Neil Wilby Media

On 27th June 2025, journalist and transparency advocate, Neil Wilby, as part of a wider investigation into under-performance, submitted a Freedom of Information Act (FOIA) request to the Information Commissioner’s Office (ICO), seeking performance data on how the statutory regulator handles complaints from members of the public (or such as academics and members of the press) under section 50 of the Act.

The request focused on three key metrics over a three-year period:

1. The average number of days taken to initially respond to a section 50 FOIA complaint (excluding auto-responses).

2. The average number of days between a complaint being made and a caseworker being allocated.

3. The average number of days between caseworker allocation and the issuance of a Decision Notice.

The ICO responded on 17th July 2025, refusing to disclose the requested information under section 12 of the FOIA, which allows public authorities to decline requests that exceed the cost limit of £450 (equivalent to 18 hours of work). The ICO stated that extracting the date of the first letter sent out in each case would require manual review of over 6,000 records, rendering the request too burdensome.

However, the response raised concerns about the ICO’s internal data practices and its approach to transparency. In particular, the regulator acknowledged that it does not routinely record the date of initial correspondence in a retrievable format, nor does it hold complete datasets for the earlier years requested.

The ICO advised that cases are typically retained for only two years after closure unless preserved for Tribunal proceedings.

In response, a formal internal review request was submitted by way of section 45 of the Act, challenging the ICO’s reliance on section 12 and raising broader questions about governance and accountability. The review request, dated 18th July 2025, sets out four key grounds:

• Implausibility of Non-Retrievable Data: Wilby argues that the ICO, as the statutory regulator for FOIA compliance, should maintain a casework management system capable of tracking core operational metrics. The absence of such data undermines transparency and performance oversight.

• Misapplication of Section 12: The review contends that the ICO conflated the first part of the request with the entire submission. It is maintained that the second and third metrics—caseworker allocation and Decision Notice issuance—should be readily extractable from the ICO’s systems and ought to have been disclosed at first instance.

• Apparent Applicant Bias: The journalist raises concerns about differential treatment, noting a pattern in his dealings with the ICO, for well over a decade, that suggests his status as a journalist may have influenced the handling of the request. FOIA and the regulator’s own Guidance requires that requests be treated in an applicant-blind manner.

• Inadequate Advice and Assistance: The ICO’s response offered no meaningful support in refining the request to fall within the cost limit, nor did it suggest partial or aggregated disclosures for the years where data may be available.

The internal review request calls on the ICO to reassess its position, confirm whether relevant performance metrics are recorded, and address concerns about procedural fairness. The ICO is on notice that, depending on the outcome of the internal review, further escalation may be considered if proportionate and in the public interest.

This latest exchange highlights ongoing tensions between transparency advocates and the very body tasked with upholding information rights. It raises important questions about how regulators measure their own performance—and whether those metrics should be subject to more intensive public scrutiny.

The ICO, via its press office, has been offered right of reply.

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Neil Wilby is a journalist, court reporter and transparency campaigner who has reported on police misconduct, regulatory failures, and criminal and civil justice since 2009. He is the founder and editor of Neil Wilby Media, launched in 2015.

Page last updated: Friday 18th July, 2025 at 08h50

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