The Cabinet Office Freedom of Information Clearing House

Through disclosures about the Clearing House over time, the Government has sought to make amends for the absence of information regarding a core component of the Government’s Freedom of Information machinery. However, the level of disclosure falls short of what was previously available, and what was requested by our predecessor Committee. We note that data on the volume of cases was previously available, showing number of references by Department on a monthly basis. Experts in Freedom of Information—including the Information Commissioner’s Office itself—still find themselves unable to comment on whether the Clearing House provides a necessary or helpful role in that landscape. We note with concern the lack of effective record keeping in the Clearing House on its performance, which falls below the standard expected for a central Government body.

A greater level of transparency is required about the Clearing House. To further allay concerns about the Clearing House, a greater volume of data on its performance should be published. As a minimum, the Cabinet Office needs to publish the same level of Clearing House information as previously on the number of referrals to the Clearing House split by Department and month. Echoing our predecessor Committee, this should be disclosed on a quarterly basis. The Cabinet Office should also publish data on casework volume split by referral category and timeliness against ICO and legal guidelines.

It is disappointing that the Cabinet Office rejected the Information Commissioner’s Office’s offer to undertake a Freedom of Information Audit, and we are concerned both by this refusal itself and by the precedent this may set across Government. The Cabinet Office’s decision was misjudged given the Information Commissioner’s Office’s Freedom of Information expertise and, importantly, the Commissioner’s independence. The Information Commissioner’s Office, as the official statutory regulator for Freedom of Information and Data Protection, is better placed than any other organisation to undertake a review of this kind. The basis for this rejection therefore remains unclear, and we are unconvinced by the explanations from the Cabinet Office. The Cabinet Office’s internal review, launched only after the Committee initiated this inquiry, is no substitute for the independent assurance that the Information Commissioner’s Office would be able to provide.

Further, the Committee notes with concern the Cabinet Office’s failure to deliver on its promise of a short internal review. The Cabinet Office also missed an opportunity to expose itself to a rigorous third-party review which could have improved its own Freedom of Information operations. It is now eight months since the Cabinet Office promised its review to the Committee during which time it has failed to secure an internal reviewer or finalise Terms of Reference. This is an unacceptable delay.

The Cabinet Office should accept the Information Commissioner’s offer to undertake its proposed audit to reassure the public that the Government’s approach to Freedom of The Cabinet Office Freedom of Information Clearing House 25 Information requests is compliant with the Freedom of Information Act and that they are handled with the utmost professionalism. The Cabinet Office and the Information Commissioner’s Office should agree a timetable for the audit to be completed by the end of October 2022, and should commit to publishing its findings.

The Cabinet Office should produce and publish an action plan in response to the findings of the Information Commissioner’s Office’s audit, and provide it to this Committee no later than the end of this year. (Paragraph 31) The Cabinet Office’s compliance with and implementation of the Freedom of Information Act 2000

During the inquiry, the Committee received multiple examples of poor FOI handling in central Government departments, particularly in relation to non-applicant blind handling, how Public Interest Tests are evaluated and delays in Freedom of Information handling.

The Cabinet Office should review these practices and their own compliance with the Freedom of Information Act to model best practice. This should include, in particular, the adoption, where possible, of applicant-blind processing of requests; clear guidance on the very limited circumstances under which it may be appropriate for Ministers and Special Advisers to become involved in responding to Freedom of Information requests; and the establishment of appropriate timetables for the completion of internal reviews. Where it finds evidence that practices in Government departments are falling short of best practice, it should implement robust procedures to prevent their reoccurrence.

A strong functioning Freedom of Information system requires proactive leadership with a strongly supportive culture and an enthusiastic tone at the top of Government. We therefore welcome the strong tone adopted by the Government in response to critical press coverage of the Clearing House. However, we note a lack of consistency in the Government’s overall approach to Freedom of Information—for example the new proposed statutory arrangements for the Advanced Research and Invention Agency. This example evidences a slide away from transparency being viewed as helpful towards a view that it is a hindrance of Government being able to get on with work. This is a concerning trend and a wrong characterisation that should be challenged at the very top of Government. The Government lacks an approach that advocates for the Freedom of Information Act, and ensures that Government business is carried out in a way that helps to preserve the public record. A more proactive approach could see Ministers championing the Act though speeches, articles and other initiatives that underline the importance of the Act.

The Cabinet Office should drive a cultural shift from mere baseline compliance with the Freedom of Information Act to a greater advocacy for the core principles and tenets of the Act through proactive leadership across Government including examining whether there is best practice to learn from international comparisons. The Committee expects to see stronger tone on the benefits to good government from Freedom of Information, and greater demonstrable action on steps taken to improve outcomes for Freedom of Information applicants. The Government should, for example, drive stronger timeliness by responding to reviews within the 20 days suggested by the Information 26 The Cabinet Office Freedom of Information Clearing House Commissioners Office.

The Cabinet Office should also issue clearer cross-government guidance on the need to maintain public record to take into account the rise of private messaging systems. Finally, the Government needs to revisit its decision to exempt the Advanced Research and Invention Agency from the Freedom of Information Act, to ensure that this is not a precedent. It should set out clearly that this is an exception and why it is so.

The Information Commissioner’s Office plays an important enforcement and advocacy role for Freedom of Information. The Committee notes with concern the financial pressures facing the organisation which are not commensurate with the caseload it faces. The Committee notes the unsatisfactory Machinery of Government split with financial responsibility for the Information Commissioner’s Office’s Freedom of Information budget sitting with the Department for Digital, Culture, Media and Sport whilst the policy responsibility for Freedom of Information lies with the Cabinet Office.

The Cabinet Office is the departmental sponsor of the Freedom of Information Act, and Freedom of Information policy more generally. We therefore expect that there should be a stronger working relationship between the Information Commissioner’s Office and the Cabinet Office. Evidence submitted to the Committee suggests that until recently the Cabinet Office has engaged poorly with the Information Commissioner’s Office; working-level relations were characterised by poor communication and additional delays, though we note that the Information Commissioner’s Office says this has improved recently.

To ensure clearer lines of accountability and to aid the Freedom of Information responsibilities of the Information Commissioner’s Office, the Government should consider how to better align departmental policy responsibility and financial responsibility for the Information Commissioner’s Office’s Freedom of Information work. The Government can achieve this by either moving budgetary responsibility for such matters to the Cabinet Office or by transferring policy responsibility for Freedom of Information from the Cabinet Office to the Department for Digital, Culture, Media and Sport. (Paragraph 68) The Cabinet Office Freedom of Information Clearing House 27