The Freedom of Information Act (FoIA) will come into force early next week, and is seen as a step in the right direction in respect of transparency obligations on behalf of Her Majesty's Government of Gibraltar (HMGoG). Whilst England and Wales legislated their own Freedom of Information Act as early back as 2000, Gibraltar's progression in this space has evolved in line with technological development and seen a more measured response.
What is freedom of information for the purposes of the FoIA?
The soon to be enacted FoIA will give individuals the right to ask public authorities whether they hold certain information, and if such information is in fact held, the applicant will have the right to be given the information if requested through the correct channel and the correct procedure is followed.
Certain conditions do apply to the FoIA such as a restriction on disclosing any information to a member of the public that would contravene any of the principles contained within the Data Protection Act 2004 (DPA), as read with the "Gibraltar GDPR"1 or otherwise would fall to be disclosed under that regime. For example, exercise of a data subject's right of access in the form of a Data Subject Access Request (DSAR) will fall within the remit of the DPA/Gibraltar GDPR and will be outside of the scope of the FoIA, so it will be important not to confuse these distinct rights.
Further still, the FoIA specifically excludes any request for information which wholly or partly relates to environmental information as any applications for such information will continue to be subject to applicable procedures under the Environmental Regulations 2005 and the Freedom of Access to Information on the Environment Regulations 2005.
What is meant by public authorities?
The list of public authorities that are subject to the FoIA will be listed in the Schedule to the FoIA in due course. However, a phased introduction will mean that the first three piloted departments will be the Department of Education, the Human Resources Department and the Gibraltar National Archives.
Although the phased approach being taken by HMGoG will mean that only three departments will participate at first, the ultimate goal is to have a system in place which will apply to most public authorities. For the purposes of the FoIA, the definition of "public authority" includes:
- government departments;
- any body or person that carries out functions of public administration;
- any body or person that is under the control of either Government departments or persons that carry out functions of public administration (provided they have public responsibilities, exercise functions of a public nature or provide public services); and
- a person or body who the Minister with declares to be a public authority. The Minister for the purposes of the FoIA is a minister designated by the Chief Minister by Notice in the Gibraltar Gazette.
Who is eligible to apply for information?
Under section 4 of the FoIA any person who has attained the age of 18 and is resident in Gibraltar has the legally enforceable right to apply for and be given access to information held by the public authority in question.
How do I make an application for information?
Applications for access under section 5(2) of the FoIA must:
- be in writing;
- specify that it is made under the FoIA;
- be accompanied by an application fee and applicable charge under (section 8); and
- contain such information as in reasonable for the purposes of identifying information in question.
HMGoG has also announced a dedicated portal to be added to the e-services section of its website (www.gibraltar.gov.gi), which will include guidance notes, forms and general information in respect of applications under the FoIA. General queries in respect of the FoIA can also be addressed to firstname.lastname@example.org. The Citizens' Advice Bureau (CAB) will be the point of contact for anyone who requires assistance in person with the operation of the electronic portal.
When can I expect to hear back from the public authority in question?
Public authorities have one month from receipt of the application to either (i) disclose information in their possession or (ii) make the decision to refuse to do so. However, under section 7 of the FoIA, public authorities may extend the period of one month to two months in cases where they reasonably believe that the complexity and/or volume of the information means that it would be impracticable to comply with the request or make their decision on refusal within one month.
Refusal should have a clear basis under an applicable exemption, given the FoIA provides a presumption in favour of disclosure. Some of the reasons under which a freedom of information (FoI) request may be refused under by a public authority include but are not limited to the following:
- the public authority does not hold the information;
- the request for information is manifestly unreasonable;
- the information is otherwise already reasonably accessible to the applicant;
- the disclosure would reveal confidential internal discussions between Ministers, public authorities and other persons (e.g. cabinet documents or briefing papers specifically prepared for use of a Minister);
- the information is protected by parliamentary privilege or legal professional privilege
In addition, the FoIA will provide for refusal on more general grounds that the disclosure would adversely affect certain public interest grounds and/or the security of Gibraltar.
What will the fee be (if any)?
Subject to section 8 of the FoIA – all application fees and charges shall be prescribed by the Minister by regulations and different fees or charges may apply to different public authorities. An initial charge of £10 is expected to be levied per request, but this will be subject to review. There will be no additional cost for tracing, compiling and supplying the information where this is calculated to be £100 or less.
Is there anything else I should know when applying for information?
Public authorities will also be under a duty to provide the information in a particular form/format so requested by the applicant, unless:
- it is reasonable to make information available in another format; or
- the information is already publicly available and easily accessible.
Where an FoI request is refused, the refusal shall inform the applicant that he may make representations to the public authority and also of their right to apply to the Information Commissioner for a determination. The information Commissioner in this respect is expected to be the Gibraltar Regulatory Authority (www.gra.gi).
Under section 20 of the FoIA a party who is not satisfied with a determination made by the Information Commissioner (or in certain limited cases, the Governor) may, within 30 days after notice is given, appeal the determination to the Supreme Court of Gibraltar, which may then decide one of two things:
- to uphold the action of the public authority; or
- to direct the disclosure of the information requested by the applicant.
The decision from the Supreme Court shall be final save that an appeal against such decision may be brought to the Court of Appeal on a point of law.
1 Following the end of the transition period the EU GDPR now forms part of Gibraltar law by virtue of section 6 of the European Union (Withdrawal) Act 2019, as read with (i) section 2(1B)(a) of DPA; and (ii) the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019. This is now referred to as the "Gibraltar GDPR", which is essentially the EU GDPR read with certain modifications.
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.