Freedom of Information act

The Freedom of Information Act was passed in November 2000 and came fully into effect from 1 January 2005.

Freedom of Information gives people a right of access to information held by public bodies.

The Freedom of Information Act 2000

 

What is the Freedom of Information Act?

The Freedom of Information Act (FOIA) 2000 deals with the rights of individuals and organisations to have knowledge of and access to any information that is kept relating to themselves.

 

With regard to electronic records management much of the  FOIA 2000 came into force on January 2005.

Many businesses and organisations in the UK are now legally required to ensure that their business practices conform to the requirements of the FOIA.

As a UK company specialising in electronic data management, data processing and file storage, DSS is experienced in dealing with, and implementing, data management solutions that ensure compliance with the FOIA.

The private sector

 

If you own a UK company the FOIA will affect you to some degree. Every company is regulated, taxed or licensed by public authorities and many have public sector contracts.

Under the FOIA, unless the information they hold on you is legally exempt, it could be open to the public and your competitors.

The public sector

 

The Freedom of Information Act covers almost all public authorities, which are estimated to number around 100,000 (there are a few exceptions). The Act is retrospective, so applies to historical documentation as well as that generated post-act.

The public authorities covered by the FOIA include:

•   Central government departments, eg; the Home Office and the Ministry of Defence.

 

• NHS organisations, from health authorities to hospital trusts, GP surgeries, pharmacies, dentists and opticians.

 

•  Schools, colleges and universities.

 

• Regulatory bodies, such as Ofcom and the Charities Commission.

 

• Local authorities, from parish councils upwards.

 

• Non-departmental bodies, which includes everything from the Environment Agency to the British Potato Council.

These public authorities have three main obligations:

 

• Maintain publication schemes (see below) for the proactive release of information.

 

• Confirm or deny to applicants whether they hold information not covered by the publication scheme.

 

• Disclose the information to applicants, providing it is not exempt under the Act.

Publication schemes

Publication schemes are systems for the proactive release of information. The type of information normally released via publication schemes would include such things as:

 

• Details of service and financial performance targets and related performance data.

 

• Board meeting agendas and minutes.

 

• Organisational information, including a who’s who of senior staff, their responsibilities and contact details, and staff rules and internal guidance.

 

• Financial information, such as sources of income, fund-raising and how money allocated between difference functions and departments.

 

Information on the authority’s decision-making process. This might include, internal reports and inquiries and the decisions emanating from them.

Almost all the public authorities covered by the Act now have active publication schemes, which are generally accessible via their websites. The schemes must be approved by the Information Commissioner, with the approval time limited to four years.

Anonymity

If you apply to a public authority for information under the FOIA you are not obliged to explain why you want it and they are not allowed to ask. However, you may not want the authority to know of your interest. In this situation the Freedom of Information Ltd can get the information for you, ensuring your interest remains confidential.

 

Not all the data submitted by your company to public authorities has to be disclosed. The FOIA has exemptions for trade secrets and any other information that could prejudice the company’s commercial interests. Trade secrets will include such information as the formulation of a newly patented drugs and details of a bespoke computer programmes. Prejudicial information is likely to include details of current bids for public sector contracts. Details of such bids are likely to be disclosed once contracts have been awarded.

In many cases the prejudice to business interests will have to be weighed against the public interest in disclosing information. So, a company may argue against the disclosure of details of public sector contracts on the grounds that it would damage its business, but the Information Commissioner, or the courts, may decide it’s in the public interest for taxpayers to know how their money is being spent.

Companies routinely designate all information ‘confidential’ and insert confidentiality clauses in contracts to prevent their disclosure, but such provisions will no longer be sufficient. The Lord Chancellor’s Code of Practice makes it clear that public authorities ‘should reject such clauses wherever possible.’ And the Information Commissioner may order confidential contracts to be disclosed if he considers there to be an overriding public interest.

Information requests

 

On receiving your information request, public authorities must acknowledge and log it. They must then answer the request within 20 working days, unless they are unsure whether the information should be exempt, in which case they are allowed more time for consultation. They have no right to ask the reason for your request.

Although authorities can refuse vexatious requests and those that would be disproportionately expensive to meet, the Act requires them to help you as far as is reasonable. The word ‘reasonable’ is open to interpretation, but the Lord Chancellor’s Code of Practice provides helpful guidance. If it’s not clear what information you’re seeking, the authority must ask you to clarify and if your request is too broad it should suggest you submit a narrower request.

Hopefully most information requests will be straightforward. In replying to standard requests the authority must set out:

 

• What information it holds on the subject you have specified, providing this information is not itself exempt.

 

• The information it is releasing.

 

• The information that is exempt from disclosure and therefore not being released, again providing this information is not exempt.

 

• Details of the relevant exemptions.

Wherever possible the information must be provided in the manner you request, for example photocopies, or computer files.

Complaints procedure

 

Public authorities must have an internal review procedure in place in case you wish to complain against a decision to withhold information. Once it receives your complaint, the authority should send you confirmation and tell you when you can expect a response.

Internal reviews can be conducted by person – ideally an appropriately trained senior figure - who was not involved in the original decision to withhold. They should be fair and impartial, with the reviewer considering the information released against that requested, plus all the documents associated with the original application. He or she should also discuss the case with the staff who handled the original application and, on completion, with the orgnisation’s FOI specialist, in case the conclusions warrant changes to internal processes.

The authority should inform you of the outcome and ensure all actions are recorded in case of further investigations by the Information Commissioner. As for timescale, should deal with simpler complaints within two to three weeks and more complex ones - in particular those involving public interest test exemptions within - within six weeks. They should notify you if these dealines are likely to slip.

If the original decision is reversed, you must be informed and supplied with the relevant information. If the decision is upheld, you must be told of you rights of appeal to the Information Commissioner’s Office and be supplied with the relevant contact details.

Records management

The public right of access to information can only be realised if public authorities organise all their data effectively. This principle applies equally to paper and electronic records. Under section 46 of the Act, the Lord Chancellor has produced a code of practice on the management of records. Failure to comply with the Code may be a breach of other legislation, including the Public Records Act, the Data Protection Act, the Local Government Act and the Human Rights Act.

Authorities routinely pass on information to other bodies, or individuals, for a variety of administrative reasons. In such cases they must keep a proper record of the transfer. Under the Code of Practice, if an authority holds some of the information you have requested, but believes another authority has other parts, it must inform you what it holds.

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