Freedom of Information Explained

Contents

• Background and Objectives
• Public Authorities
• Scope of Information
• Right to Information
• Proactive Disclosure
• Exemptions and Exceptions
• Applying the Public Interest Test
• Refusing a Request on the Grounds of Cost
• After Information is Released
• Appeals and Reviews

The UK Freedom of Information Act 2000 (FOIA, the FOI act or the Act) represents a significant milestone in promoting transparency, accountability, and access to information within the United Kingdom. Enacted on January 1, 2005, the FOIA gives every person the right to access information held by or on behalf of public authorities, usually free of charge.

In this article we will explore key aspects of the FOIA. We will explore its scope, the entities it applies to, and the types of information it encompasses. Other articles will provide more detailed guidance on some of the topics introduced below. We will also explore guidance on handling requests.

The Freedom of Information Act does not create a general duty in law to retain information or treat every record they hold as official information. It also does not create a duty to create information or answer questions to which no recorded information is held e.g. to give an opinion on a particular topic.

The Act applies to public authorities in England, Wales and Northern Ireland, as well as UK-wide public authorities based in Scotland. For other Scottish public bodies there is a separate Act which is slightly different from the legislation we will discuss here.

There are also separate regulations relating to the disclosure of some types of environmental information.

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Background and Objectives

The FOI act was introduced as a means to foster a culture of openness and to enhance public trust in government institutions, or any body, public sector or not, that acts as a public authority. It was a response to growing concerns regarding the lack of transparency and the opacity of decision-making processes within public authorities. The purposes of the Act were to establish a framework that gives people access to information about the operations, policies, and decisions of government departments, enhancing their ability to hold these authorities to account. People could expect an answer to their questions in case there were things that concerned them or if someone suspected wrongdoing.

People seeking information under the FOI Act are often known as a requester or an applicant.

Public Authorities

Public authorities are entities that perform public functions, regardless of their legal form or whether they are publicly funded or not. This includes government departments, local authorities, the National Health Service (NHS), schools, universities, and the police. This means the Act also extends to certain bodies that carry out functions of public interest, such as utility companies and non-departmental public bodies, and therefore is not limited to the government or the public sector.

In some instances the Act applies to private sector organisations providing public services under contract. For example the Act applies to Channel 4, HS2, and Luton Airport among other organisations that are not obviously in the public sector.

It does not apply to a company that is wholly in the private or charity sector or to any individual person, even if they work a relevant organisation.

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Scope of Information

The FOIA covers a broad spectrum of information held by public authorities, promoting a culture of transparency across various aspects of governance. The Act encompasses recorded information in any format, including written documents, emails, photographs, audio recordings, and computer files. It applies to information held at the time of a request, as well as information created or received in the future. However, the Act does not apply to information that falls outside the definition of “recorded information,” such as someone’s personal recollections or opinions.

However, the definition of “recorded information” is broad. It includes written records, but also recordings and videos, research data. It includes draft documents as well as final versions. It is therefore important to have an effective records management strategy to help manage the information you hold.

The Right to Information

One of the core principles of the FOIA is the right to request and obtain information from public authorities. Any individual, regardless of nationality or location, has the right to make a request for information held by a public authority. The request must set out the desired information, and should include the requester’s name and contact details. There is no need for people to give a good reason for their request.

Public authorities are obliged to respond to such requests promptly and within specific timeframes. This is typically 20 working days but there is a longer time limit for schools.

Requests must be made in writing. However “in writing” includes email, social media or other written communication media.

Proactive Disclosure

In addition to the right to request information, the Act also promotes proactive disclosure by public authorities. This encourages the routine publication of certain information, reducing the need for individual requests. Public authorities are encouraged to publish information, such as policies, guidelines, financial reports, and performance data, on their websites or in other accessible formats. This is known as having a publication scheme. The Information Commissioner’s Office (ICO) has set out detailed guidance on what should be included in a publication scheme. For example a publication scheme should include policy documents, financial information, and information about services. You will find a publication scheme on most public authority or public sector organisation websites.

Exemptions and Exceptions

While the FOIA promotes openness, it also recognizes that certain types of information require protection for legitimate reasons. The Act provides for exemptions and exceptions that allow public authorities to withhold information in specific circumstances. These exemptions are divided into two categories: absolute or class-based exemptions and exemptions subject to the public interest test.

Absolute exemptions

These exemptions restrict disclosure without considering the public interest, whereas exemptions subject to the public interest test involve a balancing exercise between the public interest in disclosure and the public interest in maintaining the exemption.

Absolute or class-based exemptions include matters of national security, personal data, information provided in confidence, legal privilege, court records, internal deliberations, communications with the monarch and royal family, and parliamentary privilege.

Examples of absolute exemptions include:

• personal information about the requestor. This is covered by the Data Protection Act (this would be a subject access request) so is addressed by other legislation.

• information already available to the applicant or requestor through other means. In this instance a FOI Act would not apply.

• anything that would interfere with parliamentary privilege.

Public Interest Exemptions

Exemptions subject to the public interest test cover areas such as law enforcement and security, commercial interests, privacy and personal information, health and safety, and research and statistics. The application of these exemptions depends on the circumstances of each case. Public authorities are required to assess competing interests before deciding whether to disclose or withhold the information.

Examples of this type of exemption include:

• information requests relating to things intended for future publication (whether on a publication scheme or not)

• environmental information, because this may be covered by the Environmental Information Regulations

• investigations and proceedings undertaken by a public authority

Applying the Public Interest Test

When considering a public interest exemption public authorities have to recognise that releasing information is always in the public interest. They have to demonstrate that the public interest is harmed more by releasing the information than withholding it.

That means they have to show there is a good reason for keeping the information private. A public authority must explain this in its response to the requestor.

Also, instead of refusing the whole request the response can be redacted. This means only part of what is requested can be released. For example a response to a request for information could redact personal data for privacy reasons, rather than refusing the information request completely. However redaction is more work and this could impose a cost.

Refusing an Information Request on the Grounds of Cost

There is usually no charge to requestors for complying with an information requests. However, the cost of complying can be taken into account by the receiving organisation in some circumstances.

Costs include the cost of printing and posting information, if that is what the requestor wants. It can also include staff time involved in handling the request such as gathering the information for release.

The Act sets out what is known as the appropriate limit in terms of staff time and costs involved in handling a request. This is typically 18 hours or £450.

In these circumstances organisations can charge a fee for the costs involved, or refuse to release the information. The fee must cover the costs or materials, postage, and £25 per hour for staff time.

After Information is Released

Information released under the Act is generally considered as being released to the word at large. However, public authorities are still the copyright holders of the information. As such they can limit the purposes for which it can be reused. This is typically in line with the provisions of the open government licence.

Appeals and Review

The FOIA provides mechanisms for challenging decisions made by public authorities regarding the disclosure of information. Sometimes a requester is dissatisfied with the response or believes that the information has been wrongfully withheld. In cases like this they have the right to request an internal review by the public authority. If still unsatisfied, an appeal can be made to the ICO. As an independent body responsible for overseeing and enforcing the FOIA. The ICO has the power to review decisions, mediate disputes, and issue enforcement notices to public authorities to ensure compliance with the Act.

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