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Freedom of Information Act 2000: Mixed news

The Freedom of Information Act 2000 came fully into effect on 1st January this year. Under the FOIA, any person- be they a private business, a competitor, member of a pressure group, the media, or simply an individual, can make a request for information from any public authority. “Public authority” under the Act goes a lot further than simply Local Government or Central Government bodies: all manner of quangos, advisory bodies, and companies set up and controlled by public authorities fall within the category. The list also includes the Police, the NHS (and GP’s practices), and other emergency services, and educational establishments (schools, colleges etc).

The public authority is under an obligation to deal with the request within 20 days - a relatively short time period - and to confirm to the request maker whether they hold the information, and if so, to communicate that information to them. “Information” of itself ranges from physical documents, photographs, and CCTV footage to general unstructured information, such as emails, and statistics.

The Public Authorities can only decline to state whether they hold the information requested, or not, which one of the exemptions applicable under the Act are being used as justification for not providing the information sought.

Once an exemption has been applied, the only other option for the person making the requests is to challenge it. The expectation is that the public authorities own appeal system will be exhausted first before a referral should be made to the Information Commissioners’ office (IC), to review the decision.

The Act is a massive boost for individuals and business, and legal commentators have warned that it will only be an effective tool if used, and if individuals exercise their rights to request information. At present, it is expected that most public authorities will apply whichever exemptions they consider appropriate, as a matter of course, until such time as reviews of these decisions, pushed forward by individuals, result in guidance from the IC. Outline guidance has already been given to the public authorities by the IC, but legal commentators believe that we will only really have a firmer view of what latitude public authorities will be given when applying exemptions after the first wave of challenges to decisions have been heard, and processed.

In practical terms, this may mean that the information requested may not be provided within the 20 day time period, or shortly thereafter, to the extent that if may be weeks, or months before the information is released.

When formulating a request, it is important to anticipate some of the “ easiest” blocks that can be put in place by local authorities when handling requests for information:

The Basics

The Request itself should be made in writing (email will be acceptable), with a return address clearly stated. Although not necessary, it is useful to mark up your request as a formal request for information under the Act, to ensure that it gets to the correct processing officer or department quickly.

Check their publication schemes

It may be that the information you require has already been made available on a website or some other publication scheme, which the public authorities are under a duty to publish, and update.

What information do you want?

Unspecific requests/ Requests that cover a wide range of information may be difficult to address by the local authority.

Narrowing down the scope of your request will ensure that it is dealt with more easily. It will also avoid the possibility of the local authority claiming that the costs of complying with your request (i.e. due to the time involved in extracting the information, or the volumes of copying it may require) are prohibitive- an exemption in itself.

Local authorities are under a duty to ensure that they assist people making requests for information, where it is reasonable for them to do so. A failure to reasonably comply with this duty will also be referable to the Information Commissioner, for review, and so ensure that you get the assistance you require.

Make sure you ask for guidance

When asking for information, consider asking for guidance in your request, reminding them of their duty to do so, if you are unsure of which department or person to speak to.

Repeated Requests

A local authority can decline to answer a request for information if it can establish that the request has already been dealt with. It is therefore crucial that some thought is given to the formulation to the request, so that this exemption cannot be applied.

Exposure of Business Secrets- Fact or Fiction?

Whilst there has been much grumbling about the 23 exemptions available under the Act, it is important to understand that they are in existence to protect valid rights of confidentiality, commercial interests, personal information, trade secrets, legal privilege and health and safety (amongst many others).

A common misconception has been that the right to know will automatically allow businesses to have access to their competitor’s tenders, during the course of a tender process. Common sense would suggest that the nature of the information requested in such circumstances would clearly result in harm to the competitor, given the context, as this information would be both commercially sensitive, any may also be confidential.

Public Authorities have been gearing up for the introduction of the Act for the last 2-3 years, and therefore it is expected that their information handlers will be able to identify any requests that will be likely to harm individuals. There remains the risk that inexperienced individuals within public authorities may inadvertently disclose information that should more properly be covered by exemptions, but 3 months into the Act, no such instances have hit the headlines.

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