Transparency in Public Administration – FOI and EIR

1. Transparency in Public Administration – FOI and EIR Shauna Dunlop NI Group Manager Information Commissioner’s Office

2. Outline • Information Rights • Time of Transition • Transparency • Corporate Governance • Duties & Responsibilities

3. Freedom of Information Act 2000 • The Freedom of Information Act 2000 (FOI) provides public access to information held by public authorities (PA) across the UK • It does this in two ways: • public authorities are obliged to publish certain information about their activities • and members of the public are entitled to request information from public authorities

4. Why – FOI? • People have a right to know about the activities of public authorities, unless there is a good reason for them not to • Access to official information can also improve public confidence and trust if government and public sector bodies are seen as being open

5. FOI in Practice • Everybody has a right to access official information • Recorded information includes printed documents, • computer files, letters, emails, photographs, and sound • or video recordings. • Purpose and applicant blind • Available to anyone, anywhere (inc. outside UK) • Consider any information you release under the Act as if it • were being released to the world at large

6. FOI in Practice - Requests • The public authority that receives the request is responsible for responding – the existing Council/Department • A requestor does not need to mention the FOIA • Consider the two separate duties when responding to these requests: • to tell the applicant whether you hold any information • falling within the scope of their request; and • to provide that information • Complex/S40 enquiries – review 20 working days

7. FOI in Practice – Requests (2) • To be valid it must be in writing (inc. Twitter and Facebook) • Include the requester’s real name • Include an address for correspondence • Describe the information requested • Clarify the request • Cost considerations (£600/£450)

8. FOI in Practice – Responding to a Request • FOI favours disclosure unless there is a good reason not to disclose. This is sometimes described as a presumption or assumption in favour of disclosure • Some reasons not to disclose may include: • Vexatious request • Personal Data • Cost • Repeated requests • Exemptions

9. FOI in Practice - Exemptions • Most exemptions are not absolute but require you to apply a • public interest test • You do not have to apply an exemption. However you • must consider other implications • Exemptions: • S21 – Information already reasonably accessible • S22 – Information intended for future publication • S35 – Government Policy • S40 – Personal information • S43 – Commercial interests

10. FOI – Regulatory Action • The ICO has a range of powers to take action in relation to • FOI. • On receipt of a complaint the ICO may issue a Decision Notice • Failure to comply with a Decision Notice may be contempt • of court, punishable by a fine • Section 77 states that it is a criminal offence to alter, block, • destroy or conceal information. Depending on the nature of • the incident, an authority or its individual members of staff • could be charged with this offence. The penalty is a fine • Monitor performance

11. Environmental Information Regulations 2004 • The Environmental Information Regulations (EIR) 2004 provide • public access to environmental information held by public • Authorities (PA) • The Regulations do this in two ways: • public authorities must make environmental information available proactively • members of the public are entitled to request environmental • information from public authorities • Review with regard to new powers for Super Councils

12. Background to EIR • The Regulations are derived from European law. Each member • State has it’s own version • They implement the European Council Directive 2003/4/CE on • public access to environmental information (the EC Directive) • in the UK • The principle behind the law is that giving the public access to • environmental information will encourage greater awareness of • issues that affect the environment

13. What is environmental information • Definition in EIR • 3 key terms: • Elements of the environment • Factors affecting or likely to affect the elements • Measures or activities affecting or likely to affect elements or factors • Information does not have to be “on” the environment • Financial information could be classed as environmental • information if, for example, it related to the costs of developing wind farms or building a new tourist attraction

14. EIR in Practice • Everybody has a right to access environmental information • Disclosure of information should be the default • An applicant (requester) does not need to give a reason for • wanting the information • You must treat all requests for information equally • You should treat any information you release under the • Regulations as if it were being released to the world at large

15. EIR in Practice (2) • The Regulations say that any information that is in your • possession that you have produced or received is considered • to be ‘held’ • What is included - any recorded information you hold that falls within the definition of ‘environmental information’ • It is not limited to official documents or information you create – it can cover, for example, drafts, emails, notes, recordings of telephone conversations and CCTV recordings

16. EIR in Practice – Responding to a Request • A requestor does not need to mention the regulations • A request can be made in writing or verbally (not defined) • You should always respond in writing, regardless of whether • the request was made verbally or in writing • Make that information available, unless an exception applies • You normally have 20 working days to respond to a request

17. EIR in Practice – Responding to a Request (2) • Regulations state a public authority shall apply a presumption • in favour of disclosure. • Some exceptions may apply: • If the request is too general • Manifestly unreasonable • Costs - A charge may be applied of a ‘reasonable amount’

18. EIR in Practice – Exceptions/Disclosures • 12(4)(c) The request is too general • 12(4)(d) The request is for unfinished documents • 12(4)(e) The request involves disclosure of internal communications • 12(5) Exception based on harmful consequences of disclosure • 12(5)(e) Commercial confidentiality • 12(5)(g) Protection of the Environment

19. EIR in Practice – Regulatory Action • Deletion could be a criminal offence under regulation 19 if the • deletion is intended to prevent disclosure (equivalent S77 FOI) • The ICO will issue a decision notice after investigating a • concern. If we find that you have breached the Regulations, • the decision notice will say what you need to do to put things • right

20. FOI and EIR – Some Key Considerations • Jurisdictions • Valid Request • Public Authority rules • Environmental Information defined • Exemptions/Exceptions • Timescales • Costs

21. Other Issues • Codes of Practice • Records Management • Normal Course of Business • Other Relevant Legislation • Good Practice • Reputation

22. Q & A Session

23. Keep in touch • Subscribe to our e-newsletter atwww.ico.gov.uk • or find us on… • www.twitter.com/iconews

24. Information Commissioner’s Office3rd Floor14 Cromac PlaceBELFAST BT7 2JB 028 9027 8757 shauna.dunlop@ico.org.ukwww.ico.org.uk