Is the Information Commissioner a toothless watchdog?

Back in August last year, I reported that I had made an application to the BBC under the Freedom of Information Act for the names of the ‘best scientific experts’ who attended their climate change seminar in January 2006. It’s time for an update.My original request was made on 20^th July 2007, and on 21^st  August 2007 the BBC replied. I was told that the information that I required was held ‘for the purpose of journalism, art or literature’ and therefor they were not obliged to disclose it under the terms of the legislation.As this seemed to be stretching a very well used loophole just a little too far, I then wrote to the Information Commissioner’s Office, on 5^th of September 2007, asking them to require the BBC to comply with the Freedom of Information Act. The ICO is the watchdog charged with ensuring that public authorities not only comply with the legislation, but do so promptly.

During the next eleven months I received two identical letters from the ICO explaining that they were very busy and unable to start investigating my complaint. A request for them to do so immediately was ignored.

Eventually, at the end of July 2008 – over a year after I had written to the BBC – I was told that the case had at last been allocated for investigation, and a letter had been sent to the BBC asking them to explain why they had rejected my request for information about the seminar. It looked as though progress was being made at last.

During the next six months, I received a succession of emails from the Senior Complaints Officer who was dealing with the case. Most of them looked like this:

Further to my letter dated 26 September 2008 I am writing to update you on the progress of your complaint.

As I explained in my previous letter I am still awaiting a response from the BBC to the issues I raised. I am in regular correspondence with the BBC but require a response before I can make my final decision.

I hope to receive a response shortly and will update you again in six weeks time.

Assuming that ‘I am in regular correspondence with the BBC’ meant that the ICO were lustily battling the BBC on my behalf, I felt that I had no alternative but to wait patiently.  That was a mistake.

Eventually, when my patience ran out just before Christmas, I wrote to the ICO asking to see copies of the correspondence with the BBC. A month later, I received this response:

I apologise for the delay in replying to your previous emails. I also apologise that I have not forwarded to you any subsequent correspondence I have had with the BBC.

As you are aware I have not yet received a response from the BBC to my letter of the 28 July 2008. […..] Since I last wrote to you enclosing a copy of my 28 July 2008 letter, my communications with the BBC chasing responses […..] have been over the telephone.

After some thought, there seemed to be no alternative but to use the nuclear option; a formal complaint to the ICO. I was reluctant to do this as it seemed possible that there would be even more delay while investigations were being made, but this is what I said:

I regret that I must request a review of this case and that it should be transferred to another complaints officer.

My original complaint was sent to you on 5^th September 2007

Between then and 28^th July 2008 I received various communications from your office concerning the delay in beginning to deal with this case.

A letter dated 28^th July 2008 from the complaints officer to whom the case had been assigned informed me that this was now receiving attention and enclosed a copy of a letter which she had sent to the BBC requesting an explanation of their refusal to provide me with information under the terms of the FOIA.

Between then and 20^th January 2009, I received several messages informing me that the complaints officer was ‘in regular correspondence’ with the BBC concerning this matter.

On 20^th January 2009 I received a message from the complaints officer in response to a request to see copies of this correspondence.  This informed me that there had been no correspondence, but merely some telephone calls.

Nearly a year and a half after I made my complaint to the ICO,  the only substantive action that has been taken is the writing of one letter, and during a period of six months no response has been obtained from the recipients.

Under the circumstances, I cannot be expected to have confidence in anything that the complaints office might tell me in the future, or in her ability to deal with this matter. Nor does the performance of the ICO come anywhere near the standards claimed on your website, particularly in terms of the delay in dealing with this matter.

There are other issues, which will become apparent when the correspondence is reviewed, concerning unanswered correspondence and failure to respond to matters that I have raised in correspondence. If you wish me to provide detailed references for these, I will of course do so.

I look forward to hearing from you in the near future.

Suggesting that I might hear from them ‘in the near future’ was a hostage to fortune. Five weeks later the ICO replied.

In a two and a half page letter, the FOI Team Leader (Central Government) attempted to grapple with the problem, but failed. Here are a few excerpts:

I understand your complaint to comprise the following elements.

• The lack of substantive progress in investigating and resolving your
  complaint about the BBC, and the failure in meeting the ICO’s service
  standards which this delay has caused;
• A lack of confidence in […..], the case officer assigned to
  your case, because of her lack of activity on your case; and
• A failure to respond to matters you have raised in correspondence (no
  details specified).

There is no mention of the so-called ‘correspondence’ that never was, which was the real problem. Perhaps in ICO speak, correspondence and telephone calls are the same thing.

The letter continues:

I fully appreciate that the length of time it is taking us to resolve your case is
frustrating, and I can assure you that, ideally, we would not expect it to take
this long to deal with a case of this nature, nor would it be considered
appropriate. I apologise for the inconvenience this is causing. However, I can
assure you that Ms [….] is not responsible for the lack of progress on your
case since it was allocated to her in July 2008. Rather, the problem lies with
delays on the part of the BBC in providing substantive responses to our
correspondence and telephone calls which will enable us to have the
necessary representations in order to resolve this matter. In addition, I am
satisfied that Ms [….] has pursued the BBC for these responses as best as
she can be expected.

So it would seem that the ICO, who are meant to be the enforcers who ensure that freedom of information legislation is complied with, are completely at the mercy of public authorities who may not feel inclined to reply to their letters. He continues:

It is the case that most FOI complaints we are currently investigating about
the BBC have met with delay in terms of their responses to us, which is
slowing down the resolution of all such cases. However, we are currently
addressing this matter with the BBC at a senior level. We are hopeful that this specific issue of delay in responding to the ICO’s submissions and requests
can be resolved shortly. However, I wish to emphasise that we are pursuing
all BBC cases under investigation with equal vigour. We are also intending to
issue the BBC with ‘Information Notices’, so as to legally require them to
provide the required representations within a specified time.

It is, of course, a very great comfort to know that the ICO are ‘pursuing all BBC cases under investigation with equal vigour’, but one does wonder whether the high level negotiations with the BBC are being conducted by ‘correspondence’, telephone, email, or pigeon post. So far as the imposition of ‘Information Notices’ are concerned, it is now nearly two years since I first wrote to the BBC and nearly nine months since the ICO wrote to the BBC about my complaint. If Information Notices are likely to be effective, why were they not imposed long ago?

But the ICO have a solution to all these problems:
In addition, given the number and nature of BBC cases we are currently
handling, a decision was taken to transfer all such cases to our Belfast office,
in effect taking over the investigation of these cases. This was a corporate
decision reflecting the resources and capacity available in the Belfast office
and the transfer is now well underway. Therefore once we have obtained the
necessary representations required to continue our investigation into your
complaint, we hope that we will be able to issue a decision within a much
quicker timeframe. However, it is our Belfast office which will pursue the BBC
for a substantive response to Ms [….]’s enquiries from here on.
This means that Ms [….] is no longer responsible for the investigation of
your case. However, our Belfast office anticipates it will be in touch with you
later this month to inform you of progress on receipt of information and of the
case officer to whom your case wifi now be allocated. If there are specifrc
issues you wish to discuss regarding matters you have raised in
correspondence which you feel we should address as part of our investigation
but have not yet done so, it would be helpful if you could wait until the Belfast
office makes contact. However, for your reference, the Belfast Office’s
contact details are as follows:

Much as I love the great city of Belfast, this does rather sound as though inconvenient problems are being consigned to those who toil in the salt mines of Siberia.

So where has all this got us? Apparently, absolutely nowhere, except that the case officer will not be the same one who repeatedly told me that she was corresponding with the BBC when she was not, and that this is as a result of a  ‘a corporate decision’ rather than recognition of a failure on the ICO’s part. Nor does the letter even touch on the possibility that I have been mislead; the most serious element in my complaint.

Finally, the FOI Team Leader (Central Government)’s letter  makes it quite clear that there is no possibility of referring his totally inadequate response to higher authority within the ICO. It curtly informs me that if I am not satisfied, then I will have to contact the Parliamentary Ombudsman.

Members of the public cannot approach this august personage directly, but must do so through their MP. I am therefor in the process of providing him with the necessary information, which is, of course, an additional burden on his time for no other reason than that the ICO has no only failed in it duty as a watchdog, but seems unable even to handle a complaint about its own performance properly.

I will be contacting the ICO’s press office to ask them if they would like to comment.

Update 18/03/2009: Bishop Hill has put up a characteristically hard hitting post that is relevant to much that I have here:

BBC holds the law in contempt