To disclose or not to disclose: Freedom of Information

Under the Freedom of Information Act 2000 (“FOIA”), members of the public, foreign nationals and companies may request access to certain types of information from public authorities. The aims of the FOIA is to provide the general public with insight into government decision making, increased participation with public authorities, and ensuring that public authorities are held to account by increasing transparency.

There are strict rules which govern freedom of information requests, and not all public bodies are subject to the legislation. This article will discuss the procedure that must be followed when responding to a FOIA request and the exemptions to disclosing information.

What is a ‘Public Authority’ under the FOIA?

The FOIA only applies to ‘public authorities’. This has been defined as any of the following:

• Houses of Parliament;
• government departments and local authorities;
• National Assembly for Wales and the Northern Ireland Assembly;
• armed forces and the police;
• certain educational institutions and the NHS; and
• any other public bodies that have been designated by the Secretary of State.

In addition to the above, publicly owned companies are also subject to the requirements of the FOIA. These are organisations which are wholly owned by public authorities and are commonly referred to as the ‘wider public sector’. They include organisations such as transport and management companies that are wholly owned or set up by local authorities.

What does a freedom of information request need to include?

There are a number of points to consider to determine if a FOIA request is valid. The ICO guidance suggests that requests can come through many different formats such as social media, post and email. It also should be noted that an FOIA request does not need to include the words “freedom of information” and can simply be requesting some form of information.

There only needs to be 4 key elements present for a request to be valid, the request:

• must be in writing;
• must include the requestors real name;
• is accompanied by an address for correspondence; and
• include a clear description of the information that is requested.

If the request does not include any one of these elements, then the public authority can choose not to respond. However, if an authority does not respond, and the request turns out to be valid, then not responding could carry serious penalties for the authority. Appropriate training should be provided to employees, so they are able to recognise what correspondence amounts to a valid request and how to deal with them.

What information must be disclosed?

The FOIA grants the person making the request ‘a general right of access to information’. This means that a public authority must inform an individual in writing, whether it holds information of the description specified in the request; and to have that information communicated to them.

The information can be recorded in any form and includes anything that is held by the public authority, including (but not limited to):

• internal policies and communications;
• financial records;
• minutes from meetings or telephone calls;
• sound recordings; and
• CCTV footage.

Essentially, information could come in any form and a public authority will need to ensure that it undertakes a reasonable search to ensure that it is adequately complying with the request.

Procedure for disclosing information

The Information Commissioner’s Office (“ICO”) has substantial guidance on FOIA requests and the procedure for disclosing information which can be accessed here: Guide to managing a FOI request – ICO.

A public authority must carry out ‘appropriate searches’ to determine whether or not they hold the information requested. The ICO’s guidance suggests the authority should ‘search all those places where it is reasonable to expect you would find the information’. The authority should also keep an accurate record of the searches it has carried out.

The FOIA also imposes obligations on public bodies to provide advice and assistance to those who request information. This applies where the public authority requires some additional information in order to comply with a request, or there is a substantial cost that ‘exceeds the appropriate limit’. In any event, it is necessary for the authority to provide this advice when it is reasonable to do so.

Unless an exemption applies, authorities must respond to a freedom of information request, as soon as it is reasonably possible to do so, and in any event within 20 working days.

Exemptions to disclosure

There are many exemptions to providing information under a FOIA request, which are split into ‘absolute’ and ‘qualified’ exemptions.

1.      Absolute exemptions – The most obvious example of an absolute exemption, would be the disclosure of confidential information. This could potentially put the authority in breach of other statutory duties, agreements or contracts. If an individual requests any information that is confidential in nature, the authority does not need to disclose it.

2.      Qualified exemptions – The majority of exemptions under the FOIA are known as qualified exemptions. This means, if the public authority intends to rely on them, they will need to apply a public interest test in order to confirm that the information is exempt from disclosure. An objective test is used to assess whether withholding the information outweighs the benefit from the disclosure?

For further information regarding the exemptions available, please visit the ICO’s guidance available at: ICO – Exemptions

Summary

To ensure compliances with the practices imposed by the FOIA, a number of steps should be taken:

• review any internal policies which relate to FOIA requests;
• ensure that record keeping is accurate and up to date;
• seek legal advice if a request is vague or may be exempt from disclosure; and
• ensure that the authority has suitable procedures relating to freedom of information requests, and there is always someone present to comply with requests.

If you have received an FOIA request and require assistance with responding to this, please contact the Geldards Information Law team, who will be happy to advise.