Last year the Information Comissioner ordered the authority to improve its record on transparency
City Hall bosses were urged to “stop hiding behind legal tricks”(Image: Alex Seabrook)
A judge has thrown out an unprecedented appeal from a top lawyer at Bristol City Council in a row over secrecy. A regulator ordered the council to improve its record on transparency, prompting the legal boss to challenge the enforcement notice instead of simply complying with it.
Last year the Information Commissioner’s Office ordered the council to get better at responding to Freedom of Information (FoI) requests, after revealing Bristol was one of the most complained about councils in the country. Some requests take many months before a response is ever sent.
Last month Tim O’Gara, director of legal and democratic services, faced questions about why he chose to appeal the notice, and without consulting councillors. Now a judge from the First-tier Tribunal has finally dismissed the appeal and urged the council to improve its responses to FoIs.
Judge Gilda Kiai said: “Significant delays can cause real difficulties to applicants, who often need information within a particular period of time for important reasons. It cannot be correct or fair for requests to not be dealt with for three years without any sanctions.”
Anybody has the legal right to request information from public authorities, such as councils, although some data is exempt. Responses to FoIs must be sent within a legal deadline of 20 working days, but in Bristol this often takes much longer, however response rates are improving.
The judge added: “The suggested action plan that preceded the enforcement notice would have required over three years to clear the backlog and ensure that requesters received responses to their FoI requests. The ICO did not consider this timescale to be reasonable, and we agree.”
The reason the council appealed was because a previous order from the Information Commissioner, known as a practice recommendation, didn’t explicitly mention the backlog of FoI requests — but then the enforcement notice did mention this. The practice recommendation said the council should improve responses within the legal deadline from 62 per cent to 90 per cent.
After this didn’t happen, the ICO issued an enforcement notice in March last year, which the council in its appeal said was “disproportionate and excessively punitive”. Complicating the problem is a lack of cash, which most councils have suffered with due to austerity since 2010.
This means there is less money to spend on staff dealing with FoI requests. According to the council, if the first order explicitly mentioned the backlog, then more resources would have gone on tackling that. The council also said an action plan was put in place to speed up responses.
However, the judge said a “vast number of messages” were sent between the council and the Information Commissioner about the backlog, before the enforcement notice. And the practice order, asking for 90 per cent compliance, would naturally have included the backlog. Following the judge’s ruling, one councillor said City Hall bosses should “stop hiding behind legal tricks”.
Liberal Democrat Councillor Nicholas Coombes, vice-chair of the audit committee, said: “BCC needs to be more open in the way it operates, so the public know what the council is doing and why. BCC should invite and welcome public involvement so that we can make better decisions.
“We are appalled at the build-up of unanswered FoI requests under the last administration, and that BCC chose to appeal the regulator’s enforcement notice rather than take their advice. BCC needs to stop hiding behind legal tricks and improve the FoI service, as recommended by the Information Commissioner.
“Political leaders need to continue our transformation of the council to welcome public scrutiny and involvement, so that fewer people resort to freedom of information requests. A genuinely open council makes better decisions and wastes less money on legal fees.”
An expert on FoIs previously said this could be the first time a public authority has ever appealed an enforcement notice from the Information Commissioner. According to the council, appealing the notice was done at “no net cost to the council”, and was handled in-house.
A spokesperson for Bristol City Council said: “An appeal of the enforcement notice was instigated based on legal advice and done so in line with the council’s constitution. The Tribunal dismissed the appeal and has published their decision online. We have and continue to work with the Information Commissioner’s Office to improve performance and will carry on with these efforts to deliver best practice in our processes.”