The Freedom of Information Act 2000 (FOI) stands as a cornerstone of transparent governance, enabling citizens to access information held by public authorities. In this article we will summarise the scope of the Freedom of Information Act, and what is excluded from it.
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The Scope of the Act
The FOI Act empowers individuals to request information from public authorities. It’s a mechanism for fostering transparency and accountability. It applies to any organisation listed in Schedule 1 of the FOI Act. Section 3(2) of the Act also says information falls under the scope of the Act if:
(a) it is held by the authority, otherwise than on behalf of another person, or
(b) it is held by another person on behalf of the authority.
What Does This Mean?
Anything held by a public authority but not on behalf of something or someone that is not a public authority falls under the scope of the Act. That means only things held by public authorities themselves for their own purposes is covered.
However, if public authority information is held by someone else for the public authority then it falls under the scope of the Act too.
Schedule 1 of the Act
The kind of organisations covered by the Act include:
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government departments
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the houses of Parliament
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the NHS, including GPs, dentists and pharmacies
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schools and other educational establishments
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the fire service
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the police
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local government, including parish councils
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regulatory bodies
Simply receiving public money does not mean that an organisation is subject to the FOI Act. For example, charities that receive government grants or suppliers of products and services to government departments are not automatically within the scope of the Act.
Joint Ventures and Publicly Owned Companies
Sometimes public authorities start companies or other businesses to deliver certain functions. For example, The Department for Transport wholly owns HS2 limited for the development and delivery of a new railway.
In many instances these organisations will fall under the FOI Act too. However, the situation here is a little more complicated.
Broadly, the company must be wholly owned by a body covered by schedule 1 of the Act, or be controlled by them. However, even it is isn’t it may still hold information on behalf of a public authority that falls within the scope of the Act.
Private Sector Companies
Generally FOI Act does not cover private sector companies. However, if a public sector company uses a contractor of some form then the information held by the contractor on behalf of the contractor falls within the scope of the Act.
Case Study
In the first scenario WuDo Solutions provides training on GDPR to people working at a local authority.
The content of the training and the supporting materials would not fall within the scope of the Act, because it is held by WuDo Solutions and not on behalf of the local authority. However, the local authority may still under FOI confirm if and when training was delivered, to how many people etc. The cost of the training may be disclosed unless and exemption applies (see below).
In the second scenario WuDo Solutions audits an NHS Hospital’s record of processing activity (ROPA). As part of that we write a report that is presented to a committee of the Hospital’s Board. The report, because it is held by the Hospital, would fall under the scope of the FOI Act.
Exceptions to Releasing Information under the FOI Act
If you are a public authority or you hold information on behalf of one then it is in theory disclosable under the Act. However, there are exemptions to disclosure.
Two types of exemptions exist:
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absolute exemptions, where the information is automatically exempt from disclosure because it is a certain class of information. These exemptions often apply to information that is available in another way.
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prejudice based exemptions, where information may be exempt if releasing it could cause significant prejudice. These exemptions are subject to the public interest test.
Absolute Exemptions
Examples of absolute exemptions include:
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information that is already available
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information that is intended for future publication
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personal information about the requestor, because that is available via a subject access request.
You can find out more about absolute exemptions to disclosure here.
Prejudice Based Exemptions
Prejudice based exemptions, which are subject to the public interest test, include:
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commercially sensitive information
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information that may prejudice the effective conduct of public affairs
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health and safety related information
You can read more about prejudice based exemptions here.
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The Public Interest Test
When a prejudice based exemption may apply you need to apply the public interest test.
At its core the public interest test requires you to work out if the public interest test is best served by releasing the information requested, or withholding it.
Find out more about the public interest test here.
Common FOI Myths
There are a number of things people think are not inside the scope of the freedom of information act. However, typically these are not trues.
Audio and Video
Audio and video recordings are within the scope of the Freedom of Information Act. It is not limited to only written information.
Social Media
The content of social media is not necessarily disclosable because it is already published. However people can make requests for information via social media. These requests must be honoured. The scope of the Freedom of Information Act also covered things like whatsapp or text messages if thay are held.
The Act Applies to the UK
Anyone in the world can make a request for information. They do not need to be in the UK or be a British national.
Draft Documents are Excluded
Draft documents do fall within the scope of the freedom of information act. Therefore they must be included in responses. Best practice is to delete drafts when documents are finalised.
You Have to Keep Everything
Records can be deleted when they have reached the end of their useful life. There is no obligation under the FOI Act to retain records indefinitely.
Things Not Covered by the Act
The scope of the freedom of information only extends to recorded information. Recorded information does not include anything that would not normally form part of corporate records.
Examples of this include:
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inherently temporary media like voicemails or post-it notes
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disordered manual records, like notebooks or similar working tools
They will, however, form part of your records if you do decide to keep them.
The Information Is Not Held
If you do not hold the information, for whatever reason, you are not obliged to get it or create it. As noted above there is no need to keep information just because someone may ask for it.
The Information Is Held by Someone Else
If you do not hold the information but you know it is held by someone else you do have a duty under the FOI Act to assist requestors, so should direct them to where the records may be.
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