In March 2024, the Information Commissioner issued an Enforcement Notice to Bristol City Council under section 52 of the Freedom of Information Act 2000 (FOIA) following the issuing of a practice recommendation to the Council in August 2023. The Enforcement Notice was concerned with the Council’s compliance with the requirements of section 10 of FOIA and, in particular, the sizeable number of requests not responded to by the Council within the statutory period. The Council exercised its right of appeal to the First-tier Tribunal which has now (after refusing two strike-out applications made by the Commissioner) dismissed the Council’s appeal.

The issue for the First-tier Tribunal was a narrow one which essentially boiled down to whether the Commissioner ought to have exercised his discretion differently when he decided to issue the Enforcement Notice. The Council contended that there was an error in the Enforcement Notice about what had been required by the practice recommendation previously issued by the Commissioner in relation to the creation, by the Council, of an action plan. The Enforcement Notice stated that the practice recommendation required an action plan which incorporated a recovery plan concerning the backlog of FOIA requests that the Council had. The Council, on appeal, argued that the practice recommendation did not reference the backlog.

The Tribunal gave, it is fair to say, the Council short shrift stating at [32]:

“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.”

The Tribunal continued at [34]:

“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.”

The Tribunal recognised, at [33], that an enforcement notice is not issued solely because a public authority has failed to comply with a practice recommendation and that there is no requirement that the failures to comply with Part 1 of FOIA must have been explicitly raised in a practice recommendation. [33] An Enforcement Notice is not something to ensure compliance with a practice recommendation issued by the Commissioner; it is a tool to ensure compliance with Part 1 of FOIA and carries with it the potential of being dealt with as if in contempt of court if it is not complied with.

What, I think, is far more significant than the overall result in this case, is what the First-tier Tribunal stated at [36] of its decision. It challenges directly a complaint that is often made by stretched public authorities when it comes to FOI: that takes resources away from other areas. Some public authorities continue to see FOI more as a “nice to have” rather than a core statutory requirement. The First-tier Tribunal states:

“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.”

This is a clear reminder from the First-tier Tribunal, some 20 years after FOIA entered into force, that FOI is part of every public authority’s core functions. Both FOIA and the Freedom of Information (Scotland) Act 2002 contain carefully calibrated provisions to ensure that FOI spending doesn’t present an unacceptable level of burden on a public authority’s resources; the balance between spending on this core function and on other core functions has been struck by Parliament in the legislation.

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}