FOIA and EIR public interest complaints to be prioritised by the ICO

The ICO are to prioritise complaints made against public authorities under the Freedom of Information Act 2000 (FOIA) and Environmental Information Regulations 2004 (EIRs), which have a significant public interest following their consultation on prioritisation in November 2022.

The decision was announced at the end of March 2023 following the consultation in November, where the ICO have now developed a ‘prioritisation framework’ which will allow them to investigate public interest complaints at pace and could account for up to 10-15% of cases they receive.

In an effort to improve FOI services, public authorities would be required to respond to complaints where there is significant public interest in the information requested in a shorter time-frame to such priority cases if they fall under the criteria.

Key take-aways

• Criteria includes:
  • The level of interest in the information and whether it raises a novel or high profile issue, such as significant media interest or a large amount of public money;
  • Whether the requester supports vulnerable groups or is raising awareness of significant public interest issues such as information rights;
  • If the information affects vulnerable individuals;
  • Whether prioritising the case would have significant operational benefits or support other public authorities.
• Public authorities will have shorter time periods to respond and will not be consulted on whether the criteria apply to the particular case.
• ICO caseworkers will ask complainants whether the criteria above apply to their case and their decision will be final.

Our view

The new prioritisation framework has been put in place by the ICO and public authorities will be required to comply with shorter decision notices received from the ICO in cases of public interest. Thereby increasing the administrative burden for a speedier response where public authorities may or may not be able to achieve due to various factors. The impacts of these ambitious timescales may take time to fully materialise once the system is in place.

Public authorities should familiarise themselves in relation to the criteria for such cases and ensure they are in a position to respond where relevant in reduced timescales. They should also refer any queries to the ICO whilst the new framework is put in place to better understand their obligations under the FOIA and EIRs, to enable them to quickly comply with any requests where required.

There is also consideration being given by the ICO to lowering thresholds for refusing to investigate complaints under section 50(2) of FOIA.It considers that "undue delay" in making a complaint should be six weeks after the public authority's substantive response, rather than the current three months (section 50(2)(b)).

A "frivolous" complaint will become one where there is such a low public interest in the underlying information that an ICO investigation would require a disproportionate use of resources.

The ICO also proposes not to investigate complaints against a public authority's decision that a request is vexatious under section 14, where the public authority has clearly followed the ICO's guidance on vexatious requests; the complaint itself will be deemed vexatious in accordance with section 50(2)(c).

There may be issues arising in relation to these considerations where investigations are not required for frivolous or vexatious decisions by local authorities, as well as the priority given to complainants to decide whether the criteria apply to their particular case without recourse for public authorities.

---

If you have any queries regarding this article or you require some advice regarding complaints against public authorities, please contact Shireen Eliyas or another member of our Local Government team.