UK: Freedom Of Information Act - Are you on track?

Last Updated: 4 March 2004
Article by Ian Cooper

Originally published February 2004

The Freedom of Information Act 2000 (the Act) has a potentially huge impact on the NHS. It is vital that public authorities are aware of the rights and duties created by the Act and that they have the necessary procedures in place to be able to comply with it.

The aim of the Act is to promote a culture of openness and to enable the public to understand how public authorities carry out their duties, why they make the decisions they do and how they spend public money.

The Act places two main obligations upon public authorities in respect of all types of recorded information held by them:

  • to adopt and maintain a publication scheme
  • to deal with requests for access to information.

Does it apply to us?

The Act applies to public authorities, including:

  • NHS Trusts, for example -

Acute Trusts

Ambulance Trusts

Mental Health Trusts

Primary Care Trusts

  • Independent Practitioners, for example -

General Practitioners


Optometrists and Opticians


  • Strategic Health Authorities
  • Special Health Authorities.

What should we have done already?

Public authorities have a duty to adopt and maintain a publication scheme. This duty is now in force. All publication schemes in the health sector should have been active by 31 October 2003.

To comply with the Act, a publication scheme must specify:

  • The types of information that will be published
  • The manner in which the information is to be published
  • Whether the material is intended to be made available free of charge or for a fee.

Publication schemes are likely to contain details of:

  • Healthcare and other services provided
  • Internal organisational structures
  • Decision making processes
  • Complaints procedures
  • The rights of access available to the public
  • Minutes of past and timings of future Board meetings
  • Partnerships and relationships with other organisations.

Model publication schemes have been produced which have been approved by the Information Commissioner. If a Trust or independent practitioner adopts the model publication scheme relevant to their particular organisation or profession, it will not need to be approved further by the Information Commissioner. Any modifications to the model publication schemes will require the approval of the Information Commissioner.

Enforcement If you are required to have an active publication scheme but do not have one, the Information Commissioner may serve you with an Enforcement Notice requiring you to take steps to comply with the Act. If you fail to comply with the Enforcement Notice, the Information Commissioner may refer the case to the High Court and the court may deal with you as if you are in contempt of court. At worst, this could lead to imprisonment.

What do we need to do in the future?

The second main consequence of the Act is that it grants individuals a right of access to recorded information held by public authorities. This right comes into force on 5 January 2005.

Once in force, requests must be:

  • Made in writing (requests made by e-mail comply with this requirement)
  • Responded to within 20 working days of receipt with confirmation of whether or not the information is held and, if applicable, communication of the information in question.

The Act sets out specific exemptions to the right of access which may excuse the public authority from complying with the applicant’s request either in whole or in part. In the majority of cases, the applicant must be informed of the specific exemption relied upon together with an explanation as to why it applies in their particular case.

The exemptions include information which:

  • Is reasonably accessible by other means. Therefore, all information accessible through a publication scheme will be covered by this exemption.
  • Constitutes personal data of which the applicant is the subject. Such information would be accessible through the Data Protection Act 1998.
  • If disclosed, would be likely to endanger the physical or mental health or safety of any individual.
  • If disclosed, would breach a duty of confidentiality owed to another.
  • Is subject to legal professional privilege.

The majority of the exemptions set out in the Act must only be relied upon if the public authority is satisfied that the public interest in maintaining the exemption in question outweighs the public interest in disclosure.

The right of access comes into force in just over a year’s time and it is vital that you have sufficient procedures in place to deal with requests made under the Act. The following should be considered as part of your preparations:

  • Carry out an audit of information held
  • Ensure your records are managed appropriately, including systems for storage, retrieval and destruction
  • Ensure that all staff are aware of their obligations with respect to the management of records
  • Designate a member of staff to be the central contact for requests made under the Act. This lead role should be acknowledged and made known throughout the organisation.
  • Introduce a diary based system for dealing with requests for access to ensure that the deadlines laid down by the Act are met.
  • Keep your publication scheme under regular review. Remember that information accessible via your publication scheme will not be accessible via the general right of access. Therefore a full publication scheme will help to reduce the burden of access requests.

Websites offering guidance

  • Information Commissioner:
  • Guidance on freedom of information within the NHS:
  • Codes of Practice issued by the Lord Chancellor on the discharge of public authorities’ functions and management of records - obtainable at two or

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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