On 1 January 2005 several new laws and regulations governing access to information come into force: the Freedom of Information Act 2000, covering England, Wales and N. Ireland; the Freedom of Information (Scotland) Act 2002; new Environmental Information Regulations 2004/5; Environmental Information (Scotland) Regulations 2004; and an extension of the Data Protection Act 1998 to all personal information held by public authorities, with some exemptions (FOIA 2000 S68-73).
The Freedom of Information Act covers information held by public authorities, and private bodies where they have a public function or are contracted to carry out services for a public authority. It includes central government; local government; police; armed services; NHS bodies; schools and universities.
Section 1(1) of the Act says: any person making a request for information to a public authority is entitled (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.
Making a request
Anyone can make a request in writing to a public authority – by letter, email or fax, preferably to a designated FOI officer – asking for information. Public authorities have a duty to provide advice and assistance to those making requests for information under the Act. The Act itself does not have to be mentioned, but it is best to be as specific as possible about the information wanted and word a request clearly so as to avoid possible misinterpretation.
You are entitled to be informed in writing within 20 working days of the receipt of your request whether the authority holds the information specified and, if so, to have that information communicated to you. In some cases an extension of this time limit may be applicable, for example, where a public interest test is involved. The information should, if possible, be provided in the format preferred by the applicant – a copy in permanent form, a digest or summary of the information, or an opportunity to inspect the information, or ‘by any means which are reasonable in the circumstances’ (section 11s hereafter). There is a right to information, but not necessarily documents, though in many cases the information may most conveniently be provided by copies of documents. But a request may be met by providing the information in other forms, or by an offer to inspect it. Information may include photographs, plans, video recordings or data on computer (s84) – you can ask for a computer database to be interrogated.
The Act is retrospective, and applies to any relevant information held by that authority at the time you made the request. Once a request has been made for certain information, it is an offence to alter, conceal or destroy records with the intention of avoiding disclosure to the applicant of information they would have been entitled to (though there is nothing to stop an authority destroying information before the Act comes into force).
The Act confers a duty on all public authorities to maintain publication schemes (s19) which must be approved by the Information Commissioner, and these should already be in place and available on their websites. The authority must specify the classes of information it publishes or intends to publish, and whether there is a charge. It must then publish information as detailed in its publication scheme, which should be readily available to an applicant on request. Some authorities intend to publish disclosure logs of information made available under the Act. Such logs could be very helpful, and inform users of potential disclosures.
When making a request for information, make sure the information you need is not already available, for example on the authority’s website. Information that is considered to be ‘reasonably accessible’ otherwise than under section 1 of the Act is covered by an absolute exemption (s21). Information made available in accordance with an authority’s publication scheme is considered reasonably accessible. Freedom of Information officers should be helpful and have a duty to assist and advise (1) and can provide lists or indexes to help your search for information. And if the information you require is reasonably available elsewhere, and not covered by the Act, you should be told where to find it.
Where the information requested is held by another public authority, the authority which received the initial request should consider transferring the request to the authority that holds that information, who should then deal with the request.(2)
Where the request relates to information that has been transferred to the National Archives (Public Record Office), the request should be transferred to the responsible authority (s15).(3)
Fees
There should be no charge for information, up to a cost limit of £600 for central government and £450 for others, though you may be charged a fee for copying and postage. But above these cost limits an authority has no obligation to provide the information at all, or may charge the actual costs.(4) Where an applicant is notified that a fee is to be charged, the authority is not obliged to comply with the request and supply the information unless the fee is paid within 3 months.
Complaints/Appeals
If you feel your complaint has not been properly handled, or are unhappy with a decision about releasing information, you must first complain to the authority that denied your request. All public authorities must have a complaints procedure, a copy of which should be provided to you when a decision is made in relation to an FOIA request.(5) Where the case is not reviewed to your satisfaction, e.g. the authority continues to deny access to information, the next step is to write to the Information Commissioner(6) without delay with details of the case: the information requested, the action taken or not taken by the authority, copies of correspondence etc. The Information Commissioner may issue a Decision Notice and if the authority is found in violation of the Act, this will state the steps it must take to comply. A Commissioner’s notice is legally binding, so an authority may be in contempt of court if it fails to comply, and may face a fine if found guilty. The applicant of the authority can appeal to the Information Tribunal against a decision notice (7) and a ruling of the Tribunal can be appealed, on a point of law, to the High Court in England. (8)
Ministers can overrule the Information Commissioner’s decision that information should be disclosed under a public interest test by signing a certificate (s53). This Ministerial veto relates mainly to central government departments and is highly controversial. It can be judicially reviewed.
Exemptions
An authority is not obliged to comply with a request if it estimates that the cost of complying would exceed the appropriate limit (s12); alternatively, the authority may charge for information in such circumstances (s13). Nor need an authority comply with a request if it considers it to be ‘vexatious’ (s14); or if the request is ‘identical’ or ‘substantially similar’ to a past request, unless a ‘reasonable interval’ has elapsed between the two requests (s14). Also exempt is information held by an authority that is intended for future publication (s22); information that is covered by other access regimes: the Environmental Information Regulations – where the information concerns the environment, see below (s39, s74); or under the Data Protection Act – where the information constitutes personal data of which the applicant is the data subject. (s40)
The exemptions are perhaps the most controversial area, and classes of exempted information are described in Part II of the FOIA. There are 25 exemptions in all, most being subject to a public interest test, but eight are absolute or blanket exemptions, where, in most cases the authority will also be exempt from the obligation to comply with the duty (s1(1)(a) ) to confirm or deny in relation to the information: however, in the case of information ‘reasonably accessible’ to the applicant by other means (s21), an authority is exempt from the duty to communicate the information requested, but does have a duty to confirm whether or not it holds the information, and should inform you where it is.
Absolute exemptions are not subject to any public interest test, and include information supplied by, or concerning: the Security Service, MI5; the Secret Intelligence Service, MI6; GCHQ; the Special Forces, e.g. the SAS; tribunals concerning intelligence and interception of communications including the Investigatory Powers Tribunal; and the National Criminal Intelligence Service (NCIS) (s23). Other records covered by an absolute exemption are court records (s32); disclosures that would infringe parliamentary privilege (s34) and where information has been obtained by the authority from another person (including another public authority) and disclosure would constitute a breach of confidence (s41); and where disclosure is prohibited by statute (s44).
Where an authority decides that information is covered by an absolute exemption, the only grounds for appeal are that the information does not come into the exempted category.
Qualified exemptions
Other categories of information are covered by a qualified exemption, and disclosure is subject to a public interest test. In such cases, the information may be withheld only if the public authority considers that the public interest in withholding the information is greater than the public interest in disclosing it. But precisely how such a test is to be conducted is not mentioned in the Act.
A qualified exemption will only be effective in excluding the duty to confirm or deny where:
‘…in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information.’ (s2(1)(b))
And under s2(2)(b) of the Act, such an exemption will only be effective in excluding the duty to communicate information where:
‘…in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.’
Areas covered by a qualified exemption include where disclosure would, or would be likely to: prejudice defence (s26); prejudice international relations (s27) prejudice relations between administrations within the UK (s28); prejudice the economic interests of the UK (s29); prejudice law enforcement (s31); endanger health and safety (s38); prejudice commercial interests (s43). These categories have a ‘harm’ test in addition to a public interest test. Also covered by qualified exemption is information not covered by s23 that is ‘required for the purpose of safeguarding national security.’ A certificate signed by a Minister certifying exemption on these grounds is considered evidence of that fact (s24), subject to an appeal (appeals against national security certificates, s60).
Also covered by qualified exemption, but without a harm test, only a public interest test, is information relating to the formulation of government policy; ministerial communications; Law Officer’s advice; investigations and proceedings by public authorities in relation to a criminal offence (s30).
You should be told when an exemption is being used, which one and why.
In Scotland, the FOIA is in some respects better. For example the harm test is stronger: for categories such as defence, international relations, relations between authorities within the UK, the test is whether disclosure would ‘prejudice substantially’ instead of ‘prejudice’.
Environmental Information:
Access to information concerning the environment is governed by the Environmental Information Regulations.(9) These in most respects provide greater access than the FOIA, so wherever possible it is advisable to use these when requesting information. The definition of ‘environmental information’ is broad: anything to do with water, soil, land, and activities affecting the environment (eg foods, GM crops, biodiversity, energy, noise waste, drugs, nuclear, radiation, phone masts, biowarfare). Environmental information is in any case exempt from the FOIA.(10) Unlike with the FOIA, requests cannot be denied on the basis of cost, there are fewer exemptions, and these must meet a public interest test; there are no absolute exemptions, and requests can be made verbally or in writing.
Organisations subject to EIRs include those that provide public services in relation to the environment, for example, oversight agencies such as the Environment Agency that regulate emissions into the environment.
When the Act comes into force in January 2005, a number of areas will be contentious, eg fees, qualified exemptions. But it is important that refusals to disclose information are challenged, as only by doing so will the boundaries be pushed and we become better informed, and so empowered, about the matters that govern our lives. On this, the success or not of the Act will be judged.
Websites
- Campaign for Freedom of Information: www.cfoi.org.uk
Freedom of Information Act 2000: www.hmso.gov.uk/acts/acts2000/20000036.htm
or, as a single file, at: www.cfoi.org.uk/foiact2000.html
Explanatory notes: www.legislation.hmso.gov.uk/acts/en2000/2000en36.htm - Freedom of Information (Scotland) Act 2002:
www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts2002/20020013.htm - Briefing document on the Scotland FOIA:
www.jisc.ac.uk/legal/index.cfm?name=lis_foi_scot_ac_paper - Dept of Constitutional Affairs:
FOI page: www.dca.gov.uk/foi/
Data Protection page: www.dca.gov.uk/datprot.htm - Books: Blackstone’s guide to the Freedom of Information Act 2000
John Wadham, Jonathan Griffiths, Bethan Rigby
Notes
1 See Code of Practice made under s45 FOIA, on the discharge of public authorities’ functions under Part 1 of the FOIA: <www.dca.gov.uk/foi/codepafunc.htm>
2 The authority should consult the applicant before transferring if there are grounds for believing he would object, see Code of Practice under s45
3 Also see Code of Practice made under s46 FOIA, on the Management of Records by public authorities and the transfer and review of public records under the FOIA 2000 <www.dca.gov.uk/foi/codemanrec.htm>
4 There are concerns that the costs of multiple requests from one individual may be aggregated so as to exceed the cost limit and so allow an authority to refuse to comply.
5 See COP under s45.
6 <www.informationcommissioner.gov.uk>
7 Not in Scotland, where there is no Tribunal, although there is a Scottish Information Commissioner.
8 In Scotland the Commissioners’s decison can be appealed in the Court of Session.
9 <www.defra.gov.uk/corporate/consult/envinfo/index.htm>
10 s39, if the public authority holding it is obliged by regulations under s74 to make the info available to the public