An activist claimed the council “keeps covering stuff up and it just looks terrible”The council doesn’t always respond to freedom of information requests within legal time limits(Image: Bristol Live)

A top council lawyer has taken the unprecedented step of appealing an enforcement notice from a regulator to improve transparency. Persistent failures to provide the public with information within legal time limits has caused Bristol councillors to raise fears about a culture of secrecy.

Last year the Information Commissioner’s Office ordered Bristol City Council to get better at responding to freedom of information requests (FoIs). The watchdog said Bristol was “consistently” one of the councils which had sparked the most complaints about FoIs in recent years.

Tim O’Gara, director of legal and democratic services, was grilled by councillors on the audit committee on Monday, July 28, about the enforcement. He faced questions over why he chose to appeal, if any politician was involved in the decision, and why councillors weren’t told sooner.

He said: “It wouldn’t be appropriate to comment on live legal proceedings. The decision to appeal the enforcement notice was made by me. Under the council’s constitution, I’m responsible for instituting and defending legal proceedings. I did that based on legal advice.

“We’re waiting probably longer than we thought we would be waiting. We will report back in due course as and when we receive a judgement. It’s not a political consideration whether or not I institute or defend legal proceedings. We do that day in, day out.”

This could be the first time a public authority has ever appealed an enforcement notice from the Information Commissioner, according to one expert. Writing on LinkedIn last year, Jon Baines, senior data protection specialist at Mischon de Reya, said: “As far as I can recall that will be the first ever appeal of an FoI enforcement notice to go to First-tier Tribunal.”

The First-tier Tribunal is a court that hears appeals and disputes, including decisions from the Information Commissioner. The appeal has not been resolved, more than a year since it was made. The enforcement notice has also been removed from the Information Commissioner’s website.

Anybody can legally request information held by the council, or another public authority, to ensure access to information for the public. While there are some exemptions, the council has a legal duty to provide any data that’s requested within four weeks — but it often doesn’t do so.

Green Councillor David Wilcox said: “I’ve been on audit for four years now. Why is this the first time we’ve heard that the ICO is contesting our work as a council? I would have thought that would come to audit in some way, as it’s a reputational risk for the council.”

Green Cllr Ellie Freeman added: “FoI requests are a really big part of how the public interact with us. This is all slightly concerning. This is a key part of how we operate as a council.”

The decision to appeal the enforcement notice is unlikely to help with the perspective of some campaigners that the council could be more transparent. Freedom of information requests are often not answered due to the risk of “damaging commercial relationships”, such as a request asking for the business plan of the huge City Leap deal between the council and an energy firm.

Speaking to the audit committee, Dan Ackroyd, a democracy activist, said: “Reform is coming. This council looks corrupt because you keep covering stuff up and it just looks terrible, month after month after month. Why are you allowing this situation to continue? It’s ridiculous.”

Internal auditors at the council found responses to FoI requests faced a significant backlog. Half of the backlog sits within four service areas, but councillors weren’t told which ones. There is no up-to-date action plan to address the enforcement notice if the appeal is unsuccessful. But new staff will soon be recruited to help address the backlog and speed up responses to FoI requests.

After the meeting, Liberal Democrat Cllr Nicholas Coombes said: “The public has long suspected a culture of secrecy under the last council administration, which is why I was so keen to audit Bristol’s response to freedom of information requests. The council should be open in its decision-making and willing to share what it knows, because that encourages better decisions and better public service.

“I am glad that the FoI team is working to reduce the backlog and have plans to improve. However, the culture of openness must come from the top, which is why the people of Bristol voted to scrap the mayor and have committees of councils make decisions in public.”

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