Information Commissioner exercised discretion correctly in issuing city council with FOI enforcement notice, tribunal finds
The First-tier Tribunal (FTT) has upheld an enforcement notice issued by the Information Commissioner’s Office (ICO) against Bristol City Council regarding delays in responding to Freedom of Information (FOI) requests.
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In Bristol City Council v Information Commissioner [2025] UKFTT 948 (GRC), Tribunal Judge Kiai, who heard the case with tribunal panel members Wolf and Saunders, dismissed the council's argument that the enforcement notice was "disproportionate and excessively punitive" because a previous practice direction from the ICO made no mention of an FOI backlog.
The practice direction was issued to Bristol in August 2023 and called on the city council to improve the timeliness in handling FOI requests.
It asked that the council achieve a 90% compliance rate for processing requests on time.
After finding that the council had failed to comply with the practice recommendation, the ICO issued an enforcement notice in March 2024.
The enforcement notice said Bristol had "consistently been one of the public authorities within the local government sector about which the Commissioner has received the most FOI complaints in recent years".
The notice added that there had been "no improvement" in Bristol's FOI backlog since its practice recommendation.
"On the contrary [the ICO] notes that this is now higher than that cited in the Practice Recommendation (147 requests)," the notice said.
It also criticised an action plan produced by the council, claiming that the strategy would take over three years to clear the FOIA backlog.
Bristol later appealed, arguing that the practice direction made no direct mention of the council's backlog, and that the council had undertaken the work initially requested in the practice direction, which called on Bristol to increase its compliance rate to 90% by the end of last year.
The submission read: "In paragraph 9 of the enforcement notice, the ICO stated that the practice direction required that the council 'should create an action plan which incorporated any recovery plan (relating to the Council's backlog of FOIA requests).'
"The relevant part of the practice direction stated: 'The Council should create an action plan, incorporating any recovery plan already in development, with appropriate processes put into place to ensure 90% timeliness is achieved by the end of December 2023.'
"Given that the practice direction made no mention of the backlog, it is the council's view that the decision by the ICO to issue an enforcement notice is disproportionate and excessively punitive," Bristol argued.
The council meanwhile did not dispute the facts with regard to the backlog and told the tribunal that it is taking steps to address this.
In its decision handed down on Wednesday (6 August), the FTT ultimately refused Bristol's appeal, concluding that the ICO exercised its discretion correctly.
Tribunal Judge Kiai said: "The issue in this case is very narrow: in summary, the Council submits that the enforcement notice states that the practice recommendation required the Council to create an action plan which incorporated 'any recovery plan relating to the Council's backlog of FOIA requests'. However, the Practice Recommendation made no such reference to the backlog.
"The Council accepts that if it had done so 'then the course of action taken by the ICO would have been understandable' albeit the council suggests an informal discussion could have taken place first."
The judge noted that an enforcement notice is not issued "solely because a party has not abided a practice recommendation".
Judge Kiai highlighted section 52(1) of the FOIA, which states: "If the Commissioner is satisfied that a public authority has failed to comply with any of the requirements of Part I, the Commissioner may serve the authority with a notice (in this Act referred to as an 'enforcement notice') requiring the authority to take within such time as may be specified in the notice, such steps as may be so specified for complying with those requirements."
"There is no requirement that this must have explicitly been raised in the Practice Recommendation previously," the judge said.
The tribunal also found that the apparent 'misquote' [of the practice direction in the enforcement notice] did not inform the decision to issue the enforcement notice and that the apparent 'misquote' did not make a material difference.
The decision continued: "In the Practice Recommendation, the council were being asked to achieve 90% compliance – the ICO did not state this was only in relation to the new applications, we note in particular that the ICO did not explicitly exclude the backlog from this 90% target.
"We have particular regard to the fact that a vast number of messages were exchanged between the parties specifically on the subject of the backlog before the enforcement notice was issued.
"We accept that the Practice Recommendation was not explicit, in the sense that it did not use the words' backlog', however it did say that the council needed to achieve compliance of 90%."
The tribunal also accepted the "difficulties" public authorities have in allocating their scarce resources, but stated that the requirement to do so "is a regulatory requirement and relates to the statutory right of applicants".
However, it noted that it is "vital that a public authority abides by such requirements", and it "cannot be correct" for requests to go undealt with for three years.
It continued: "The suggested action plan that preceded the enforcement notice would have required over 3 years to clear the backlog and ensure that requesters received responses to their FOIA requests.
"The ICO did not consider this timescale to be reasonable and we agree."
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