Despite being berated by the Information Commissioner’s Office in 2020, LBWF failings over the Freedom of Information Act continue

Over recent years, there has been growing unease about the way that LBWF responds to Freedom of Information Act requests from the public.

Indeed, in July 2020, the Information Commissioner’s Office (ICO) took the almost unprecedented step of issuing LBWF with a Practice Recommendation, which itemised in detail what it had been doing wrong, and what it must put right.

However, a recent case suggests that not only is LBWF still failing, but that, more alarmingly, the same mistakes are being repeated.

The detail is as follows.

In 2021, Charles Edwards, a long-time campaigner for more transparency in relation to Mini-Holland and its offshoots, asked for ‘email and WhatsApp group correspondence’ between councillors and others involved in the Experimental Traffic Order schemes (road closures, parking restrictions, and so on) that were being installed locally.

In response, LBWF refused to provide the requested information, arguing that on the basis of the Freedom of Information Act’s paragraph 12(1), the cost of complying would exceed the statutory limit, set at £450.

Subsequently, when Mr. Edwards appealed, LBWF turned him down again, this time with Mr. Hynes himself fully endorsing the previous verdict that (in his words) ‘the cost threshold would be exceeded’.

Accordingly, Mr. Edwards took the matter to the ICO, and its judgement has just been released.

The ICO states that when it first looked at the case, it quickly came to the conclusion that in both responses to Mr. Edwards, LBWF had begun from the wrong starting point. His request was for environmental information, and so should have been judged not against the Freedom of Information Act but against the 2004 Environmental Information Regulations (EIR).

But, the ICO notes, when it advised LBWF of this error, the latter simply ‘revised its position’, and argued that because EIR paragraph 12(4)(b) also permits rejection on cost grounds (specifically where a request imposes ‘a manifestly unreasonable burden on the public authority’) it was still within its rights to withhold the information that Mr. Edwards wanted.

And to justify itself further, LBWF forwarded an estimate that ‘to locate, retrieve and extract the requested information’ would take 97.5 hours and, at £25 per hour, cost £2,437.50. 

However, in its judgement, the ICO robustly rejects this new justification, concluding that LBWF has not ‘provided a sufficiently detailed explanation as to how it determines that it would take 97.5 hours to provide the requested information’, and so has failed to demonstrate that paragraph 12(4) (b) is engaged. 

The upshot is that the ICO now requires LBWF, within 35 calendar days, to issue a fresh response to Mr. Edwards that ‘does not rely on…12(4)(b) of the EIR’. 

Why LBWF has ended up so much at odds with ICO expectations remains unclear.

The Town Hall cannot plead ignorance, because the Practice Recommendation includes much guidance that is of direct relevance to this case, for example the following under the heading ‘Action Recommended’:

‘…LBWF should ensure that its internal review process offers a truly fair and through assessment of the handling of the request for information’,

and 

…‘LBWF should ensure that it makes sensible estimates when seeking to rely on section 12 of the FOIA [Freedom of Information Act]’. 

Perhaps Mr Hynes and his team have not taken these points on board, or even bothered to read them.

Perhaps they have allowed their irritation with Mr. Edwards, a determined and informed critic, to intrude.

Whatever the explanation, their actions thus far are not exactly encouraging.

And, relatedly, it is reasonable to wonder whether the kind of unprofessional approach evident in the foregoing has been replicated in the past, but remained unchallenged because those making requests assume that solicitors know what they are talking about.

At any rate, Mr. Edwards deserves our gratitude for persevering, and illustrating once more that anything LBWF comes out with necessarily must be taken with a grain of salt.