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Frequently Asked Questions – Freedom of Information Act 2000

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Introduction to the Act

• What is ‘Freedom of Information’?


In the UK, the Freedom of Information Act 2000 came into full force on 1 January 2005. It is
the right of any individual or organisation to ask for and access recorded information held by
public authorities (public bodies). More than 100 countries already have or are in the process
of implementing freedom of information laws, including New Zealand, Canada and India.

• What does this mean in practice?


Since January 2005, all public authorities (PAs) in the UK are obliged to:

Reply to written requests for information


Confirm whether or not they hold the information sought.

Within the Criminal Justice sector, the Police, the Children and Family Court Advisory and
Support Service (CAFCASS) and the National Offender Management Service (NOMS) which
comprises Prison and Probation, are among those covered by the Act.

If you make an information access request, you can expect to be provided with that
information unless it is subject to one of the exemptions in the Act (exemptions are explained
separately below). The information may be held in any form (eg e-mails, paper documents,
video recordings).

The legislation is fully retrospective – it affects all public sector information, whether or not it
was created before 1 January 2005.

The right of access in the Act applies to ‘information’ and not to types of documents (minutes,
reports, etc). In practice, however, information will often be provided in these forms eg via the
Publication Scheme (see below).

• Does the Freedom of Information Act 2000 apply to all of the UK?

The Act applies to England, Wales and Northern Ireland.

Scotland is covered by the Scottish FOI Act 2002. For further information, visit:

http://www.scotland.gov.uk/Topics/Government/FOI.

• How does the Freedom of Information Act concern me personally?

Under FOI, everyone is entitled to apply for information from a public authority (including the
staff who work for the PA).

If you work for an organisation covered by the Act, you must ensure you are complying with
the Act when dealing with all written requests regardless of whether they mention the Act or
not.

Personal Liability - Section 77 of the Act (the ‘shredding offence’) specifies that public
authority employees are liable to prosecution if they knowingly conceal, deface or destroy
records, with a penalty of up to six months’ imprisonment.
In order to avoid any misunderstandings under Section 77, it is crucial to ensure that
information affected by a request is identified and processed as quickly as possible.

• Who can make a request for information under FOI?


Any person or organisation anywhere in the world can make a request under FOI. You do not
have to be a UK citizen or live in the UK to use the rights of access granted by the Act.

• Does FOI apply to personal information?

FOI applies to all public sector information. Information which concerns living individuals is
usually covered by the Data Protection Act 1998. Information which concerns deceased
individuals is covered by FOI.

• Does FOI apply to environmental information?


Environmental information is covered by the Environmental Information Regulations Act 2004.

• Which public authorities (PAs) are covered by Freedom of


Information?

The Act covers a wide range of organisations – eg Government departments, Government


Agencies, the armed forces, the National Health Service, local government, the police, the
National Offender Management Service (NOMS), colleges, NHS doctors and dentists,
universities and schools. A number of other public authorities which do not fall within these
categories are also included. A full list is available in Schedule 1 of the Act.

FOI does not apply to information held by the Security Service, the Secret Intelligence
Service, the Government Communications Headquarters (GCHQ), the Special Forces or any
unit or part-unit assisting GCHQ.

FOI and the private sector – Currently, the Act does not apply to private sector information
unless that information is held on behalf of a public authority. However, there is power to
extend the Act to cover the information held by private sector firms who work in partnership
with PAs. The Department for Constitutional Affairs (DCA - www.foi.gov.uk) will be
undertaking consultations to identify which private sector partners need to be covered.

• Does the Act apply to information in the National Archives?

Yes, information transferred to the National Archives (formerly the Public Records Office) is
covered by FOI.

• Are records still subject to the 30-year closure rule?

The standard 30-year closure period has disappeared. Instead, records are open on transfer
to the National Archives unless they contain information covered by an exemption.

Using the Act to access Information


• Where Do I Start? (Publication Schemes)

Under FOI, all PAs are obliged to have and maintain a Publication Scheme which specifies:

o the classes of information which they publish or intend to publish


o the manner in which the information is or is intended to be published
o whether the material is or is intended to be made available to the pubic free of
charge or on payment.
It is advisable to check whether information is contained in the PA’s Publication Scheme
before making a formal FOI request.

The purpose of these Schemes is to ensure that a large amount of public sector information is
readily available to members of the public in a consistent format and to ensure the public is
informed about extent of the material available.

In conjunction with UK Publication Schemes, the Department for Constitutional Affairs (DCA)
maintains an Information Asset Register (IAR) which lists information resources held by the
UK government, concentrating on unpublished resources.

To access the DCA’s Information Asset Register, visit www.opsi.gov.uk and click
‘Information Asset Register’ (left-hand side of page).

• How can I make a request for information under FOI?

To make an FOI request, send your enquiry to the PA, outlining the information requested
and providing your contact details (name, e-mail/postal address, postal address, etc). *

Choose the wording of your request with care, include all necessary detail and, if you can,
please be specific about the information you are requesting to avoid any unnecessary delays.

(* All written requests to PAs which meet these criteria are FOI requests. The request does
not need to specifically state that it is an FOI request. Most requests will be dealt with using
the usual day-to-day processes of the PA concerned.)

How long will it take?


The PA has a duty to reply to the request and to provide the information (unless it is subject to
an exemption) within 20 ‘working days’ - working days are defined as
Monday to Friday, excluding bank holidays and other public holidays.

Where a PA has identified that they may not be able to meet the 20-day deadline, they should
inform you in writing that this is the case. They are also obliged to keep you informed about
any new developments and, if there are any delays, to state when they expect to be able to
give a full response.

• Where do I send a request?

If you know which PA holds the information, address your query directly to them. However,
any FOI request for information addressed to any PA is a formal request and should be dealt
with appropriately by the body which has received it.

If you don’t know where to address your request, contact the named person in the Publication
Scheme.

A PA is entitled to redirect a requester to another organisation’s Publication Scheme or to


inform them if information is already in the public domain.

• Can I ask for the information in a different format (eg if I have special
needs)?
There is usually no obligation to provide information in a particular format rather than another
although you can specify a preference. Should you do so, a public authority may take into
account the cost of supplying the information in this form before complying with your request.
In particular, you may ask for information in permanent form (hard copy), in summary form or
for permission to inspect records containing the information.

It may also be possible for PAs to supply the information in Braille or audio format, in large
type or translated into another language. However, you should discuss this with the individual
PA.

• Is there a charge?

Usually requests are processed free of charge as long as they fall within the cost limits (see
below). There may be a fee for ‘extras’ such as photocopying or postage.

(See also ‘Disclosing Information’ section below – ‘Cost and Time Limitations’.)

• How can I access information retained by other government bodies


or held by another public authority?

Where a PA does not hold the information requested, they should make reasonable efforts to
assist you in identifying where it might be, depending on the circumstances. If they hold the
information and it is not covered by an exemption, they should release it, even if the
information was created by another PA.

Disclosing Information

• Will I always get the information I have requested?

The Act is based on a presumption of openness – the ‘right to know’. Public authorities must
expect to disclose information unless there are sound reasons not to do so (for instance, for
national security reasons). If challenged, authorities must be able to provide evidence to
support their decision.

• What are the reasons why I might not receive information?

Every FOI request has to be considered on a case-by-case basis. Information that might not
be disclosed at any one time (eg for commercial reasons) might be releasable if a second
request is made at a future date.

Other reasons why information might not be disclosed include:

Procedural Limitations

There is no obligation to provide information which is not held by the public authority that has
received the request.

There is no obligation to process a request that is not in writing or which does not sufficiently
identify the information sought. (In practice, authorities will endeavour to contact the requester
in these circumstances to confirm, clarify or refine the request.)

Cost and Time Limitations

Requests may be refused if they are considered to fall outside the cost and time guidelines.

Where the cost of a request exceeds the statutory limits (either “24 hours’ work” for central
Government or “18 hours’ work” for non-Central Government), the PA should provide a
breakdown and outline the options available (eg to refine the request).
The Department for Constitutional Affairs is in the process of reviewing how fees are
structured.

Exemptions
Exemptions are the grounds for refusing to provide all or part of the information requested
(non-disclosure). The Act specifies 2 types of exemption: absolute (eg national security) and
qualified (eg health and safety). Qualified exemptions are subject to considering the Public
Interest Test (see below). Be aware that applying exemptions can be complex and that the
guidance about them is continually evolving.

Broadly speaking, exemptions tend to fall within 2 categories:

Class: An exemption which covers a class or type of information. For example,


information which originated from any of the security services is exempt, as is
information which is held by a court.

Prejudice: Prejudice exemptions do not focus on types of information or what the


information is about. In fact, it doesn’t matter at all. Instead, prejudice
exemptions focus on the effect disclosure of the information would have. For
example, information which, if disclosed, would “prejudice security and good
order in prisons” is exempt from disclosure. The information could be about
fishing or ballet, but if its disclosure would adversely affect good order in a
prison it is exempt. Conversely, information is not exempt simply by virtue of
relating to security or good order in prisons. (Very little information held by
the Prison Service will be covered by an absolute exemption.)

The Public Interest Test (PIT)

Qualified exemptions are subject to a public interest test. This means that, where a decision
has been taken to apply an exemption, the public authority is still obliged to consider whether
there is an overriding public interest in releasing the information ie whether or not releasing
the information is in the interests of the public. Significantly, ‘public interest’ does not consider
whether the public is interested in a subject.

Repeated and Vexatious Requests

Repeated Requests - If a public authority has previously complied with a request for
information that was made by a person, it does not need to comply with a repeated request
from the same person (ie an identical or substantially similar request) unless a reasonable
amount of time has elapsed between compliance with the first request and receipt of the
second.

The term 'a reasonable interval' is not defined in the Act. In the first instance, this is for the
public authority to determine and, if necessary, justify.

Vexatious Requests - A vexatious request is determined by the information requested and


does not apply to the person making the request. An individual cannot be classified as a
vexatious requester. An individual can make as many requests for information as they wish
and cannot be labelled as vexatious - each request must be determined on a case-by-case
basis - but the provisions on aggregating the costs of these requests may be relevant.

Generally speaking, if a request is not a genuine endeavour to access information for its own
sake but is deemed to be aimed at disrupting the work of an authority or harassing individuals
within it, then it may be vexatious. Circumstances which might justify such a decision could be
that:

• The applicant has made clear their intention to cause disruption


• The authority has independent knowledge of the intention of the applicant
• The request clearly does not have any serious purpose or value
• The request can be fairly characterised as obsessive or manifestly unreasonable.

Again, where a public authority decides that a request is vexatious, it must be prepared to
provide evidence to support its decision (eg if requested to do so by the Information
Commissioner).

Complaints
• What can I do if I am not satisfied with my response?

If you are not satisfied with the PA’s decision, you can request an independent internal
review. Once all internal review processes have been exhausted, you are entitled to complain
to the Information Commissioner (www.informationcommissioner.gov.uk).

Where a decision is made to uphold a complaint, this may lead to various penalties for the
authority, from practice recommendations, warrant of search and seize to being named in a
parliamentary report.