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 | | From: | Robert Henderson | | Subject: | The Freedom of Information Act - a brief guide | | Date: | Sat, 8 Jan 2005 12:05:41 +0000 |
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 | The Freedom of Information Act (FOIA)
A Brief Guide
Robert Henderson
Contents
1. What is happening in 2005?
2. How effective will the FOIA be?
3. Publication schemes
4. What organisations does the FOIA cover?
5. What data is excluded?
6. The Public Interest Test
7. The cost of making an FOIA request
8. How quickly must a public body reply to my request?
9. How to make an FOIA request
10. Getting the most out of the FOIA
11. What type of information can I get?
12. What must I be told if my FOIA request is refused?
13. Illegitimate reasons for refusing an FOIA request
14. What can I do if a request is unreasonably refused?
15. Will the Information Commissioner be willing to act?
16. Will the Information Commissioner be able to cope?
17. What happens if data has been illegally destroyed?
18. The FOIA and the DPA
19. Environmental Information Regulations (EIRs)
1. What is happening in 2005?
The major provisions of the FOI come into force on 1 January
2005. They will, in principle, allow any person to obtain
any data held by a public body (or any private body
officially deemed to be performing a public function). It
is not necessary to be a British citizen to apply or to be in
the UK when the application is made.
The FOIA 2000 (UK) has force in England, Wales and Northern
Ireland. A broadly similar Act applies to Scotland - the
FOIA Scotland 2002. Unless I state otherwise, when I write
FOI, I shall mean both Acts.
In some respects the Scottish Act has strengthened powers -
for example a more narrowly defined ministerial veto and a 20
day limit on internal appeals against a refusal - the UK FOIA
has no limit. It is always worth remembering that information
held in Scotland may be applicable to the rest of the UK,
especially where this is shared information. There will be
occasions where the use of the Scottish FOIA will be
preferable to the main Act.
The FOIA has spawned the Environmental Information
Regulations 2004 and the Environmental Information
(Scotland) Regulations 2004 (I shall call them collectively
the EIRs). These have administrative provisions broadly
similar to the FOIAs, although they do have less onerous
requirements attached to them in some respects. However,
they are very much a specialist interest and, to keep matters
simple, all I shall say about them is that the general rules
which apply to the FOIAs are a good guide to how the EIRs
should be used. I do include a section on their very wide
scope at the very end.
Finally, the Data Protection Act 1998 (DPA) has been
strengthened by extending the rights of individuals to see
the files held on them by public authorities, for example,
their medical records. There is no change in the DPA powers
with regard to private bodies and individuals.
2. How effective will the FOIA be?
This is immensely difficult to assess in advance, but much
public information can potentially be withheld (more on that
under "What data is excluded"). However, even where material
should or can legally be withheld, there is always a chance
that the person dealing with the request may send out
something they should not, through ignorance, error or even
a deliberate wish to blow the whistle on someone or
something.
There is also no obligation on public bodies to record or
keep copies of data. However, it is an offence under the FOIA
to destroy data after an FOIA request has been made with
the intention of denying that information to the person
making the request.
There have been persistent media reports leading up to I
January 2005 that public bodies have been engaged in a
widespread destruction of data before the FOIA comes fully
into force. Nothing can be done about that. Even if you know
or have good reason to believe data existed, if it has been
destroyed before 1 1 2005 that is the end of the story.
Various Government spokesmen have admitted that much data has
been destroyed, but claim that this is merely good
administrative housekeeping which has been largely the
consequence of public bodies reviewing their record keeping
to ensure that data can be readily identified and retrieved.
If you will believe that doubtless you will also believe that
there are fairies at the bottom of your garden. However, this
claim by Government does have one important effect: it will
make any refusal to supply information on the grounds of
difficulty of identification or the cost of retrieval more
difficult to sustain.
A general effect of the FOIA has already been seen - public
bodies making data available for public consumption even
before the FOIA has come fully into force. The most notable
instance of this is perhaps the decision of MPs to place
their expenses in the public domain. However, many other
public bodies either have begun a similar process or intend
to in the near future. Most of such information will be
available on websites so check those thoroughly before
making an FOIA request.
3. Publication schemes
The FOIA also places an obligation on public authorities to
develop a publication scheme to advise the public on the
classes of information it publishes or intends to publish and
whether access to the information will be free or charged
These schemes have to be approved by the Information
Commissioner.
There is no 20 day (or longer) waiting period for information
from such schemes. The data must be readily available on
request. If they fail to do so, refer the failure to the
Information Commissioner.
4. What organisations does the FOIA cover?
All wholly or partially publicly funded bodies including all
Government Departments, Agencies (eg Benefit Agency), local
councils, Parliament, devolved Assemblies, state funded
educational establishments, the police, the armed forces,
state regulators, quangos, publicly owned companies, the BBC
and Channel 4.
In addition private bodies which perform a public or quasi
public function may be designated as coming within the FOIA
by Parliamentary Order, for example The Law Society.
Importantly, Private Finance Initiative (PFI) companies are
potentially subject to the FOIA because they are arguably
performing a direct public function. In practice, there
will probably be a distinction between a PFI company running
something, for example, a school, and one providing parts of
the infrastructure, for example, building a hospital. A
private body merely providing a service to government, for
example, one doing research for the Government, will
probably not come within the FOIA.
The judgement as to whether a private body does fall within
the FOIA will be made by the Lord Chancellor's Department
(LCD) on advice from the appropriate government department.
Therefore, if a private body claims not to be subject to the
FOIA, make an application for its designation within the FOIA
to the LCD.
5. What data is excluded?
There are no less than 23 exclusions. These include the
obvious such as the security and intelligence agencies
(but not Special Branch which is part of the police), the
National Criminal Intelligence Service (NCIS), special
forces, courts and tribunals and the obscure such as jointly
owned companies (eg, limited companies owned by one or more
local authorities).
The largest obvious fly in the ointment is the power of
Cabinet ministers to veto the release of information
regardless of rulings by the Information Commissioner, the
courts or the Information Tribunal. However, the Lord
Chancellor, Lord Falconer, stated in an interview with the
Daily Telegraph on 1 1 2005 that "The whole cabinet, we
have decided, must agree before it [the veto] is used. Where
it is used, detailed reasons have to given to Parliament and
those reasons and the use of the veto are subject to judicial
review. It would be very exceptional". That would seem to be
a substantial barrier to ministerial abuse.
Other potentially broad exemptions (1) where it is judged
that the release of information would constitute a danger
to an individual and (2) if a request is judged to be
"vexatious", a judgement akin to the idea of the vexatious
litigant. Both grounds for refusal would seem to be ripe
for appeals.
Requests can be refused on the grounds of cost - see below -
because they are unreasonably broad, badly constructed or
repeated within a short period of time.
Copyright should not be a problem so this cannot be used as a
reason for not providing information. However, reproducing
data which you receive under the FOIA will be subject to
normal copyright rules.
Problems could arise in the case of defamation where data is
derogatory, for example, a health officer's report on a
restaurant. It will be a case of suck-it-and-see to
establish case law. Always bear in mind that data can be
incorrect and go out of date.
Personal data will generally be absolutely excluded.
However, it is worth pointing out that the boundary between
public and private data is frequently not clear cut. What
will not automatically be excluded are the details of what
people have done in the process of work or other
relationships which are deemed to be within the public
service.
6. The Public Interest Test
Although there are many exceptions, where they involve data
held by central Government, what is known as the Public
Interest Test (PIT) may override an exemption.
The PIT test in the main FOIA rests on the "reasonable
opinion of a qualified person". The Scottish FOIA scraps the
"reasonable opinion" and is thus less restrictive.
The PIT has to be balanced against (1) the possibility of
prejudice to the proper running of public business, (2) the
disclosure of trade secrets, (3) whether the information will
be published in the foreseeable future and it is reasonable
to wait for the publication and (4) national security issues.
The prejudice test will apply to defence, international
relations, relations within the UK, the economy, law
enforcement, audit functions, health and safety and the
commercial interests of the UK.
If Britain follows other common law based countries such as
Canada and the Republic of Ireland, the presumption will be
in favour of the PIT if the arguments for and against
disclosure are deemed to be equal.
There are certain bodies and classes of data to which the PIT
does not apply. These are: security bodies, court records,
where there is a statutory bar on disclosure, Parliamentary
Privilege, most personal data, data which is already
accessible to the applicant and where a breach of confidence
(as legally defined) would occur.
7. The cost of making an FOIA request
Assuming no exemptions apply, central government bodies have
to supply any data they hold provided it will not cost more
than Å“600 in manpower to obtain. For local councils and
private bodies deemed to have a public function, the figure
is Å“450.
If the cost of the request is deemed to be above the Å“600 or
Å“450 figure, the public body may either refuse the request or
charge for part or whole of the cost.
If a request is refused on the grounds of cost or the charge
is thought to be unreasonable, the person making the FOIA
request can appeal to the Information Commissioner.
The recipient of an FOIA request may charge for the cost of
copying such as photostating.
8. How quickly must a public body reply to my request?
Other things being equal, within 20 working days of you
sending it unless the data is held in archives (30 working
days allowed), schools (60 working days allowed) or the
request involves troops on operational duty or the data is
held abroad (60 working days with the consent of the
Information Commissioner).
However, common sense suggest that there will be occasions
where there are legitimate reasons for a failure to reply
within the 20-day period - delay or loss of your request in
the post (it is best to send any request by recorded
delivery), staff absence and so forth.
Legally, you would be entitled to complain to the
Information Commissioner or go to court if the delay is
longer than the statutory limits, but commonsense is required
in judging whether that is necessary.
When you receive a reply, it must be a full one not merely a
letter of acknowledgement or a holding letter.
If an FOIA request is sent to an office which does not deal
with the data, that office has a responsibility to direct
your request to the correct office. They are not permitted to
send you on a paperchase by writing back and saying you
should have written to a different address or person.
9. How to make an FOIA request
Any person may apply for information without giving a reason
for the request.
Your request may be by letter, email or fax. In the case
of the EIR, a request may be made orally.
You do not need to cite the FOIA and or the EIR as the
basis for your request but it is advisable to that you do so
to remove any confusion.
You should state the preferred format for the reply -
photostats, email, newly compiled information by public body
etc.
The ideal format for most inquiry responses would be by
email because that would avoid any copying costs. However,
if you wish the data for legal purposes, hard copy is
advisable because you may need to produce it in court. It is
also worth bearing in mind that many official documents end
up with handwritten notes on them. You probably will not get
that data if you simply ask for the information by email
because the document will normally be copied to you from the
hard disk or other electronic storage facility.
If you do ask for data by email, minimise the chances of
viruses by insisting that it is sent to you in plain text
in the body of the email rather than by attachment.
10. Getting the most out of the FOIA
Find out who is the official FOI officer within the
organisation - all FOIA encompassed bodies should have one.
Most public bodies will have a website containing the
details of their FOI officer.
Keep your requests as simple and concrete as possible.
Use the FOI officer to help you target your enquiries.
Public bodies have a legal obligation to advise and assist
within the limits of what is "reasonable". The FOI officer
can help you to identify the computer files and other data
you require before you submit your request.
When phrasing your FOI request, always keep to the forefront
of your mind that public servants will instinctively
interpret your request in the narrowest possible way. Remove
as much ambiguity as possible before you submit the request.
Avoid sending the same type of broad request at the same time
to a number of different bodies which cover the same general
area of work, for example, those dealing with environmental
issues. They are likely to be in contact with one another
and if you get a reputation as a serial requester, it may
damage your chances of getting anyone's cooperation.
11. What type of information can I get?
The FOIA is retrospective. In other words, it does not
merely cover data created since the Act came into force but
all data.
Assuming your request does not fall foul of one of the
exemptions, potentially anything a public body holds which
is deemed to be public rather than private information,
including data supplied by private companies. The data may
be held in any medium, including recordings of conversations
on tape, CD etc.
Data does not have to be in the form you want for you to
request it. If the basic data is held on a database it can be
retrieved using the database's search program. This manner
of requesting data also has the advantage of taking little
time and being in a form which can be emailed to you. Hence,
such requests should always fall with the cost limits of
making an FOIA request and avoid copying charges.
12. What must I be told if my FOIA request is refused?
A public body cannot simply say it is refusing a request. It
must give detailed reasons for refusing a request except in
cases where harm might arise from not only the release of
data but even the detailed reasons for the refusal, for
example, if the police are keeping someone under
surveillance in anticipation of a crime being committed.
13. Illegitimate reasons for refusing an FOIA request
Public bodies cannot refuse a valid FOIA request for such
reasons as (1) they would only release data if ordered to do
so by a court, (2) it is claimed the data is for internal use
only, (3) the request is deemed to be a "fishing expedition",
(4) that it creates a dangerous precedent or (5) the request
serves no useful purpose.
Doubtless many other improper reasons will be dreamed up. The
way to decide if they are improper is simple: just ask
yourself whether the data is covered by an exemption. If not,
the reason is bogus.
14. What can I do if a request is unreasonably refused?
Public bodies are being encouraged to set up their own
internal appeal procedures. Under normal circumstances this
should be your first point of appeal against any refusal you
consider unreasonable. However, if the public body either
does not have such am internal process or if there is
undue delay in hearing an appeal, you may go directly to the
Information Commissioner.
If a public body's internal appeal procedure comes down
against you, you can appeal to the Information Commissioner
to overturn their decision.
If the Information Commissioner's decision goes against you
and you believe it to be unreasonable, you may appeal to the
Information Tribunal or seek a judicial review of his
decision.
If the Information Tribunal decision goes against you or a
ministerial veto is used, you may seek judicial review.
The Information Commissioner has the power to order the
release of information on the pain of legal penalties.
Ultimately, a refusal to supply information would become a
contempt of court, which in theory at least can result in
imprisonment.
15. Will the Information Commissioner be willing to act?
I have had considerable experience of the Information
Commissioner's office over the past seven years. That
experience has related to the DPA. It has not
been encouraging for those who will be seeking information
from public bodies, the disclosure of which would
embarrassing or worse for them.
Both the present commissioner, Richard Thomas, and his
predecessor have been persistently unwilling to use their
statutory powers to force the disclosure of information
against any data holder who refuses to divulge information
where the data holder is powerful or influential, for
example, the police or national newspapers. The probability
is that the same bad habits will exist with the FOIA.
If the commissioner will not use his legal powers, the only
recourse a person making an application has under either
the FOIA or the DPA is to take the culprit either to the
Information Tribunal or the courts. However, both
procedures potentially leave the complainant burdened with
heavy legal costs even if they represent themselves because
they may have to pay the costs of the other side.
16. Will the Information Commissioner be able to cope?
The resources of his office - around 200 staff in total -
have to deal not only with the FOIA but also the Data
Protection Act (DPA). The commissioner is responsible not
only for dealing with complaints of non compliance under both
Acts, but also for the supply of information to the public
and the general oversight and administration of the Acts
(the administration is considerable in the case of the DPA
because all data holders have to register with the
Commissioner).
Because of the work remit and the limited staff, simple
practicality suggests that the Commissioner's office may be
overwhelmed by FOI appeals and queries. This did not happen
with the DPA but the FOI is a different beast from that Act.
The DPA only refers to information held about the individual
making the request. Hence, its attractions for journalists,
broadcasters, writers, campaign groups and political parties
is very limited. The FOI allows general information to be
sought and given and will be of great interest to the likes
of journalists and interest groups. Such people and groups
will also tend to go for the information most likely to be
sensitive and thus the most susceptible to refusal by the
body to whom the FOI request is made.
17. What happens if data has been illegally destroyed?
If you believe that data has been destroyed after you sought
it through an FOIA request, thus denying you access to it,
you can report it to the police because it is a criminal act
to destroy data.
Whether the police will act on such complaints is debatable,
so it is a case of simply trying them out with a case or two.
It is also true that proving evidence existed and has been
destroyed after a request was submitted will be next to
impossible in many, probably most, instances.
You can also refer the matter to the Information
Commissioner.
18. The FOIA and the DPA
When you make an FOI request the receiving body may decide
that your request is better dealt with as a subject access
request under the DPA. If this is the case they must treat
the FOIA request as a subject access request without
requiring a further request by the enquirer. If they do, a
Å“10 fee may be charged.
19. Environmental Information Regulations (EIRs)
The remit of these is much broader than the common
understanding of the word environment would allow. The remit
ranges from the obvious such as pollution, GM releases and
large scale developments such as Heathrow expansion, to the
less obvious such as foods and drugs and the downright
improbable such as the condition of the Elgin Marbles and the
effects of foxhunting.
Because the remit is so broad, it is a fair bet that anything
which even potentially impacts on the environment or is
potentially impacted upon by the environment comes within
the regulations. The best advice is to suck-it-and-see.
?
--
Robert Henderson
philip@anywhere.demon.co.uk
Blair Scandal web site at http://www.geocities.com/blairscandal/
Personal web site at http://www.anywhere.demon.co.uk
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| | From: | James Hammerton | | Subject: | Re: The Freedom of Information Act - a brief guide | | Date: | Sat, 08 Jan 2005 20:58:05 +0000 |
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| On Sat, 8 Jan 2005 12:05:41 +0000, Robert Henderson
wrote:
> The Freedom of Information Act (FOIA)
>
> A Brief Guide
>
> Robert Henderson
>
Robert,
Thanks posting for that useful document. Are you planning to make it
available via the web?
Cheers,
James
James Hammerton, http://www.tardis.ed.ac.uk/~james
Blog: http://jameshammerton.blogspot.com/
Contributor to http://www.magnacartaplus.org/
Member of http://www.no2id.net/
|
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| | From: | Robert Henderson | | Subject: | Re: The Freedom of Information Act - a brief guide | | Date: | Sun, 9 Jan 2005 06:37:49 +0000 |
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| In article , James Hammerton
writes
>On Sat, 8 Jan 2005 12:05:41 +0000, Robert Henderson
> wrote:
>
>> The Freedom of Information Act (FOIA)
>>
>> A Brief Guide
>>
>> Robert Henderson
>>
>
>Robert,
>
>Thanks posting for that useful document. Are you planning to make it
>available via the web?
>
Not at present. I have written it for the Society of Individual
Freedom. However, by all means circulate it privately if you wish. RH
>Cheers,
>
>James
>
>James Hammerton, http://www.tardis.ed.ac.uk/~james
>Blog: http://jameshammerton.blogspot.com/
>Contributor to http://www.magnacartaplus.org/
>Member of http://www.no2id.net/
--
Robert Henderson
philip@anywhere.demon.co.uk
Blair Scandal web site at http://www.geocities.com/blairscandal/
Personal web site at http://www.anywhere.demon.co.uk
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| | From: | Angus Nicolson | | Subject: | Re: The Freedom of Information Act - a brief guide | | Date: | Sun, 9 Jan 2005 12:05:04 +0000 (UTC) |
|
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| "Robert Henderson" rambled in message
news:xB$i6bC9EN4BFwpD@anywhere.demon.co.uk...
> In article , James Hammerton
> writes
>>On Sat, 8 Jan 2005 12:05:41 +0000, Robert Henderson
>> wrote:
>>
>>> The Freedom of Information Act (FOIA)
>>>
>>> A Brief Guide
>>>
>>> Robert Henderson
>>>
>>
>>Robert,
>>
>>Thanks posting for that useful document. Are you planning to make it
>>available via the web?
>>
>
> Not at present. I have written it for the Society of Individual
> Freedom. However, by all means circulate it privately if you wish. RH
The SIF were famously founded by Sir Ernest Benn (Tony's uncle), a notorious
right-wing libertarian, who wrote books such as "The State the Enemy", and
once wrote: "Socialism is not a system; it is a disease."
This might just hint at where these guys are coming from.
From one extreme to another in one generation - quite a feat - both
promising the unattainable and the unworkable in the guise of the necessary.
However, the FOI guide is very helpful, and as someone who has been involved
in framing policies for a public organisation, it neatly highlights many of
the problems public bodies will face.
Angus
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| | From: | Robert Henderson | | Subject: | Re: The Freedom of Information Act - a brief guide | | Date: | Sun, 9 Jan 2005 10:53:26 +0000 |
|
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| In article , Robert Henderson
writes
>
>Not at present. I have written it for the Society of Individual
>Freedom
Other things being equal, the SIF will publish it in the Individual
magazine around May. RH
--
Robert Henderson
philip@anywhere.demon.co.uk
Blair Scandal web site at http://www.geocities.com/blairscandal/
Personal web site at http://www.anywhere.demon.co.uk
|
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| | From: | Robert Henderson | | Subject: | Re: The Freedom of Information Act - a brief guide | | Date: | Sat, 8 Jan 2005 15:04:54 +0000 |
|
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| In article <1105192422.932503.121900@f14g2000cwb.googlegroups.com>, mac
writes
>Will I be able to find out how many times the firebrigade where called
>out last year to a council block of flats up the rad from me?
>
Probably, provided it the block is large enough not to identify any
individuals. RH
>Will I be able to find the precentage of people in ouncil housing not
>working and getting their rents and council tax paid by system?
>
Yes. It is not personal info. RH
--
Robert Henderson
philip@anywhere.demon.co.uk
Blair Scandal web site at http://www.geocities.com/blairscandal/
Personal web site at http://www.anywhere.demon.co.uk
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| | From: | Magnus | | Subject: | Re: The Freedom of Information Act - a brief guide | | Date: | Sun, 09 Jan 2005 22:35:31 GMT |
|
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| Robert Henderson wrote :
> In article <1105192422.932503.121900@f14g2000cwb.googlegroups.com>, mac
> writes
>>Will I be able to find out how many times the firebrigade where called
>>out last year to a council block of flats up the rad from me?
>>
> Probably, provided it the block is large enough not to identify any
> individuals. RH
>
>>Will I be able to find the precentage of people in ouncil housing not
>>working and getting their rents and council tax paid by system?
>>
>
> Yes. It is not personal info. RH
>
And as long as the cost of providing the information
is less than £450 for, I think, non-departmental
public bodies and agencies, and something like £600
for central government departments. Robert probably
has the figures to hand.
The rules differ slightly in Scotland's devolved public
bodies, but not in Scottish organisations which are part
of UK bodies (Scottish establishments of UK research councils,
for example).
Magnus
|
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| | From: | Robert Henderson | | Subject: | Re: The Freedom of Information Act - a brief guide | | Date: | Sun, 9 Jan 2005 16:06:52 +0000 |
|
|
| In article , Angus Nicolson
writes
>The SIF were famously founded by Sir Ernest Benn (Tony's uncle), a notorious
>right-wing libertarian, who wrote books such as "The State the Enemy", and
>once wrote: "Socialism is not a system; it is a disease."
>
>This might just hint at where these guys are coming from.
The Benn family were old fashioned liberals. Wedgie is the family
aberration, although his views strangely did not prevent him accepting
the very large inheritance which came his way. RH
--
Robert Henderson
philip@anywhere.demon.co.uk
Blair Scandal web site at http://www.geocities.com/blairscandal/
Personal web site at http://www.anywhere.demon.co.uk
|
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| | From: | Robert Henderson | | Subject: | Re: The Freedom of Information Act - a brief guide | | Date: | Mon, 10 Jan 2005 05:57:31 +0000 |
|
|
| In article , Magnus
writes
>
>>
>> Yes. It is not personal info. RH
>>
>
>And as long as the cost of providing the information
>is less than £450 for, I think, non-departmental
>public bodies and agencies, and something like £600
>for central government departments. Robert probably
>has the figures to hand.
Slightly more complicated see:
7. The cost of making an FOIA request
>
>The rules differ slightly in Scotland's devolved public
>bodies, but not in Scottish organisations which are part
>of UK bodies (Scottish establishments of UK research councils,
>for example).
>
Cross border bodies come within the main FOIA. RH
>Magnus
>
--
Robert Henderson
philip@anywhere.demon.co.uk
Blair Scandal web site at http://www.geocities.com/blairscandal/
Personal web site at http://www.anywhere.demon.co.uk
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