Chief Legal Officer:
Mirza F.N. Ahmad MBA LLM Barrister
11-14 Cannon Street,
Birmingham B2 5EN
BRIEFING NOTE : FREEDOM OF INFORMATION ACT 2000
The Freedom of Information Act 2000 introduces a new right to obtain information from almost all public authorities, including local authorities. The Act will be fully operative from 1st January 2005. Before then, Local Authorities have to submit, by the end December 2002, and operate, from February 2003, Publication Schemes approved by the Information Commissioner.
The Act is intended to introduce a new culture of openness and transparency throughout the public sector. The key elements are:-
1. A general right of access to all information held by public authorities. This right will be retrospective; in that, the information may have been formed before the Act becomes fully operative in 2005.
2. A statutory duty to adopt Publication Schemes specifying the classes of information the authority intends to publish, the manner of publication and whether the information will be available to the public free of charge.
Right of Access
Section 1 of the Act creates a general right of access to information held by public authorities.
There are two distinct elements to the right. The applicant is entitled, on request, firstly to be informed in writing whether the authority holds any information of the description specified in the request (called "the duty to confirm or deny") and, secondly, if it does hold any such information, to have it communicated to him.
Anybody may make a request. The right is not limited to natural persons. Experience from other countries suggests that up to half the applications are made by commercial organisations.
The age of the information is also irrelevant. Information, which came into being before the Act came into force, will still be subject to it - retrospective effect!
The authority must comply with the request promptly and in any event within 20 working days, unless exempted by regulations. (Section 10)
The authority may charge a fee up to a maximum to be prescribed in regulations. (Section 9). The maximum is likely to be about £600 per request.
The applicant is entitled to specify the form in which he wants the information to be provided and the authority must comply that request in so far as it is reasonably practicable to do so. (Section 11)
The authority is not obliged to comply with a request if either the cost of compliance exceeds a limit set by the Secretary of State (likely to be in the region of £600) (Section 12) or with requests which it considers to be vexatious or repeated (Section 14).
Both elements of the right of access are subject to a considerable number of exemptions. Those which are most relevant to local government are listed below. An understanding of the exemptions will be the key to complying with an access request, if the right to information is to be declined. It is, therefore, unfortunate that this part of the Act is exceptionally complex and technical. For example, some exemptions refer to other Acts of Parliament, which then have to be considered.
Even if the exemption under such cross-referenced Act is applicable, there may still be the requirement to apply the Freedom of Information Act's 'public interest test'. This test is used to determine whether the exempt information should, nevertheless, be disclosed on the ground that the public interest in disclosure out-weighed the public interest in keeping it concealed!
The effect of the various exemptions is set out in Section 2. Some confer an "absolute exemption". In such cases, the authority is neither obliged to confirm or deny the information is held or to communicate it.
More often, the exemption only applies to the extent that complying with a request would prejudice the purpose for which the exemption exists. For example, Section 30 refers to commercial information, however it does not apply to all commercial information, only to information, which, if disclosed, would prejudice someone's commercial interests.
In those cases where the partial exemption applies, the authority is required, firstly, to balance the public interest in complying with the duty to confirm or deny against the public interest in not doing so.
Secondly, if the authority does confirm information is held it must balance the public interest in disclosing it against the public interest in not doing so.
Those classes of information relevant to local government and which are subject to the absolute exemption include:-
Those classes of exempt information which are not absolutely exempt and which therefore need to be subjected to the public interest test set out above include:-
Section 17 requires that the reasons for not complying with an access request must be given in writing stating the exemption relied on and, if relevant, why the public interest requires the information to be withheld.
As indicated above, the Act envisages a change of culture under which authorities will make information available as a matter of course. In this regard, each authority will be under a statutory duty to adopt, maintain and keep under review a Publication Scheme, in a form that is approved by the Information Commissioner. Birmingham's Scheme will be submitted for approval in December 2002 and it will also be available on the Internet.
Section 19 sets out the requirements for this. Each scheme should specify the classes of information, which the authority will publish, the manner of publication and whether the information is available to the public free of charge.
When considering its scheme the authority is required to have particular regard to the public interest in providing the information and in the publication of the reasons for all the various decisions it makes.
Guidance and Codes of Practice
The Home Secretary and the Lord Chancellor can issue Codes of Practice.
The Home Secretary's Code of Practice will give guidance on good practice in complying with the requests for information, whereas the Lord Chancellor's Code will relate to the keeping, management and destruction of records.
Both Codes are available in draft on the Internet. The Home Secretary's Code can be found at www.homeoffice.gov.uk/foi and the Lord Chancellor's at www.pro.gov.uk under Records Management.
An applicant who is dissatisfied with an authority's response to a request for information will be able to apply to the Information Commissioner for a decision as to whether the authority has complied with the Act. The applicant will have to exhaust the authority's complaints procedure before contacting the Commissioner.
The Home Secretary's draft Code of Practice makes it clear that the complaint procedure should be prompt, fair, impartial and easy to understand. The complaint should be investigated by somebody other than the original decision maker. Target times for determining complaints and the results should be published and recorded.
If the applicant is dissatisfied with the decision of the Information Commissioner, he or she may appeal to the Information Tribunal. Any further appeal will be to the High Court on points of law only.
Revised 10th November 2002