Freedom of Information – a brief guide David Evans

The Information Commissioner's Office

The ICO’s mission is to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

ICO’s role

• Enforce and regulate

– Freedom of Information Act

– Data Protection Act

– Environmental Information Regulations

– Privacy and Electronic Communications Regulations

• Provide information to individuals and organisations

• Adjudicate on complaints

• Promote good practice

Our performance

c 212,134 – calls to our helplinec 2.29m – visits to our website

Data protection•33,234 – data protection cases received•32,714 – data protection cases closed •c 334,000 – organisations notifying

Freedom of information•3,734 – freedom of information cases received•4,196 – freedom of information cases closed

FOI – what is it?

A general right of access to information held by public authorities

Other countries

• Sweden – 1766• United States – Federal law – 1966• Australia – Federal law - 1982• New Zealand – 1982• Ireland – 1997• England, Wales and Northern Ireland - 2000• Scotland - 2002• Zimbabwe - 2002

Before FOI in the UK

• 1957 - Windscale fire – report secret for over 30 years• 1972 – Thalidomide – injunction against publishing details of

compensation offered by the manufacturer• 1993 – Trident – UK would not publish safety information but

equivalent material was available in the USA• Use of US FOI

- Cruise liner hygiene - Meat inspections - Pollution - Pesticides - MPs’ rights

Since FOI

• Information released routinely

• Commercial deals exposed

• Legal advice revealed

• Academic impact

• MPs - results - consequences

Important bits

• Section 8• Section 10• Section 12• Section 14• Section 16• Section 17• Section 19

Section 8

A request has to be;-in writing-states the name of the applicant-provides an address for correspondence

Section 10• Time to reply

- 20 working days• Stopping the clock

Section 12• Costs • £450 total• £25 per hour

• Cannot pass the cost onto the requestor

Section 14

• Focus is “vexatious requests” and not vexatious requestors

• Five things to consider- Can the request fairly be seen as obsessive? - Is the request harassing the authority or causing distress to staff? - Would complying with the request impose a significant

burden in terms of expense and distraction? - Is the request designed to cause disruption or annoyance? - Does the request lack any serious purpose or value?

Section 17

Refusal notice• Issued as soon as possible (and within 20 days)• It must be clear and specific and explain why the

information is being withheld.• Complaints procedure (if you have one) and the right of

appeal to the ICO• Required when neither confirming nor denying whether

information is held or exemption applies. • Not required if you don’t hold the information – just tell them

within 20 days• If you don’t - poor practice • EIRs – some differences compared to FOI

Section 16

• Duty to provide advice and assistance• Comply with the Section 45 Code of Practice (MoJ)• Practical steps

– Make early contact with an applicant and maintain a dialogue with them throughout the process of dealing with the request keeping them informed at every stage.

– Record and document all communications relating to any clarification and the handling of any request.

– Make sure you use an appropriate method of contact.

Section 19 - Publication schemes

• Why?• What do you have to do?• The Information Commissioner’s

Model Publication Scheme• What we’ve already done

The exemptions

• Over 20 in total• Tightly drawn up so that their use is limited• Cover

– Security service info– Police and courts info– Govt policy making– Health and safety– Legal info– Info in confidence– Personal information and many others

The public interest test

• The “public interest” is that which serves the interests of the public.

• The public interest test applies to relevant sections of both the FOIA and the EIR.

• Many FOIA exemptions and all EIR exceptions are “qualified”, meaning that they are subject to a public interest test.

• Even if a qualified exemption or exception covers the requested information, the information must still be disclosed unless the public interest in maintaining the exemption is greater than the public interest in disclosing it.

• The decision involves the balancing of factors on each side. • Under the FOIA, an authority must apply the public interest

separately to each exemption.

Environmental Information Regulations

• the state of the elements of the environment, such as air, water, soil, land;

• emissions and discharges, noise, energy, radiation, waste and other such substances;

• measures and activities such as policies, plans, and agreements affecting or likely to affect the state of the elements of the environment;

• reports, cost-benefit and economic analyses used in these policies, plans and agreements;

• the state of human health and safety, contamination of the food chain and cultural sites and built structures (to the extent they may be affected by the state of the elements of the environment).

EIRs – key differences from FOI

• EU Directive – 2003/4/EC

• Verbal as well as written requests for information

• Exception for information not held

• Right to inspect

• Exceptions for unfinished documents and internal communications

David.Evans@ico.gsi.gov.uk01625 545772

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