109: ICO consultation on prioritising complaints against public bodies

The Information Commissioner’s Office (ICO) launched a consultation on 8 November 2022 on how it prioritises the complaints that it receives about public bodies’ handling of information requests.

The ICO, the UK’s independent regulator for data protection and information rights law, is looking at ways to improve its Freedom of Information (FOI) casework services to make information rights work more effectively. The ICO says that it has made this decision due to limited funding, an increase in FOI cases being brought before the ICO, and an increased need to support stretched public authorities.

The ICO wants to prioritise access to information complaints made against public authorities under the Freedom of Information Act (FOIA) and the Environmental Information Regulations 2004 (SI 3391 / 2004). The proposal is to prioritise complaints where there is a clear public interest in the information that has been asked for. The ICO defines the public interest as covering a range of values and principles relating to public good, or what is in the best interests of society.

New criteria for prioritisation have been set out in the consultation and would take into account:

• whether there is high public interest in the information requested and whether it raises a novel or clearly high-profile issue that should be looked at quickly;
• whether the requester is a person or a group who is raising information rights awareness;
• whether vulnerable groups or people are significantly affected by the information requested; and
• whether prioritisation would have significant operational benefits or support other public authorities.

The proposed changes mean that the ICO will aim to allocate priority cases with four weeks and complete them ‘at pace’. The ICO estimates it will prioritise around 10-15% of its cases by applying these criteria which will cover complaints made under the both the FOI Act and the Environmental Information Regulations.

Undue delay and frivolous or vexatious requests

Currently, the Commissioner can decide not to make a decision if there has been ‘undue delay’, where a complaint has been submitted more than three months after any final response from a public authority. The consultation proposes to reduce this to six weeks.

Proposals concerning ‘frivolous’ complaints – defined as when a complaint has no serious intent or is considered unworthy of serious treatment – are to be amended so a complaint will only be regarded as frivolous if there is such low public interest in the information requested, that it would be a disproportionate use of resources to investigate it.

With vexatious requests, the ICO proposes that it will not make a decision where a public body has followed the Commissioner’s existing guidance, as the ICO will consider the complaint itself vexatious so as not to further waste public resources.

The consultation closes on 19 December 2022. If you would like advice relating to this area please contact our Public Law team.