Freedom of Information Training Session Information Management - - PowerPoint PPT Presentation

Freedom of Information Training Session

Information Management & Legal Services

Aim of Training

• Cover the basics of the Freedom of

Information Act 2000

• Act as a refresher for us all
• Cover commonly used exemptions (lawful

reasons not to release information)

• Examples of where exemptions have been

used

The Basics of FOI

Right to information (S.1(1)) Any person making a request for information to a public authority is entitled (a) To be informed in writing by the public authority whether it holds information of the description specified in the request and, (b) If that is the case, to have that information communicated to him.

Role of the Information Commissioner’s Office (ICO)

➔ Uphold individuals rights (members of the public) ➔ Powers to enforce against organisations including:

• Monitor us for reasons such as non-compliance
• Specify action we must undertake to improve compliance

Which can all damage WCC reputation….

Let’s Start!

• Right to request information held by WCC;
• Request to be made in writing, giving name and address for response (can be an e-mail

address);

• *We have to be applicant and motive blind;
• Legislation does not require us to create information;
• Give effect to preference for communication/format (so far as reasonably practicable)
• Response within 20 working days
• In response (subject to exemptions):
• Confirm whether or not we hold the information; and
• If held, disclose it to the requestor.

*With exception of considering request as vexatious or if help is required i.e. disability

Applicant/Motive Blind?

• The requester does not (under the act) need to tell us the

reason for their request

• It does not (must not) matter who the requester is or

where they are from

• We must treat all requesters EQUALLY!

Helping the Requester

• Section 16 FOI Act - Duty to be helpful includes providing advice and assistance
• Directing/transferring requestor to relevant source if not held by WCC or if

already available elsewhere (e.g. website).

• Helping requester with framing their request (consider if applicant is able to do

this and if not refer to other person or agency (e.g. CAB) or submitting request

• n their behalf - Equalities Act 2010
• Consider consulting with third parties
• Inform requester of complaints procedure (internal review/ICO)

Stop the Clock

• When Clarification is required, please go back to the requester as soon as

possible

• When issuing a fees notice - be helpful, consider asking requester to refine or

reframe request

Refusals

When we can not provide information held for whatever reason, or cannot confirm if the information is held or the existence of the information then we must issue by a ‘refusal notice’. We issue refusal notices -

• When an exemption applies
• Where the request is vexatious
• Where the request is repeated
• Where the cost exceeds the ‘appropriate limit’

Refusals continued...

When we refuse a request we should explain -

• The exemption/s relied upon
• Why the exemption applies to this information
• How the public interest test has been applied (if applicable)
• The internal complaints procedure
• The right to complain to the Information Commissioner

Note - There will be legitimate occasions when we will refuse to ‘confirm or deny’ holding requested information. This is particularly likely when dealing with S31 Law enforcement for example.

FOI - Fees Limit

• Not obliged to comply with request where to do so would exceed “appropriate

limit” - £450 (18 hours);

• Can only consider costs reasonably expect to incur in:
• Determining whether we hold information - including time spent circulating

request within authority to see where/whether information is held;

• Locating information;
• Retrieving information &
• Extracting information
• Have to provide a reasonable (but not precise) estimate of cost

FOI - Fees Limit continued...

• Duty to be helpful - should attempt to provide what we can under the

limit/assist the requestor refine the request before refusing request;

• Can aggregate requests in certain circumstances for costing purposes;
• Template is available to record & justify cost Form

Vexatious Requests Section 14 (1)

Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious

• Disproportionate or unjustified level of disruption, irritation or distress
• Can only be applied to request itself not individual - context and history
• See ICO guidance of indicators (not exhaustive) - Dransfield “no magic formula”
• Impact vs serious purpose and value of the request
• Some requests patently vexatious e.g. threats or abusive language
• Round robins and campaigns
• Alternatives: conciliation - s12(1) (cost limit) - advice and assistance
• If considering applying s14(1) to a request, contact Legal Services

FOIA Commission Recommendations

The FOIA Commission published its report into the Act on 1 March 2016 incl. 21 recommendations for improvement of note are the following: abolish the PIT extension to the time limit - impose statutory time limit for internal reviews - amend section 36 to remove requirement for qualified person’s

• pinion - changes to appeal process

However at the same time the Cabinet Office minister Matt Hancock stated: "We will not make any legal changes to FOI".

Exemptions

Which Ones Have We used?

Overview

• Many exemptions are subject to a public interest test - we need to balance the public interest in

withholding against public interest in disclosure

• Reasons for withholding information must always be provided and explained - Section 17 Refusal

notice which must also contain details of complaints procedure Exemptions could apply to:

• Duty to confirm or deny; and/or
• Disclosure of information.

Requestor entitled to a single stage internal review if not satisfied with response - after this can complain to ICO, First Tier and Upper Tier Tribunals Importance of relying on correct exemption and remember you can use more than one!

Exemptions

• Covered by part 2 of the FOI Act
• Sections 21 - 44
• Absolute Exemptions and Qualified Exemptions (public

interest test required)

• Class based or prejudice based

Absolute Exemptions

S21 Information accessible by other means S23 Information supplied by, or relating to, bodies dealing with security matters S32 Court records S34 Parliamentary privilege S36 Prejudice to effective conduct of public affairs (Only House of Commons/Lords) S37 Communications with her Majesty, etc. and honours S40(1) Personal Information S41 Information provided in confidence S44 Prohibitions on disclosure

Qualified Exemptions

S22 (+A) Information intended for future publication & research data S24 National Security S26 Defence S27 International relations S28 Relations within the UK S29 The economy S30 Investigations and proceedings S31 Law enforcement S33 Audit Functions S35 Formulation of government policy S36 Prejudice to effective conduct of public affairs S37 Royal Family and honours S38 Health and safety S39 Environmental information S40 Personal Information S42 Legal professional privilege S43 Commercial interests

Class versus Prejudice?

• Class-based exemptions protect information because it is of a particular type

(for example information held for the purposes of an investigation).

• Prejudice-based exemptions protect information where its disclosure would or

would be likely to harm a particular interest (for example the prevention or detection of crime).

How Do We Apply this

S21 Information accessible by other means

This is an absolute exemption where we do not have to apply the public interest test. Reasonably accessible to the requester (publication scheme/ available through

• ther legislation)

Even if fee applies - it doesn’t necessarily mean that it is not reasonably accessible even when the charges are from a third party ie The Land Registry We may be in breach of the duty under the Act to provide ‘advice and assistance’ by not explaining how information is otherwise available eg on our website. Test is it “reasonably accessible” Example

S22 Information intended for future publication

“With a view to publication by authority or some other person…” Qualified exemption, public interest test required Exact date does not need to be known, Reasonable in all circumstances Section 22A - unpublished research (intellectual Property Act 2014) Example

S30 - Investigations and proceedings

S30(1) applies to information which ‘has at any time been held’ for the purposes of any investigations or proceedings which a public authority has a power or duty to conduct - regardless of the purposes for which it might have been obtained or for any other purposes for which it might have been held at any time. S30(2) on the other hand applies to information which ‘was obtained or recorded’ for the purposes of an investigation or proceedings conducted by us - ‘relates’ to the

• btaining of information from confidential sources and focuses on how we obtained

the information and the content of the information.

S31 - Law enforcement purposes

This exemption is effectively split into 2 parts - S31(1)(a)-(f) applies to information which would be exempt where disclosure would prejudice general law enforcement activities such as the prevention/detection of crime; and S31(1)(g)-(i) applies to a range of functions that public authorities carry out for various purposes such as ascertaining whether a person has failed to comply with the law. Example

S36 - Effective conduct of public affairs

Qualified exemption (for Local Authorities) - public interest test required. Disclosure would or would be likely to - Inhibit the free and frank provision of advice, Inhibit the free and frank exchange of views for the purposes of deliberation Disclosure would otherwise prejudice (or be likely) the effective conduct of public affairs Decision to use this exemption is the Monitoring Officer’s. This is an absolute exemption for House of Commons/Lords but for Local Authorities we need to apply the public interest test. This exemption is rarely used. You need to consult Legal Services about using this exemption.

S38 Health and Safety

Qualified exemption - public interest test required. Where disclosure would endanger the physical or mental health or safety of any individual Think about the harm that could be caused when releasing information - for example children homes, animal testing. The impact of the disclosure on others Example

S40 Personal Information

S40 (1) - requesters own information If information is the personal data of the person making the request it will be exempt under S40(1). (This is because it can be dealt with under the Data Protection Act 1998, as a subject access request). S40(2) Somebody else's information If information is requested about a third party, this will also be exempt under S40(2) if disclosure contravenes any of the Data Protection principles (Principle one Fair and Lawful) Example

S41 Information provided in confidence

This is an absolute exemption no public interest test required

• nly applies to information obtained by the authority from another

person(including another public authority), and

• The disclosure of the information to the public (by us) would constitute a breach
• f confidence actionable by that or any other person

Actionable = we are likely to be sued!

S42 Legal Professional Privilege

Qualified exemption - public interest test required. Litigation privilege All documents and correspondence between Legal Services and Public Authority - this is very wide and captures all information Advice Privilege Solicitors, Barristers, Qualified Legal Executives

S43 Commercial Interests

Qualified exemption - public interest test required. Is the information a trade secret? (Coca Cola ingredients?) ...or likely to prejudice the commercial interests of any person (including our authority) Example

Public Interest Test

Public Interest Tests

Required for qualified exemptions! ★ Information must 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 ★ Each exemption used will require its own separate public interest test

What is the public interest Test?

Not defined under the FOI act, ICO advises; Something in the “public interest” is simply something which serves the interests of the public. When applying the test, the public authority is simply deciding whether in any particular case it serves the interests of the public better to withhold or to disclose the information.

Public interest factors (For)

➔ Promoting accountability and transparency by public authorities for their decisions ➔ Promoting accountability and transparency in the spending of public money ➔ Allowing individuals and companies to understand decisions affecting their lives and to challenge them ➔ Informing the public of any danger to public health or safety ➔ Contributing to public understanding and participation in a debate of importance

Public interest factors (against)

➔ Consider all relevant exemptions ➔ Prejudice or detrimental effect of disclosure ➔ Specific circumstances of the case ➔ Human Rights - e.g. right to a fair trial/privacy ➔ Effect of disclosure on wider world/public e.g. public data

Balancing the Scales

When reviewing the fors and againsts in the public interest test, if all things being equal then disclose. “The exercise of considering the competing public interests depends not upon the length of the list of the different sorts of public interests on one side or the other but upon how important each of the factors is” Hogan v Oxford County Council (17/10/2006)

Extensions over 20 working days

When can we legitimately extend the 20 working days under the Act?

• When having applied a Qualified exemption and further time is needed to

consider the Public Interest Test (PIT). When we can not reach a decision within the 20 working days relating to the PIT, we need to respond within a reasonable period and issue a notice stating which exemption applies. (ICO advises no longer than further 20 days).

When is a request Business as Usual?

What has been requested? (level/nature of detail) Manner it has been asked? (Has FOI been mentioned?) Err to the side of caution - record as FOI/EIR Can log on iCasework and refuse - BAU - pass case to correct person

Other resources

When considering the use of exemptions, we can look at how other authorities have used them and in particular how they they been perceived by the ICO For example, the ICO records all decision notices on their web site https://search.ico.org.uk/ico/search/decisionnotice This web site also can let you search on exemption/exception applied to speed up your search WCC Information Management Team and Legal Services http://www.warwickshire.gov.uk/im

Learning Landscape - There is more!

Re use of Public Sector Information Regulations 2015 ROPSI Local Government Transparency Code 2015 LGTC General Data Protection Regulations coming 2018! GDPR Environmental Information Regulations 2004 - coming next time! EIR Datasets ICO guidance from Section 102 of the Protection of Freedoms Act 2012 POFA