The Information Commissioner's Office (ICO) has issued a formal enforcement notice to the Ministry of Defence (MoD) requiring the department to clear a backlog of unanswered Freedom of Information requests, some of which have been outstanding since 2018.
The MoD has 73 unanswered requests from the period 2018 to 2021, and the enforcement notice requires the department to provide responses to all of them.
In some cases responses are years overdue. The statutory deadline for responding to a Freedom of Information request is 20 working days.
The notice is one of six enforcement notices issued by the ICO over the past 12 months, more than in the preceding 17 years since the Freedom of Information Act came into force in 2005. A further enforcement notice was simultaneously issued to the Environment Agency, also requiring action to clear its request backlog.
The MoD's action plan, as set out in the notice, aimed to close all late cases within 12 to 15 months, through revised approaches to triaging work on the requests, greater engagement with focal points, reporting of late cases at a senior level and increased communication from the department's information rights team to the wider MoD defence community, including revised training courses.
The Commissioner noted that engagement with the MoD's information rights team had been positive, and acknowledged the steps taken in the action plan. However, he concluded that a legally binding enforcement notice was the proportionate regulatory step in light of the scale and age of the outstanding requests.
The ICO's director of regulatory improvement said: "In each case where we have issued an enforcement notice there have been dozens, often hundreds, of people waiting for responses to overdue requests. This is unacceptable and we will continue to take action when we see significant backlogs have built up and we have concerns about the plans in place to address them."
The consequences of failing to comply with an enforcement notice are significant. Non-compliance gives the Commissioner the power to certify the failure in writing to the High Court, upon which the authority may be treated as though it had committed contempt of court.
The action against the MoD forms part of what the ICO has described as a more strategic approach to FOI enforcement, underpinned by its regulatory manual published in 2022. The ICO has made clear it will not hesitate to use its enforcement powers when it sees repeated and significant or systemic issues with a public body's obligations under the Freedom of Information Act.
The MoD has been identified in government statistics as a persistent underperformer on FOI response times, with some outstanding cases dating back as far as 2018.
The enforcement notice is published on the ICO's website and the full notice is available to download from the ICO's regulatory action pages here: https://ico.org.uk/media2/en3de0s2/enforcement-notice-mod.pdf
