Freedom of Information

1. INTRODUCTION

The Government is committed to moving towards greater openness in the public sector. When it was issued the draft Bill was described by the Home Office as “a radical measure containing clear and robust access rights for those requesting information and a strong enforcement regime”. It has been recognised that legislation alone will not suffice to create a climate of openness; that cultural and not merely legislative change is needed. The Act is intended to act as a catalyst for change in the way that public authorities approach openness and has been matched with other initiatives, such as the establishment of an Advisory Group on Openness in the Public Sector, which published its report in December 1999, and changes to the management of public records. The Act does not apply to Scotland. The Scottish Executive published freedom of information proposals on 25 November 1999 as “An Open Scotland – Freedom of Information consultation”¹¹. The Freedom of Information (Scotland) Bill was published in 2001. The Act does apply to Northern Ireland and Wales and the Freedom of Information (Scotland) Act 2002 received Royal Assent in May 2002.

The Act employs two mechanisms for placing information in the public domain. Firstly, it establishes a right for any person making a request to a public authority to be informed in writing whether or not the authority holds the information sought and, if so, to have access to that information, subject to exemptions. Secondly, it also imposes on public authorities a requirement to publish information that they hold. Public authorities will be required to set up and maintain publication schemes, which will set out the categories of information which they undertake to publish.

Two codes of practice have been issued; one deals with records management by public authorities and the other gives guidance on dealing with the new access rights and requests for information.

2. BACKGROUND TO THE ACT

A White Paper on Freedom of Information, “Your Right to Know”, was published in December 1997 for comment and consultation. Following that White Paper a draft Freedom of Information Bill was published, together with a consultation document, for pre-legislative legislative scrutiny and public consultation in May 1999. It was considered by Committees of the House of Lords and the House of Commons, both of which reported in July 1999. The consultation document² remains a useful background overview of the Government’s approach in this area.

The draft Bill was criticised for not being as radical as the White Paper, however, despite this criticism, the revised Bill went to the House of Commons very largely as it had appeared in the consultation. It progressed through the Commons between December 1999 and April 2000. It was introduced to the Lords in April 2000. There followed a period of uncertainty as to whether the Bill would make it to the statute book during the life of the Parliament, however in the end it did so and received Royal Assent on 30 November 2000.

3. THE OPEN GOVERNMENT CODE ON ACCESS TO INFORMATION

There has been a gradual movement in public administration towards making information accessible, fuelled partly by the increasing popularity of access legislation in other jurisdictions (France passed laws in 1997, the Netherlands 1991, Ireland 1998, Canada 1982, Australia 1982 and New Zealand 1982). The UK has participated in this movement.

Since 1994 public bodies subject to the jurisdiction of the Parliamentary Commissioner for Administration have been required to comply with the Code of Practice on Access to Government Information (the “Code”). This was adopted in support of the broader policy of public access to information under the Citizens’ Charter initiative. The Code has now been replaced by the Act.

4. IMPLEMENTATION

A period of 5 years from Royal Assent to November 2005 is provided for full implementation of the Act.³ During this time the new obligations will be applied gradually throughout the public sector. The definitions and order making powers came into force on the day the Act was passed, as did the provisions allowing for the preparation of model publication schemes and work on the codes of practice.⁴ The first steps in the implementation of the Act have been taken. The Data Protection Commissioner was re-named the Information Commissioner from January 2001 and his office has produced guidance material and contributed substantially to the preparation of publication schemes.

The timetable for implementation is as follows: publication schemes were required to be introduced over the 18 months between November 2002 and June 2004 with the right of access coming into effect for all public authorities in January 2005.

5. RIGHT OF ACCESS

The core obligation in the Act is the requirement on public authorities to respond in writing to specific requests made to them for the provision of information, unless an exemption can be claimed. The response must be in two parts; the authority must state whether it holds information of the type requested and must communicate it to the applicant.⁵ Information is very broadly treated. It is defined as information recorded in any form.⁶ As the consultation paper explained:

“this includes paper records and information recorded electronically, or by any other technological means. The records may be structured or unstructured, and the information may be recorded in any number of different forms, styles, media and location. The Bill does not in general apply to unrecorded information, including information which at the time of the request has not yet been recorded or information which was recorded only in records which have been destroyed”

In view of the wide definition provisions have been included to deal with potential difficulties in finding information and with the sheer volumes of information which may be subject to requests.

Public authorities will not be obliged to provide information where they cannot find it without assistance. They may make reasonable enquiries of the applicant in order to identify and locate the information requested.⁷ In such circumstances, the public authority does not have to comply with its duty to answer the request unless such information is received. The right to require further information in order to locate the information required does not extend to requiring to know why the information is being requested.

There is no formal application procedure. An application simply has to be in writing, state the name of the applicant and address for correspondence and describe the information requested; requests may be electronically transmitted.⁸ A public authority must comply promptly with its duty to confirm or deny if it holds the information and to communicate the information if it does hold it. In any event, it must comply within 20 working days from receipt of a request. ⁹

The information that must be communicated is that which is held at the time when the request is received. However, the authority may continue its normal processing and therefore amendments or deletions may be made between the time the request is received and the time the information is communicated as long as those would have been part of the routine processes in any event.¹⁰

A code of practice has been produced by the Secretary of State on the handling of requests for access, dealing both with matters such as assistance to be given to applicants and complaints procedures.¹¹ A copy of the code is available on the DCA website, www.dca.gov.uk/foi/codepafunc.htm

6. FEES

A public authority may charge a fee for providing the requested information if it gives the applicant notice in writing to this effect.¹² The amount of the fee will be determined by regulations, which can also provide for fee exemptions or upper limits for certain categories of information.¹³ Current regulations provide that central government should provide up to £600 of information free of charge and other public authorities up to £450. This is calculated on the basis of the cost of searching and retrieving the information at a rate of £25 per man hour. Public authorities will be under no legal obligation to provide more information than can be found for that cost. The authority will still have a discretion to disclose further information if it is prepared to conduct additional searches by agreement.¹⁴ Authorities can charge disbursements such as copying costs in accordance with the regulations.

The applicant will have three months from the date of the notice to pay the fee before his request lapses. The 20 working days time period for compliance by the public authority is suspended until the fee is paid.¹⁵ The Act deals with some of the practical difficulties associated with providing information and among those it has a specific defamation defence.¹⁶ Moreover, it recognises that some requests may be vexatious and that authorities should not be obliged to respond to such requests.¹⁷

7. PUBLIC AUTHORITIES

The Act sets out a tight scheme for determining who is subject to these obligations. Schedule 1 sets out a list of all the public authorities covered. Schedule 1 is divided into seven sections. The Act covers government departments, the House of Commons, the House of Lords, the armed forces, local authorities, National Health Service bodies, educational establishments, police forces, and a long list of other public bodies.

The Secretary of State has a power to amend Schedule 1 but only to make relatively minor amendments, for example to allow for new government departments or new quangos to be added.¹⁸ A limited number of bodies are only included in Schedule 1 for some of their functions. An example is the British Broadcasting Corporation, which is covered in respect of information held for purposes other than those of journalism, art or literature. Publicly owned companies (a company is publicly owned if it is wholly owned by the Crown or one of the public authorities listed in Schedule 1 other than those which are only listed in respect of limited purposes) are covered, as is information which is held by another person on behalf of the authority.¹⁹

The Secretary of State has an order making power which will enable him to designate further bodies as public authorities where they appear to him to exercise functions of a public nature or they are providing services for a public authority under a contract.²⁰ There is a consultation obligation before this power is exercised.

The Secretary of State may designate further bodies who have certain functions of a public nature as public authorities and in doing so he may designate the particular functions. He also has a power to make a specific order excluding particular information from the FOI provisions.²¹

 For the purposes of requests made and actions taken against public bodies each government department is treated as though it is a different legal entity, although in law all are part of the Crown.²² 

8. RECORDS MANAGEMENT

The Act changes the rules relating to historical records and records held by the National Archives. The existing rules for public records are rather complex. Although the basic rule for public records is the “thirty year rule”, that is that records selected for retention as public records will not generally be available until 30 years after the creation of the latest part of the record,²³ the Lord Chancellor and the appropriate Minister have wide discretionary powers to provide for longer or shorter timescales for particular types of records. Moreover there are extended closure periods for some kinds of records.

The Act integrates the rights of access to public records with the new wider rights of access. Under the Act records will become generally available, subject to the application of the exemptions. After 30 years public records will become “historical records” and certain freedom of information exemptions will become inapplicable to them.²⁴ Further sets of exemptions will become inapplicable after 60 years and 100 years. A few exemptions can still apply to records even after the expiry of 100 years.

The Lord Chancellor must issue a code of practice for public authorities to follow in relation to the keeping, management and destruction of records.²⁵ A copy of the Code is available from the National Archives website, www.pro.gov.uk.

9. EXEMPTIONS

Part II of the Act sets out the exemptions. The exemptions can be categorised in a number of different ways. There is, in effect, a gradation in the exemptions. Some information is exempt on a class basis without any test of prejudice, both from the obligation to confirm or deny that it exists and from the obligation to provide it. These are some of the “absolute exemptions”.²⁶ At the other extreme some information that can give rise to an initial claim for exemption will only be exempt if its disclosure will result in prejudice to the public interest and, in any event, the public authority must acknowledge that it holds the information and give reasons for the refusal to supply it.

The absolute exemptions are:

• Information reasonably accessible to the public by other means ²⁷

• Information directly or indirectly supplied to the public authority by certain bodies dealing with security matters, including GCHQ and the Security Service²⁸

• Court and associated records²⁹

• Information subject to Parliamentary privilege ³⁰

• Information held by either House of Parliament whose disclosure would prejudice the effective conduct of public affairs ³¹

• Personal information where the applicant is the data subject or, in some circumstances, the data relates to another individual³²

• Information provided in confidence ³³

• Information prohibited from disclosure under other laws, obligations or where it would involve a contempt of court³⁴

Some of the absolute exemptions include a separate test in relation to the duty to confirm or deny, i.e., even though the exemption is an absolute one the public authority claiming it must consider whether to acknowledge the existence of the information.

Where exemptions are not absolute exemptions they can only be relied upon by the public authority if the public interest in maintaining the exemption outweighs the public interest in the disclosure of the information.

The exemptions subject to these rules include:

• Information intended for future publication ³⁵

• Information other than that falling within section 23, which is required for safeguarding national security ³⁶

• Information likely to prejudice the defence of the British Isles, any colony or the capability, effectiveness or security of the armed forces ³⁷

They also cover information which would prejudice or be likely to prejudice the economic interests of the UK; that which would prejudice or be likely to prejudice certain law enforcement matters; legal professional privilege and trade secrets or information which would or would be likely to prejudice the commercial interests of any person (including the holding public authority).

10. PUBLICATION SCHEMES

A public authority is required to go further than simply providing access to information on request, in that each public authority is required to adopt, maintain and, from time to time review, a scheme for the publication of information (a “publication scheme”) which specifies the classes of information it publishes or intends to publish, the manner of publication and whether a fee is payable.³⁸ In doing so, a public authority must have regard to the public interest in allowing public access to information held by the authority. A public authority is under a duty to publish information in accordance with its publication scheme.

These schemes must be approved by the Information Commissioner although there may be model publication schemes in place for certain classes of public authority (e.g. schools) which, if adopted, will only need specific approval if they are modified in any way.³⁹ 

11. ENFORCEMENT

In addition to the obligations to promote good practice and compliance with the Act, to approve publication schemes and disseminate advice about the Act, the Information Commissioner has an important enforcement role. An applicant for information can apply to the Information Commissioner if he is not satisfied with the response received from a public authority and he has exhausted the authority’s own complaints system.⁴⁰ In most circumstances the Information Commissioner is required to serve a decision notice on the complainant and the public authority.⁴¹ The notice will contain the steps to be taken by the public authority within a specified period if the Commissioner decides that the authority has not complied with its requirement to communicate the information.⁴² If the Information Commissioner needs further information from the authority before determining a complaint, an information notice can be served, requiring the authority to provide specified information to the Commissioner within a specified period.⁴³ The Information Commissioner also has powers of entry and inspection similar to those under the Data Protection Act 1998.⁴⁴

An enforcement notice can be served by the Information Commissioner where a public authority has failed to comply with any of its obligations under Part I of the Act (e.g. to communicate information or to do so within a particular timeframe), requiring the authority to take specified steps, again within a specified timescale.⁴⁵ In any case where an information notice, decision notice or enforcement notice has been served, the public authority can appeal to the Information Tribunal who will either allow or dismiss the appeal or substitute such other notice as could have been served by the Commissioner.⁴⁶ A complainant can also appeal against a decision notice to the Information Tribunal.⁴⁷

There is an exception from the obligation on a public authority to comply with a decision or enforcement notice where a Minister provides a formal certificate which “overrides” the order of the Commissioner.⁴⁸

Where a public authority has failed to comply with the codes of practice issued under the Act, the Commissioner may serve a “practice recommendation” stating that, in the Commissioner’s opinion, the authority has failed to comply with the code and specifying the steps that should be taken to do so.⁴⁹

The Act makes it an offence to alter, deface, block, erase, destroy or conceal records held by a public authority with the intention of preventing their disclosure to an applicant who has requested the information, the penalty being a fine. ⁵⁰

Where a public authority fails to comply with a decision notice (if steps were required to be taken), an information notice or an enforcement notice, the Information Commissioner can certify such failure in writing to the Court and the Court may then deal with the authority as if it had committed a contempt of court.⁵¹ The enforcement mechanism does not provide for private rights of action in the way that the FOI regime in the United States of America does.

12. RELATION WITH DATA PROTECTION

In dealing with personal data, the Government was faced with the difficult situation of resolving the interface between the new access rights and the restrictions on disclosures of personal information imposed under the Data Protection Act 1998, passed in order to implement a European Directive. The resolution provides that all requests for personal information are dealt with either under the data protection regime or taking close account of data protection considerations. The likely outcome is that data protection considerations will take precedence over FOI. This has however been subject to considerable criticism, both on the grounds of sheer complexity and on the basis that it may well lead to the withholding of more information than is strictly necessary.

13. COMMENTS

The legislation will entail significant process changes for public authorities in their records management and publication of information, as well as dealing with particular specific requests. The Act will be “retrospective” in the sense that there is no saving for information created before it came into effect. The combination of all of these will mean major changes for public authorities.

The new legal regime is complemented by regulations necessary for access to environmental information (the Environmental Information Regulations 2004).

It should also be noted that the Act itself does not repeal any statutory bars to disclosure. However, there is an order making power under which the Secretary of State will be able to repeal or amend any enactment which prohibits the disclosure of information held by a public authority where that enactment is capable of preventing the disclosure of information under the FOI right. It may be that this will be used to lead to a gradual dismantling of statutory bars found in other legislation.

There have, of course, been widespread criticisms of the exemptions as well as the timescale involved in implementation, which allows for a 5 year transition period, although those who are employed by public authorities and are responsible for preparing for this radical change may well not be among those complaining on that score.

Footnotes

^{1 SE1999/51 Edinburgh}

^{2 (CM4355)}

^{3 Section 87(3)}

^{4 section 87 (1)}

 ^{5 Section 1(1)}

 ^{6 section 84}

^{7 section 1(2)}

^{8 section 8}

^{9 section 10(1)}

^{10 section1 (4)}

^{11 section 45}

^{12 section 9 (1)}

^{13 section 9(4)}

^{14 section 13}

^{15 section 10}

^{16 section 79}

^{17 section 14}

^{18 section 4 1}

^{9 section 6}

^{20 section 5}

^{21 section7}

^{22 section 81}

^{23 Public Records Act 1958 amended by Public records Act 1967 section 5(1)}

^{24 section 63}

^{25 section 46}

^{26 section 2(3)}

^{27 section 21}

^{28 section 23}

^{29 section 32}

^{30 section 34}

^{31 section 36 and 2(3)(e)}

^{32 section 40}

^{33 section 41}

^{34 section 44}

^{35 section 22}

^{36 section 24}

^{37 section 26}

^{38 section 19}

^{39 section 20}

^{40 section 50}

^{41 section 50 (3)}

 ^{42 section 50 (4)}

^{43 section 51}

^{44 Section 55 and schedule 3}

^{45 section 52}

^{46 sections 57 and 58}

 ^{47 section 57 (1)}

^{48 section 53}

^{49 section 48}

^{50 section 77}

^{51 section 54}

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