It is “not off the agenda” for the Metropolitan Police to face enforcement action over its poor performance in responding to Freedom of Information requests, the transparency regulator has said.  

Graham Smith, the Deputy Information Commissioner, made the comments that the UK’s largest police force may still face enforcement action if improvement is not made.

For more than two years the police force has been on a monitoring list which is watched by the ICO. The monitoring list is intended to be a short-term measure to improve an authorities performance at replying to FOI requests within the 20-working day time limit.

“There have been various things that they have been doing and we’re in close touch with them. They have made some improvement.

“The purpose of our monitoring is to work closely with the authority to understand what the issues are which are related to the performance.

“That can lead to enforcement action as it has done recently with authorities in Northern Ireland.”

The police force has been watched by the ICO since 2013 and has failed to make enough improvement to be taken off the watch-list.

Earlier this year, more than two years after the scrutiny started, the ICO said the performance of the force “remains a concern”.

Despite this, no action has been taken against the force. This was criticised by the Campaign for Freedom of Information’s Maurice Frankel who asked why nothing had been done.

Smith said the ICO works behind the scenes to see what an enforcement notice can lead to.

“What measures can be put in place by, and what we can achieve through enforcement action to make that improvement,” he said when explaining the reasoning for not issuing a notice against the force.

“Also, if it is proportionately to issue an enforcement notice to ensure those improvements. If we could identify with the Metropolitan Police exactly what it is that they need to do that they’re not trying to do already to improve the situation, then yes, we would issue an enforcement notice.

“It is not off the agenda.

“But there are various factors around what they are trying to do to centralise their systems, which are still in training and are taking longer than we thought, or they thought, that they would take.

“I take the point that perhaps if we had realised that we were still going to be in this position two years ago we might have done something differently.

“But the enforcement notice is not there as a penalty or a punishment for an authority. It is designed to achieve improvements and if those improvements are on track anyway that’s a factor we would take into account.”

In June the ICO issued only the fourth Enforcement Notice in the 10 years that the FOI Act has been in operation.

The notice was issued to the Department of Finance and Personnel for Northern Ireland and ordered them to respond to a number of long-term outstanding requests.

Before this the last enforcement notice was issued in 2010 and you have to go all the way back to 2006 to find the next one.

When asked whether there will be a similar length of time until the next piece of FOI enforcement from the regulator Smith said: “I don’t think we’ll have to wait another five years.

“I was saying the important thing is we are very clear that the steps that are required by an enforcement notice are achievable, are reasonable and will lead to an improvement which would not otherwise be made.

“It’s interesting that the enforcement notices which we most recently issued were actually complied with before they had arrived at the public authority, as they knew we were going to issue them.

“I do take the point that enforcement notices are a useful and important tool in the kit but we’ve got to be clear what we’re going to be using them for, whether it is the Metropolitan Police or the Cabinet Office, or anybody else.”

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The lack of Enforcement Notice issue to the Cabinet Office even has its own website

When pressed upon the Cabinet Office’s FOI performance, which has come under strong criticism from those who make requests – the BBC’s Chris Cook said there is a ‘determination to avoid disclosure‘ – Smith said that all authorities are considered for enforcement action.

“I couldn’t say that there is one in line for the Cabinet Office or any other authority. But we review performance very regularly and we always are considering, when we see poor performance, whether or not enforcement notices would achieve anything.

“We tend to look at two particular areas. We look at overall compliance with the 20 working day deadline and permitted extensions and we look at the age of the oldest requests the public authority have got.

“But you have to remember it’s complaints under Section 50 that bring these matters to our attention.”