The government is currently consulting on its plans for a new framework around data (‘Data: a new direction’). This involves changes to the structure and powers of the Information Commissioner (ICO), the office responsible for regulating and enforcing a set of legislation that includes both data protection and Freedom of Information.
In April this year, we published a report “Reforming FOI”, which among other changes argued for improving the funding of this organisation’s access to information functions. We also argue that changes in the importance of data protection over the last 20 years make the case for splitting off Access to Information into a different organisation, in particular as the Information Commissioner tends to be recruited mostly for their data protection expertise.
The language in the current consultation is around bringing the ICO into line with other ‘economic’ regulators, who mainly regulate private sector activity (OFCOM, OFGEM, etc). Part of this would involve a switch from a ‘corporate sole’ model (there is a person, ‘the Information Commissioner’), to a governance board model, where the ‘Information Commissioner’ is the chair of a statutory independent board with the commission itself run by a CEO.
The consultation is generally focused on the data protection roles of the organisation, but changing the governance of the ICO as a whole would have important knock-on impacts on their Access to Information work. Our reply to this consultation focuses on the impact on Freedom of Information.
- We are supportive of a board structure for the ICO as a way of bringing in additional expertise. We recommend a specific seat for FOI/Access to Information expertise. This seat should be appointed by Parliament.
- We believe that the appointment process for the Chair of the board (the new ‘Information Commissioner’) needs to substantively include Parliament and give them the ability to reject the government candidate.
- We oppose measures to extend government control over strategy and CEO appointments beyond the situation for comparable regulators.
- More generally, reform of ICO governance is an opportunity to set regulation of Access to Information on a more sustainable and independent path.
- A strong sign that the independence of the FOI functions is considered important would be to transfer funding from DCMS to a parliamentary process similar to the Parliamentary and Health Services Ombudsman and the Office of the Scottish Information Commissioner.
- It should also be considered whether the different long term directions of the ‘privacy’ and ‘Access to Information’ functions of the organisation mean it would be appropriate to divide the Commissioner’s Office, and create funding and oversight structures appropriate to each branch.
Our full reply can be read here.
The deadline is 19th November if you or your organisation want to submit a response.
The ODI has a guide to the consultation to help you identify relevant areas. For more background, the ICO and Biometrics and Surveillance Camera Commissioner‘s responses present their views on proposed structural reforms. The Institute for Government organised a roundtable on the proposed ICO reforms, and a summary can be read online. The Legal Education Foundation has commissioned an analysis on the equality impact of the proposed changes.
Header image: Photo by Katie Moum on Unsplash