makes this far less of a concern now, while the same trend has reduced the prominence of FOI in the joint role.
It is also our belief that the FOI Commissioner should be independent of the government. By this we mean that as a constitutional watchdog, the Commissioner should operate under the Officer of Parliament model, and receive oversight and funding from Parliament rather than the government. The current situation presents an obvious conflict of interest, where the government controls funding for its own regulator.
Freedom of Information has survived direct challenges in this country and across the world, but the danger (and default trajectory) for our Right To Know is not that it is abolished, but that it becomes less effective as time goes on. State activity moves to private contractors and the act is not extended to follow them. The lack of effective and well-funded enforcement from the ICO means increasingly open non-compliance, as public bodies discover loopholes that allow them to drag out responding to requests. The solutions to these problems are not difficult (and in many cases can borrow from processes in Scottish Freedom of Information legislation), but require the political will not just to defend the FOI act as it exists, but to argue for its role into the future.
As we approach the UK’s 20 year anniversary of Freedom of Information in 2025, we believe that change is needed to reclaim the ground that has been lost, and to strengthen Freedom of Information as a continuing practical and effective tool of government accountability. To this end, we are actively seeking to work with interested organisations and stakeholders to safeguard our right to information and place it on a more sustainable footing. In the run up to the next election, expected in 2024, we hope to see parties from across the political spectrum include provisions to defend and improve FOI operation in their manifestos. We also hope to explore opportunities for FOI to flourish in the devolved nations. To keep up with our work, sign up to our mailing list.
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