New Information Commissioner suggests FOI charges; data protection rights to be weakened

It’s been a busy week.

On Thursday, incoming Information Commissioner, John Edwards, was questioned by MPs on the Digital, Culture, Media and Sport Committee. Unprompted, he suggested he thought it was legitimate to charge some Freedom of Information requesters. 

We issued the following statement in response to his comments:

“John Edwards was cautious about taking a firm position on the FOI questions he was asked, understandably wanting to brief himself fully on the issues before commenting.  Unfortunately, that did not deter him from suggesting off his own bat that some requesters should be charged for making FOI requests, a topic no-one on the committee had even raised with him. He seemed unaware that the ICO has always opposed the introduction of charges. For the incoming Commissioner to advocate a reversal of ICO policy on this critical issue before he’s even taken office is not an encouraging sign. We may have the first Information Commissioner who is willing to take the initiative in proposing to restrict FOI rights.”

Our comments have been quoted in this report on the hearing by openDemocracy. 

Mr Edwards is currently the New Zealand Privacy Commissioner. He takes over from Elizabeth Denham, the current UK Information Commissioner, on 31 October 2021. 

Rights to see personal data at risk

As if that wasn’t worrying enough, today the government published its long awaited proposals for reforming data protection law post-Brexit. It didn’t take us long to figure out that they would seriously reduce the rights of individuals to obtain their own personal data by making a  ‘subject access’ request. 

The consultation document proposes several changes based on provisions under the Freedom of Information Act:

  1. allowing subject access requests to be refused if the cost of answering the request exceeds particular limits;
  2. requiring data controllers to advise and assist requesters whose requests are refused on cost grounds; and
  3. permitting burdensome requests to be refused as vexatious.

Under the Freedom of Information Act requesters can challenge such refusals by complaining to the Information Commissioner’s Office (ICO), which must investigate and can overturn refusals. This doesn’t happen under Data Protection legislation. The ICO normally refuses to enforce subject access rights, telling requesters to go to court instead. Few do because of the high costs. 

The consultation would extend the grounds for refusals while strengthening the ICO’s ability to ignore complaints. Any comparison with the FOI regime is misleading: the ICO’s ‘hands off’ approach means individual rights would simply be slashed.

Katherine Gundersen 

Campaign for Freedom of Information