Enforcement
While all the access regimes are enforced in England Wales and Northern Ireland by the Information Commissioner, Richard Thomas, there is a separate Information Commissioner in Scotland, Kevin Dunion, who has responsibility for enforcement of the Freedom of Information (Scotland) Act 2002.
The Data Protection Act
Organisations holding personal information which they process in any way must register with the Information Commissioner who publishes a register. Such registration is mandatory but is frequently overlooked particularly by small companies and organisations.
Breaches of the Data Protection Act are viewed extremely seriously by the Information Commissioner who regularly investigates complaints and conducts prosecutions. See the enforcement section of the Information Commissioner's Data Protection site
Information is also available on this site about how to make a complaint about the misuse of personal data under the Data Protection Act.
The Freedom of Information Act and the Environmental Information Regulations
Under the Freedom of Information Act as it applies to the UK - with the exception of organisations which provide public services in Scotland under the control of the devolved powers of the Scottish Executive (where the Freedom of Information (Scotland) Act applies) - any individual who feels that they have not had their request for information dealt with in accordance with Section 1 of the Freedom of Information Act may apply to the Commissioner for a decision. The Commissioner must than decide whether the complaint satisfies Section 50(2) of the Act, in that the complaint is legitimate and has exhausted all internal complaints procedures. Once this has been established, the Commissioner must then either inform the individual that no decision will be made and the grounds for that decision, or serve a decision notice on the complainant and the public authority. Where the Commissioner does decide that an authority has failed to comply with Section 1 or any of the requirements of Section 11 or Section 17, the decision notice shall specify the steps that the authority must undertake to comply with the FOIA. In this case, a time limit applies and the authority will be informed of this along with the details of their right to appeal.
The Information Commissioner has issued a great deal of guidance to support practitioners Decision Notices issued by the Information Commissioner and the findings of the Information Tribunal define the benchmarks which practitioners will need to be aware of to inform decisions relating to the appropriate use of the exemtions. Every week the most recent of these decisions relevant to the wider public sector will be analysed in the FOI+ blog which is available to subscribers.
Section 54 of the FOIA explains what may happen when a Public Authority fails to comply with any of the Notices which may be issued by the Commissioner. If an authority fails to comply, then the Commissioner may certify this to the High Court which can then investigate and may ultimately deem non-compliance as Contempt of Court.
Enforcement in Scotland
The Scottish Information Commissioner, Kevin Dunion, appears to have taken a very pro-active role regarding Enforcement and lists on his website those complaints which are currently under investigation alongside published decisions.
Working Days
There has also been correspondence about what constitutes a working day under Section 10 of the Act which is of considerable importance to those practitioners struggling to be compliant and deal with requests when skeleton staff are in place. Because of its reference to the Banking and Financial Dealings Act 1971, the Freedom of Information Act's definition of the working day specifies that days which are a bank holiday anywhere in the UK do not count in the 20-day time limit. Over Christmas this year, January 3rd was a bank holiday in Scotland but not in England - but it is to be taken as not being a working day in England, Wales and Northern Ireland as well.
Refusal Notices
About 10% of the Decision Notices issued by the Information Commissioner refer to Section 17 of the Freedom of Information Act which requires public authorities to notify an applicant in writing when it intends to refuse to disclose information which has been requested. It is felt that the failure to comply with the requirements of Section 17 are widespread. Advice on the content of refusal notices can be found on FOI+
Environmental Information Regulations - Reasonable Charges
Whilst there are no separate Fees Regulations under the Environmental Information Regulations , they state that fees may be charged but that they must be reasonable. Reasonable in this sense is taken to mean that the Public Authority may not seek to make a profit from any fees levied, nor should it use fees notices as a tool to dissuade applicants from seeking information - any fees must reflect the actual costs of producing the material in question (for further information see ECJ ruling (Commission v Germany (C-217/97))). As a general rule it is felt that if the Fees Regulations as they apply to FOI are applied to requests under the EIRs then they will be held to be reasonable since Parliament considered them to be so. However, where environmental information is collected and published on a commercial basis, the Environmental Information Regulations do allow the levy of a market-based charge in order to ensure its continued supply.
