Freedom of Information Training Session Information Management & Legal Services
Aim of Training Cover the basics of the Freedom of Cover commonly used exemptions (lawful ● ● Information Act 2000 reasons not to release information) Act as a refresher for us all 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 on 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: ● - D etermining whether we hold information - including time spent circulating request within authority to see where/whether information is held; - L ocating information; - R etrieving information & - E xtracting 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 opinion - 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 other 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 obtaining of information from confidential sources and focuses on how we obtained the information and the content of the information.
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