09/04/2026
The Freedom of Information Act was introduced to ensure transparency, accountability, and public confidence in public authorities. More than two decades on, questions are increasingly being asked about whether the system, and its oversight, continues to function as intended.
A Simple Expectation
At its core, FOIA requires a simple answer:
- Is the information held at the time of the request?
That is the foundation of the Act.
A Growing Concern
A recent case suggests that, in practice, this question is not always addressed when it matters. The sequence:
- a request is refused under section 14
- no searches are undertaken
- time passes
- the position is later revisited
- the authority states “information not held”
- but cannot determine whether the information existed
The Role of Oversight
The Information Commissioner’s Office plays a central role in ensuring FOIA operates effectively. In many cases, it performs that role well. However, certain structural issues appear to arise.
1. Withdrawn exemptions are not examined
An exemption withdrawn during an ICO investigation:
- is not examined
- even though it directly affected the handling of the request
This creates a gap; the reason a request was not properly processed may never be considered.
2. Timing affects outcomes
FOIA assumes that:
- requests are addressed promptly
- information is assessed at the time
In practice:
- internal reviews may take extended periods
- ICO case allocation may take many months – currently up to 40 weeks!
During that time:
- retention / deletion processes continue
- evidence may degrade
- positions become harder to establish
3. Internal review framework
There is no statutory timeframe for internal review. The ICO suggests:
- 20 working days
- up to 40 in complex cases
In practice:
- longer periods are not uncommon
This raises a question; how often is the “exceptional” nature of extended reviews tested?
4. Section 77 – limited practical effect
Section 77 creates a criminal offence where information is destroyed or concealed following a request. However:
- enforcement appears extremely rare
- evidential thresholds are high – seemingly above ‘beyond reasonable doubt’.
- time limits for prosecution are short
This creates a potential gap; the very circumstances in which section 77 is most relevant may also be those in which it is hardest to prove.
5. Resource vs prioritisation
The ICO has referred to resource constraints. This is understood.
However, it raises broader questions; how are priorities determined & how does that affect FOIA enforcement?
A Procedural Gap
Taken together, these factors suggest a broader issue. Where:
- exemptions are applied early
- searches are not undertaken
- time passes
- and oversight does not examine the cause
Outcomes may depend on process and timing rather than fact.
Why This Matters
This is not about an individual case. It is about whether the system:
- reliably answers the question it is designed to answer
- or, in some circumstances, allows that question to go unresolved
Final Observation
FOIA is not simply about access. It is about certainty.
If the system cannot reliably establish what was held at the time of a request, its effectiveness must be open to question.
More about an FoIA Loop-Hole can be read here.