Dealing with individual requests for information

Dealing with individual requests for information Andrew Charlesworth Centre for IT & Law University of Bristol

Introduction • Guidance on dealing with individual access is provided for in s.45 FOIA. • The Lord Chancellor’s Department are to draw up a Code of Practice • Code Of Practice On the Discharge of the Functions of Public Authorities under Part I of the Freedom of Information Act 2000 • Draft (July 2002) • http://www.lcd.gov.uk/foi/dftcp00.htm

Aims of the Code • Good administrative practice when handling requests for information • Protection of interests of applicants by setting out standards for provision of advice and encouraging effective means of complaining about decisions taken under FOIA; • Ensuring interests of 3rd parties affected by any decision to disclose information are considered by setting standards for consultation; • Ensuring FOI implications are considered before acceptance of confidentiality provisions in contracts and accepting information in confidence from 3rd parties;

Force of Code • Statutory duty on Lord Chancellor to issue Code • No statutory force for provisions of Code • Authorities are expected to abide by Code unless good reasons - justified to OIC. • s.47 FOIA places a duty on OIC to promote following of good practice by public authorities & s.48 FOIA enables OIC to issue "practice recommendation" to a public authority if its practice not in conformity with Code. • s.16 FOIA places a duty on public authorities to provide advice and assistance to applicants and potential applicants.

Provision of Advice and Assistance • Public authority should: • provide advice and assistance "so far as it would be reasonable to expect the authority to do so“ • publish its procedures for dealing with requests for information • provide contact details of person to whom applicants may direct requests for information or for assistance • refer to procedure and contact details in its publication scheme • draw FOIA to the attention of potential applicants who appear unaware of it.

Provision of Advice and Assistance • Where a person is unable to make a request in writing, authority should ensure that appropriate assistance is given • e.g. advising the person that another person or agency (such as a CAB) may be able to assist them with application, or apply on their behalf. • Where a person does not describe the information clearly or unambiguously authority should provide assistance • to clarify the nature of the information sought, not to determine the aims or motivation of the applicant.

Provision of Advice and Assistance • Applicants cannot be expected to use identifiers i.e. a file reference number, unless these are made available for the use of applicants. • If applicants can’t or won’t pay the fee notified to them the authority should consider if there is information of interest to them available for free. • Where the cost of complying with a request would exceed the "appropriate limit" and the authority will not comply on a discretionary basis it should consider indicating what information could be provided within the cost ceiling.

Organised Campaigns • If an authority gets a number of related requests the cumulative cost of complying with the requests may exceed the "appropriate limit" prescribed in Fees Regulations, the authority should consider whether the information could be disclosed in a more cost-effective manner • e.g if the information is such that publication on the authority's website, and a brief notification of the website reference to each applicant, would bring the cost within the appropriate limit.

Timeliness in Dealing with Requests • PAs are required to comply with all requests for information promptly • PAs should not delay until the end of the 20 working day period if they could reasonably respond sooner. • PAs should aim to make all decisions within 20 working days • there will be times when a PA needs to consider where the public interest lies in respect of an application for exempt information • no statutory time limit on the length of time the authority may take to reach such a decision, but an estimate must be given • If the PA exceeds its estimate, it should apologise to the applicant and explain the reason(s) for the delay • PAs should keep a record of instances where estimates are exceeded

Charging Fees • FOIA does not require charges to be made, but PAs have discretion to charge a fee in accordance with Fees Regulations for requests made under the general right of access. • The Fees Regulations do not apply: • to material made available under a publication scheme under s.19; • to information reasonably accessible to the applicant by other means within the meaning of the s.21 exemption; or • where provision is made by or under any enactment as to the fee that may be charged by the PA for disclosure of the information as per s.9(5) of the Act. • PAs should ensure that any charges they make in cases falling outside the Fees Regulations are in accordance with any relevant legislation and any relevant guidance issued or approved by HM Treasury

Transferring Requests • A request can only be transferred where a PA receives a request for information which it does not hold (s.3(2) FOIA) but which is held by another PA • The PA receiving the initial request: • Must process it in respect of such information relating to the request as it holds • Should advise the applicant that it does not hold part of the requested information, or all of it, whichever applies. • If the original PA believes that some or all of the information requested is held by another PA, it should consider: • contacting the applicant and informing them that the information may be held by another PA; • suggesting that the applicant re-applies to the PA which the original PA believes to hold the information; • providing him or her with contact details for that PA

Transferring Requests • In some cases the original PA may consider it to be more appropriate to transfer the request to another PA in respect of the information which it does not hold. • The original PA should: • consult the other PA to ascertain whether it does hold the information and, • if so, consider whether it should transfer the request to it. • Before transferring a request for information to another PA, the original PA should consider: • whether a transfer is appropriate; and if so • whether the applicant is likely to object to the transfer; • If the PA concludes that the applicant is not likely to object, it may transfer the request without going back to the applicant, but should tell them it has done so – otherwise consent is required.

Consultation with Third Parties • The disclosure of information via a request may affect the legal rights of a 3rd party, • e.g. where information is subject to the common law duty of confidence or • where it constitutes "personal data" within the meaning of the DPA 1998. • Where a disclosure cannot be made without the consent of a 3rd party the PA should consult them to seek their consent to the disclosure, unless such a consultation is not practicable. • Consultation should take place where: • the views of the 3rd party may assist the authority to determine whether an exemption under the Act applies to the information requested; or • the views of the 3rd party may assist the authority to determine where the public interest lies under s.2 FOIA

FOIA and Secrecy • PAs cannot "contract out" of their obligations under FOIA • Unless an exemption is applicable in relation to any particular information, a PA will be obliged to disclose it in response to a request, regardless of the terms of any contract. • When contracting with non-PA contractors, PAs should reject confidentiality clauses concerning information about the contracts terms, its value and performance. • PAs should not agree to hold information 'in confidence' which is not in fact confidential in nature. • Any acceptance of confidentiality provisions must be for good reasons and capable of being justified to the OIC. • The same applies to 3rd party info ‘in confidence

Refusal of Request • Where a request is refused in reliance on an exemption, FOIA requires that the PA notifies the applicant which exemption has been claimed and why that exemption applies. • PAs should not merely paraphrase the wording of the exemption. • FOIA also requires PAs, when withholding information (not "absolute" exemptions), to state the reasons for claiming that the public interest in maintaining the exemption outweighs the public interest in disclosure. • Public authorities should specify the public interest factors which they have taken into account before reaching the decision • PAs should keep a record of all applications where either all or part of the requested information is withheld.

Complaints Procedure • A PA should have a complaints procedure in place by the date that its publication scheme provisions come into effect. • The complaints procedure may be used by any person who perceives that the PA is not complying with its publication scheme. • A PA should inform applicants of the details of its internal complaints procedure, and how to contact the OIC. • The complaints procedure will also be used to deal with complaints from people who consider that an FOI request has been improperly handled, or who are dissatisfied with the outcome of their request • In the absence of any formal internal complaints procedure applicants are entitled under the Act to complain directly to the OIC

Complaints Procedure • Any written indication of dissatisfaction from an applicant about a PA’s response to a valid FOI request should be treated as a complaint. • The complaints procedure should be fair and impartial • It should be possible to reverse or otherwise amend decisions previously taken. • Complaints procedures should be clear and comprehensible • They should produce a prompt determination of the complaint. • In all cases, complaints should be acknowledged and the complainant should be informed of the authority's target date for determining the complaint • Authorities may set their own target times for dealing with complaints but these should be reasonable, defendable, and subject to regular review. • Records should be kept of all complaints and of their outcome.

Dealing with individual requests for information