Freedom of Information Act

 

Individual Rights of Access

 

Background

 

The Freedom of Information Act was passed in November 2000. Many of its provisions, including the duty to provide a publication scheme, are already in force. However, those sections of the Act that allow for individual rights of access do not take effect until January 1^st 2005.

 

Individuals already have the right to access information about themselves (personal data) that is held on computer and in some paper files under the Data Protection Act 1998. Freedom of Information legislation extends this right to allow access to all the types of information held, whether personal or not. This may include information about third parties although the Data Protection Act will have to be considered before releasing any personal information.

 

The Freedom of Information Act provides for two related rights:

• The right to be told whether the information exists
• The right to receive the information

The right to access the information held can be exercised by anyone regardless of age, nationality or location. The Act is also retrospective and relates to all communications in writing (including by electronic means).

 

Requests for information

 

All requests for information should be made in writing (this includes emails) and should clearly state what information is required and state the name of the applicant and an address for correspondence. The public authority has a duty to respond as quickly as possible and not later than 20 days after receiving the request. A reply should confirm whether or not the information requested is held and either provides the information or explains why it has not been provided, quoting an exemption under the Act.

 

The PCT already seeks to make much information widely available eg publishing PCT Board Meeting minutes on the website. It should be noted that under the general rights of access, anything can be requested eg departmental meeting minutes. Unless an exemption can be proven, the information must be provided.

 

The public authority has a duty to advise and assist requestors and should clarify what is wanted if there is any uncertainty.

 

Exemptions

 

There are a number of possible exemptions under which information need not be disclosed. These are listed at the end of this document.  There are two types of exemption:

• Qualified: where a public authority has to decide whether it is in the balance of public interest not to disclose information
• Absolute: where no “public interest” test need be applied

With the exception of the section relating to “information available by other means”, exemptions may also apply to the duty to confirm or deny the existence of the information requested if, in doing so, this would disclose information that it is reasonable to withhold.

 

 

 

 

 

 

 

Managing requests

 

A key element in the process of managing requests for information is to determine early in the process whether it should be recorded as a Freedom of Information request. Requests may be excluded from a FoI recording system if, for example, information leaflets already exist, the information required is already in a Publication Scheme or the information is released as part of the PCT’s normal business processes eg Board minutes being published on the website.

 

Should another public authority hold some, or all, the information requested, the requestor should be informed and assisted in transferring the request. Where disclosure of information cannot be made without the consent of a third party, the third party should be consulted to seek their consent to disclose. It is for the public authority, not the third party, to determine if the information should be disclosed under the Act.

 

The Act does not limit the number of requests that an individual can make but vexatious or repeated requests can be refused eg repeated requests for the same information or requests intended to disrupt the authority’s work. The information can be requested in any form but public authorities can take into account the cost of supplying information in this form before complying. Information can be requested in permanent form or summary form and permission may be sought to inspect records containing the information.

 

Costs of making information available

 

The Secretary of State for Constitutional Affairs announced on October 18^th 2004, that “Freedom of Information really means free information” The Government laid fees regulations before Parliament on December 9^th 2004. The Act allows public authorities to refuse to answer requests for information if the cost of complying would exceed the “appropriate limit” prescribed: £450 for health service organisations. Such costs are limited to those that an authority reasonably might expect to incur in:

• Determining whether it holds the information requested.
• Locating the information or documents containing the information.
• Retrieving such information and documents
• Extracting the information from the document containing it (including editing).

In undertaking the above, a public authority should use the hourly rate of £25 when estimating staff time costs. If the requestor does not agree with a public authority’s decision that the cost of complying with the request would exceed the appropriate limit, he or she can ask the Information Commissioner to intervene. The Department  for Constitutional Affairs has published “Guidance on the application of the Freedom of Information Act and Data Protection (Appropriate Limit and fees) Regulations 2004. this can be found at www.dca.gov.uk/foi/feesguide.htm. A practical summary can be found at www.dca.gov.uk/foi/feeguidesum.htm (attached). 

 

Complaints

 

If an applicant is not happy with the response they receive, they must complain initially to the public authority concerned. A procedure should be in place to handle such complaints. This should take the form of a fair, impartial review of the decisions made relating to the request and be handled by a person not party to the original decision, wherever possible. The complainant should be acknowledged and informed of a target date by which an answer will be provided. Records should be kept of all complaints and their outcomes. If the complainant is still unhappy, he/she can complain to the Information Commissioner who will decide whether the request has been handled properly. The complainant should be informed of this right.

 

 

 

How BEN PCT will meet its obligations

 

The PCT intends that:

• Any FoI request received within Directorates from 1 January 2005 should be logged, acknowledged and passed to the Programme Director - Corporate Services for advise and action.

 

David Stenson

Programme Director - Corporate Services

Suite 20  Second Floor Waterlinks House Richard Street Aston  Birmingham B7 4AA

 

• Each Directorate should designate a lead person to receive FoI requests and to liaise with the Programme Director - Corporate Services.
• A recording system for FoI requests should be established at Directorate and Corporate level.
• Any FoI complaints will be handled in accordance with existing Complaints procedures. Any such investigation cannot be carried out by anyone who was party to the original decision.
• The Chief Executive will sign the formal response to the complainant and advised of the right to apply to the Information Commissioner if still dissatisfied.
• The Programme Director - Corporate Services be responsible for the effective operation of the PCT’s activity relating to the Freedom of Information Act.
• The Programme Director - Corporate Services reviews the level of activity and ensures that the PCT uses the most appropriate methods to meet its obligations under the FoI Act.

 

The PCT is aware that:

• electronic management of its records could have other benefits to the organisation.
• email communications impacting on decision making processes should be archived.
• certain regular decision making processes eg determination of expenditure budgets and one off issues eg the potential sites for new health centres are likely to be of interest.
• proactive “bundling” of papers relating to such activities would be a useful, low cost, exercise to undertake.
• records should be complete and accurate
• there will be a continuing need to ensure all staff are aware of their responsibilities under the Freedom of Information Act.

 

Information held electronically

 

The FoI Act includes all information, however it is held. This means that information held electronically, including emails, are subject to the Act. It is suggested that such items are archived if they support a particular decision making process. Where emails are cascaded down or across the organisation, it will be the responsibility of the Director/Manager accountable for the decision to retain the record. It is not necessary for every recipient to retain the communication.

 

Compliance with the Freedom of Information Act is a legal requirement and it is the responsibility of all staff to maintain clear, concise and accurate records and respond to requests for information.

 

Guidance on the application of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 - summary

Step by step guide to Freedom of Information Act fees

This summarises the main steps public authorities need to go through when considering whether to charge for a Freedom of Information (FOI) request. Further detail on each of these stages is described in the full guidance.

Step 1. Do you know in advance if the information is exempt for the purposes of the FOI Act?

If information is exempt from FOI, then FOI fees will not apply. In many cases, authorities will not know if the information is exempt until the information has been located and checked. However, authorities may well know immediately upon receipt of the request that the information is exempt, usually because it is reasonably accessible to applicants elsewhere. For example, if the information has to be made available under the terms of another Act or is available through the authority’s publication scheme, it is automatically exempt from FOI. If information has to be provided under the terms of another Act, fees should be charged in line with the provisions in that Act. Authorities wishing to charge for information that is made available through the publication scheme should make clear whether charges will apply as part of the scheme. FOI fees will not apply in either case. The authority would need to contact the applicant to inform him or her that the information is exempt in the usual way. Exempt information is discussed in part 5 of the guidance.

Step 2A. Do you wish to calculate whether the cost of the request would exceed the appropriate limit?

In many cases, it will be immediately obvious that the request would cost less than the appropriate limit so there will be no point in calculating whether the appropriate limit is exceeded.

Step 2B. Are you likely to wish to aggregate two or more requests for the purpose of calculating whether the appropriate limit has been met?

Aggregation, where the cost of answering requests is added together, is not likely to happen often. It can only take place when an authority receives two or more requests from the same person, or different people acting together or as part of a campaign. The requests must be on the same or a similar subject, and be made within 60 working days of each other. If these conditions are met, the cost of the requests can be added together when calculating whether the appropriate limit has been met. Aggregation is described in part 2.4 of the guidance and in the annex.

• If the answer to either of these questions is yes, proceed to step 3.
• If the answer to both questions is no, proceed to step 4.

 

Step 3. Calculate the appropriate limit.

The appropriate limit is £600 for central government and Parliament, and £450 for other public authorities, with staff costs calculated at a rate of £25 per hour. When calculating whether the appropriate limit is exceeded, authorities can take account of the costs of determining whether the information is held, locating and retrieving the information, and extracting the information from other documents. They cannot take account of the costs involved with considering whether information is exempt under the Act. Part 2 of the guidance describes in more detail how public authorities should calculate whether the appropriate limit is met.

• If the request would cost less than the appropriate limit, go to step 4.
• If the request would cost more than the appropriate limit, go to step 5.

Step 4. Requests costing less than the appropriate limit.

If a request would cost less than the appropriate limit, the authority can only charge for the cost of informing the applicant whether the information is held, and communicating the information to the applicant (e.g. photocopying, printing and postage costs). This is described in more detail in part 3 of the guidance.

• Now go to step 6.

Step 5. Requests exceeding the appropriate limit.

If a request would cost more than the appropriate limit, the authority can turn the request down, answer and charge a fee, or answer and waive the fee. If it decides to charge a fee, and does not have other powers to do so, it can charge on the basis of the costs outlined in step 3 (ie those costs used to determine whether the appropriate limit was met), as well as the cost of informing the applicant whether the information is held and communicating the information to the applicant. This is described in more detail in part 4 of the guidance.

• Now go to step 6.

Step 6. For all requests, authorities should have regard to the following two points:

• Duty to provide advice and assistance to applicants.
  All authorities are required to provide advice and assistance to applicants when answering requests. If the authority is planning to turn down a request for cost reasons or charge a high fee, it should contact the applicant in advance to discuss whether he or she would prefer the scope of the request to be modified so that, for example, it would cost less than the appropriate limit.
• Maximum amount that can be charged.
  The Act and fees Regulations set out the maximum amount that can be charged where they apply. However, there is nothing to stop authorities charging a lesser or no fee. Each authority should develop a consistent policy on charging.

 

 

Other information access regimes

The access regimes most likely to be encountered apart from FOI are:

• personal data subject access rights under the Data Protection Act 1998 and
• access to environmental information under the Environmental Information Regulations 2004.

Information about the Data Protection Act is available at www.dca.gov.uk/foi/datprot.htm and www.informationcommissioner.gov.uk

Information about the Environmental Information Regulations is available at http://www.defra.gov.uk/environment/pubaccess/ecdir/index.htm

The three regimes have different fee provisions:

• public authorities can usually charge no more than £10 for subject access requests made under the Data Protection Act; [Endnote 1]
• the fees regime under the Environmental Information Regulations is similar to that for FOI requests (although there is no appropriate limit above which public authorities can refuse requests). Guidance on charging fees under the EIRs is available in chapter six of the DEFRA’s guidance on EIRs (http://www.defra.gov.uk/corporate/consult/eir-guidance/guidance-6.pdf).

The Freedom of Information Act amended the Data Protection Act so that individuals can make subject access requests to public authorities on “unstructured personal data”. The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 affect the Data Protection Act only insofar as authorities can refuse subject access requests for unstructured personal data where the cost of these is estimated to exceed the appropriate limit. The same appropriate limit applies both to subject access requests for unstructured personal data and FOI requests. Public authorities should follow the procedures outlined in step 3 above to calculate whether a subject access request for unstructured personal data would exceed the appropriate limit. These Regulations do not affect other forms of personal data subject access; nor do they affect whether, and if so what, fees can be charged for any subject access requests.

Any fees that are charged for subject access requests, including for unstructured personal information, must be charged in accordance with the existing Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000, available at: http://www.legislation.hmso.gov.uk/si/si2000/20000191.htm

Endnotes

1. Credit reference agencies can only charge a maximum fee of £2. Education records and manual health records attract a maximum fee of £50.

 

 

 

 

 

 

 

 

Absolute and Qualified Exemptions

 

Exemptions where the public interest test applies (qualified exemptions)

Section 22 Information intended for future publication
Section 24 National security
Section 26 Defence
Section 27 International relations
Section 28 Relations within the United Kingdom
Section 29 The economy
Section 30 Investigations and proceedings conducted by public authorities
Section 31 Law enforcement
Section 33 Audit Functions
Section 35 Formulation of government policy, etc
Section 36 Prejudice to effective conduct of public affairs (except information held by the House of Commons or the House of Lords)
Section 37 Communications with Her Majesty, etc and honours
Section 38 Health and safety
Section 39 Environmental information
Section 40 Personal information People cannot access personal data about themselves under the Freedom of Information Act as there is already access to such information under the Data Protection Act 1998. Personal data about other people cannot be released if to do so would breach the Data Protection Act.
Section 42 Legal professional privilege
Section 43 Commercial interests

Where a public authority considers that the public interest in withholding the information requested outweighs the public interest in releasing it, the authority must inform the applicant of its reasons, unless to do so would mean releasing the exempt information.

Exemptions where the public interest test does not apply (‘absolute exemptions’)

Section 21 Information accessible to applicant by other means
Section 23 Information supplied by, or relating to, bodies dealing with security matters (a certificate signed by a Minister of the Crown is conclusive proof that the exemption is justified.  There is a separate appeals mechanism against such certificates)
Section 32 Court records, etc
Section 34 Parliamentary privilege (a certificate signed by the Speaker of the House, in respect of the House of Commons, or by the Clerk of the Parliaments, in respect of the House of Lords is conclusive proof that the exemption is justified.)
Section 36 Prejudice to effective conduct of public affairs (only applies to information held by House of Commons or House of Lords)
Section 40 Personal information (where the applicant is the subject of the information.  The applicant already has the right of ‘subject access’ under the Data Protection Act 1998; where the information concerns a third party and disclosure would breach one of the Data Protection Principles )
Section 41 Information provided in confidence.
Section 44 Prohibitions on disclosure where a disclosure is prohibited by an enactment or would constitute contempt of court.

The exemptions have been the subject of considerable debate throughout the parliamentary progress of the Act.  This introduction does not attempt to provide an analysis of each exemption, or provide advice as to how exemptions might apply in particular circumstances.  Such guidance will be developed by the Information Commissioner over time and in the light of case by case experience.