Freedom of information

Freedom of information

Contents
The Freedom of Information Act 2000 (FOIA) and
the Freedom of Information (Scotland) Act 2002
(FOISA) give individuals a general right of access 3 Publication schemes 6 Fees and costs
to all types of recorded information held by public 3 Compliance with the Act
authorities in the United Kingdom. The Acts place 3 Updating your scheme 7 Vexatious or repeated requests
a number of obligations on public authorities to
make information easily available to the public. 4 Data protection and freedom of 7 Destruction of information
Dentists providing general dental services (GDS) information
or personal dental services (PDS) are listed as 7 Refusal to disclose
public authorities. 4 Public right to obtain information
7 Enforcement
Every public authority must routinely publish 5 Exemptions
information, respond to requests for information 5 Confidentiality 7 Contacts
and adopt a publication scheme. For NHS general 5 Trade secrets or prejudicing commercial
dental practices the information that they must interests
routinely publish will mostly be covered in their 5 NHS earnings and contract information
patient information leaflet, which should be freely (England and Wales)
available. 6 Information from practice visits
Dentists providing care under private contract
only and who do not hold an NHS contract are not
affected by FOIA or FOISA obligations.

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© BDA May 2014


Publication schemes
All public authorities must have a publication scheme.
This includes local NHS area teams or health boards and
dentists providing care under the NHS (in a GDS or PDS
arrangement). A publication scheme should describe
the information held by the public authority, whether
it is publicly available and, if it is, how members of the
public can get hold of it and whether there is a charge.
A robust publication scheme should indicate the types of
information the public can access quickly and easily and
without having to make a formal request. It should give
staff at every level of the organisation clear guidance about
the information that they can give out without having
to seek higher approval, thus helping them to process
information requests more efficiently. The intention is to
ensure openness and accountability in public services.
For regulators, a publication scheme provides evidence
that a public authority is meeting its obligations to
be accessible, open and transparent. The Information
Commissioners Office (for England, Wales and Northern
Ireland) and Scottish Information Commissioner require
you to have two documents: a model publication
scheme and a guide to information.
The model publication scheme must be based on
the template published by your relevant information
commissioner, which sets out the general principles of
the Freedom of Information Act and your commitment
to make relevant information available. Dentists in -
• England, Wales or Northern Ireland should use
the Information Commissioner’s Office model
publication scheme
• Scotland should use the Scottish Information
Commissioner’s model publication scheme.
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The guide to information is simply a list of information
you hold and how you make it available to the public; it
is not the information itself. You may list, for example,
that you have documents describing members of the
dental team, the practice opening hours, the services
offered and your complaints procedure. You must be
able to supply the information listed to anyone who
requests it. Your guide to information should be based
on the information commissioner’s template and
customised for your practice. Dentists in -
• England, Wales and Northern Ireland should use
the guide to information for dentists
• Scotland should use the guide to information –
suitable for any authority.
Customised versions of both with suggestions on how
to complete them are available in BDA Expert. The
guide to information is an active document and should
be kept updated.
Providing a ‘freedom of information’ link from the
homepage of your practice website to your publication
scheme and guide to information makes this information
easily accessible to the public and demonstrates your
intention to be open and accountable. You must offer
alternative arrangements for people who do not want
to, or cannot, access information online.
Although you are expected to understand your
responsibilities regarding freedom of information, you
are not required to notify the commissioner that you have
adopted a publication scheme and guide to information.
However, compliance with FOIA is looked for by
commissioner and inspectors - such as the Care Quality
Commission (CQC) in England or Scotland’s Combined
Practice Inspection (CPI) regime. Failure to comply could
lead to legal action being taken against you.
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Freedom of information
Compliance with the Act
You should use your publication scheme and guide
to information as checklists and evidence that you are
compliant with FOIA/FOISA. You are required to
• Allow the public to see what information is available
• State what charges may be applied
• Explain how to find the information easily
• Provide details of a contact for enquiries and for
help with accessing the information
• Explain how to request information that has not
been published.
Updating your scheme
Although the need for a publication scheme has been
in place since 2003, the information commissioner
periodically reviews and updates the templates, so
make sure that you are using the latest version.
In England, Wales and Northern Ireland, the most recent
documents were introduced in January 2009. These are
likely to be reviewed and replaced sometime in 2014.
In Scotland, the most recent documents were
introduced on 1 June 2014 and replace all previous
versions. Each year, a revised version of the model
publication scheme will be published for authorities
adopting it in that year.
These reviews and updates ensure that public
authorities remain proactive in the information held
and how it is made available.
© BDA May 2014

Data protection and freedom of
information
Data protection and freedom of information are
sometimes confused:
• The Data Protection Act 1998 (DPA) provides
living individuals with the right to access personal
information held about them and protects their
right to individual confidentiality.
• FOIA/FOISA relate to government information – how
public money is spent and how decisions are made.
By receiving public money to provide healthcare
services, NHS dental practices are regarded as public
authorities and are covered by FOIA/FOISA. However,
public authorities, including dentists, often hold
personal information that, under the DPA, must
be kept confidential. The FOIA/FOISA publication
scheme should help dental practices to balance these
competing obligations.
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Public right to obtain information
The right of individuals to be given information held by
public authorities came into effect across the UK on 1
January 2005.
In Schedule 1 of both FOIA and FOISA, dental practices
providing GDS or PDS services are listed as public
authorities, allowing individuals to request information,
unless the Act exempts the information from disclosure.
FOIA and FOISA have been used by patients, politicians,
journalists and other dentists.
When seeking information, individuals do not need to
provide a reason, explain how it will be used or make
specific reference to FOIA or FOISA. Once disclosed,
however, the information is in the public domain and
can be passed on or published.
Public authorities should publish the name or title and
contact addresses of the person to whom information
requests should be sent. Websites should also include
an email address.
Individuals requesting information should submit their
requests by letter or email or, in Scotland, by video
or audio tape. They should include their name and
address.
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Freedom of information
Information must be provided within 20 working days.
In England, Wales and Northern Ireland, this deadline
can be extended under certain circumstances - if, for
example, you require clarification about the information
requested or need to take legal advice on whether
an exemption applies. No extension is permitted in
Scotland. Wherever possible, information should be
routinely and freely available (without the need to
ask for it); the practice information leaflet or practice
website can be used to comply with the FOIA/FOISA
requirements.
Only the information requested needs to be provided.
If, for example, the information is contained within
a larger document and can be extracted, the whole
document need not be provided. The information
should be provided in writing or can be provided by
allowing the applicant to read it on the premises. If
the information is held electronically, you must, if
requested, make the information available electronically
and in a useable format.
In Scotland, if you do not have the information
requested, you must inform the applicant.
In England, Wales and Northern Ireland, there is a more
general duty to confirm or deny that information is held
and it is sensible to respond within 20 working days.
FOIA and FOISA provides dentists with the right to
request information held by a primary care organisation
(PCO – NHS area team or health board).
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Exemptions
Public authorities are expected to disclose information
when requested; exemptions should be used in
exceptional circumstances only. Where information is
withheld, it is good practice to explain why and cite the
exemption that is being applied.
Some exemptions require the public interest to be
considered. To withhold information covered by an
exemption, an authority must show disclosure would
prejudice a specified interest; in Scotland an authority
must show that disclosure would substantially prejudice
an interest.
A public authority may black-out or remove exempt
information but, generally, this should be done at the
time of publication and not when the request for the
information is made.
Confidentiality
The normal rules of medical confidentiality apply so,
for example, personal information about individual
patients or employees cannot be disclosed. Generally,
employee names and job titles would not be held to be
confidential unless their individual circumstances make
this necessary.
Information held by dentists that is likely to be covered
by confidentiality includes:
• Personal information about patients, including
personal health information
• Personal information about employees and other
practice workers
• Information about patient complaints (except the
number of complaints)
• Appointment information and individual claim
information.
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Some information held by PCOs about dentists that is
likely to be confidential includes:
• Personal information about dentists or staff
• Health information about dentists or staff
• Information about patient complaints (except the
number of complaints).
The results of investigations by a PCO are not covered
by confidentiality, so are not exempt disclosure. The
investigation is confidential (and exempt) but the
decision following investigation is open to disclosure.
Trade secrets or prejudicing commercial
interests
Trade secrets are business information that give a
commercial advantage and are not generally known to
the public or competitors. Trade secrets must be balanced
against the public interest in the disclosure of information.
Most dental practices will not have trade secrets. Dental
practice should be evidence based and dentists should
not use clinical procedures that are not based on
published evidence.
A commercial interest relates to an ability to participate
successfully in a commercial activity; it is the not the
same as a financial interest. When considering whether
a dentist’s commercial interests might be prejudiced it
is necessary to identify the interests and how disclosure
might prejudice them. Examples are business reputation,
the ability to obtain supplies or the ability to secure
finance. Commercial interests must be balanced against
the public interest in the disclosure of information.
There is generally a public interest in the disclosure of
commercial information to ensure there is transparency
and accountability in the allocation of public funds.
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Freedom of information
Factors in favour of maintaining trade secrets and
commercial confidentiality include situations where
disclosure would make it less likely that companies or
individuals would provide the public authority with
commercially sensitive information in the future.
Generally, with regard to NHS contracts, the public
interest argument is not strong before a contract is
awarded. After the contract has been awarded there
is a greater case for information to be made available
regarding the contract price and services to be provided.
NHS earnings and contract information
(England and Wales)
Dental practices are expected to disclose their NHS
contract values and targets if asked. The only exception
is if a contractor can give a clear reason why the
information should not be disclosed. Commercial
prejudice and personal financial information could
be relevant reasons but neither applies automatically.
The Information Commissioner has said that there is
no unfair prejudice to the commercial interests of a
practice if other dental practices know the contract
value. Rather, that it is in the public interest of gaining
value for money that competitors know the value of
government contracts. In any case FOIA provides a
general right for the public to know the value of any
given item of public spending. The BDA has challenged
this view but recent Information Commissioner
adjudications and court cases have confirmed that that
disclosure should be the default situation.
In relation to personal financial information, individuals
in the public sector must accept that their income can
be general public knowledge. Also, contract values
cover practice expenses and do not necessarily give an
indication of any given dentist’s income.
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To take advantage of the exceptions, you must give
sufficient reason why your circumstances could lead
to undue commercial prejudice or the disclosure
of delicate personal information. You must be able
to show that you have considered disclosure and
state in your publication scheme your reason for not
disclosing. Where you give a reason for non-disclosure,
the enquirer can ask the Information Commissioner to
adjudicate, which may lead to a ruling that you must
disclose the information after all.
Other NHS organisations – the area team, health board
or Business Services Authority (BSA) – may, if asked,
disclose information about dentists’ NHS earnings or
contract values. Where an area team or health board
invites bids for funding, it is unlikely that the results
of the bidding process will be covered by commercial
interest exemptions and, if requested, will be disclosed.
The details of the actual bidding process and the bids
themselves might also be published, although it is
less likely to be in the public interest because it might
discourage future bidders.
Information from practice visits
If asked, it is likely that a PCO would disclose a practice
visit report for an individual practice and would
certainly disclose an aggregate report for all local
practices. Although the information may affect the
commercial interests of the dental practice, it is likely
that, because compliance with NHS regulations and
health and safety standards is a legitimate concern of
patients, it would be in the public interest to publish the
information.
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Fees and costs
Fees may be charged for providing information under
FOIA/FOISA if the information requested is not required as
part of the GDS/PDS terms of service or is information that
is voluntarily provided, such as oral health information.
It is unlikely that PCOs will levy a charge for
straightforward requests and for dental practices
charges are likely to be minimal. Where the information
request is covered by other legislation (the Data
Protection Act, for example) the charge appropriate for
that legislation will apply, even if it is lower.
England, Wales and Northern Ireland
A maximum of £450 can be passed on for meeting
requests under FOIA. To calculate the cost of providing
the information, identify the total number of hours taken
to determine whether the requested information is held,
to locate it and retrieve it. The cost of staff time is fixed
at £25 per hour per member of staff. If the calculated
amount is below £450, you may make a reasonable
charge for providing the information to cover any costs
relating to photocopying, printing or postage.
If you propose to charge a fee, you must give the
applicant a fees’ notice stating the amount and whether
prior payment is required. The applicant has three
months to pay. The number of working days between
the applicant being given a fees’ notice and the fee
being received is not included in the 20 working-day
period that you have to meet the request.
If the anticipated cost of meeting the request exceeds
the maximum limit of £450, you may refuse to provide
the information or charge the actual cost of responding
to the request, including staff time. You can also agree to
provide the information anyway without charging a fee.
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Freedom of information
Where two or more information requests are made by
the same individual, or by different people who appear
to be acting in concert, or in pursuance of a campaign,
the estimated cost can be added together and the
request denied if it exceeds the maximum limit.
Scotland
Public authorities in Scotland do not need to disclose
information if the cost of doing so exceeds £600. Costs
should be calculated on the basis of £15 per hour per
staff member for time taken to determine whether the
requested information is held, to locate it and retrieve
it. The staff time taken in writing or producing the
information in the first place cannot be included in this
assessment.
Fees that can be charged are based on the projected
cost of supplying the information. Where the projected
cost of disclosure is less than £100, no fee is payable
by the applicant. Where the projected cost is between
£100 and £600, the public authority can charge a
fee of up to 10 per cent of the costs. Fees are for
photocopying, production of the information in the
required format and postage.
Fees can only be charged if stated in the publication
scheme. Dental practices should include a charging
schedule in their guide to information. If they fail to
do so, they cannot charge for information requests.
The charging schedule must clearly set out the
circumstances in which a charge will be levied and the
charges that will be applied. Material published on the
practice website or available to view at its premises
must be provided free of charge.
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Vexatious or repeated requests
You are not required to respond to vexatious or
repeated requests although you may do if you wish. A
vexatious request is likely to be one that is designed to
subject you to inconvenience, harassment or expense.
The effect of the request is important, as well as the
intention; if a request will cause disproportionate
inconvenience and expense it might be held to be
vexatious.
Where the applicant had submitted a previous request
or requests for identical or very similar information, you
are not required to provide the information unless a
reasonable interval has elapsed between compliance
with the previous request and the making of the latest
request. If information changes regularly, for example
performance information or activity information, and if
it is requested every time the information changes, it is
not covered by this exemption.
Destruction of information
It is an offence, after the information request has
been made, to alter, deface, block, destroy or conceal
information with the intention of preventing disclosure.
Generally, information should continue to be available
for the current and last two financial years. This does
not prevent information being properly managed and
old records being destroyed after an appropriate length
of time. When documents are updated, only the current
or most recent version should be published to avoid
confusion.
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Freedom of information
Refusal to disclose In England, Wales and Northern Ireland if the applicant
or the authority is dissatisfied with the Commissioner’s
Where you refuse a request to disclose, you must write ruling, an appeal can be made to the Information
to the applicant stating that request has been refused, Tribunal. This can be made on a point of law or on the
the grounds for exemption and, if it not obvious, why basis that the Commissioner ought to have exercised
the exemption applies. discretion differently. Further appeal on a point of law
can be made to the High Court. In Scotland, appeals
Your response must also contain details of any on a point of law against a decision made by the
complaints procedure for handling requests for Information Commissioner in Scotland can be made to
information or state that you do not have one. The the Court of Session.
applicant should also be advised of their right to
complain to the Information Commissioner or the Contacts
Scottish Information Commissioner.
The Information Commissioner
Enforcement (for England, Wales and Northern Ireland)
Wycliffe House
An applicant, who is dissatisfied with the response Water Lane
to a request for information, should complain to the Wilmslow
public authority in the first instance. In England, Wales Cheshire
and Northern Ireland, public authorities should have SK9 5AF
a complaints procedure. In Scotland, applicants may Telephone: 01625 545 745
ask for a review of the refusal and authorities usually
have 20 days to complete the review. If the authority
upholds its decision, the applicant can complain to the Scottish Information Commissioner
Information Commissioner. Kinburn Castle
Doubledykes Road
The Commissioner has a duty to investigate the case St Andrews
and give a ruling on whether the information should be Fife
disclosed or not. The Commissioner may also issue an KY16 9DS
enforcement notice, where the authority is compelled Telephone: 01334 464 610
to undertake a particular action.
© BDA May 2014
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