Why is freedom of information important?
Public authorities can be held to account for their decision-making
The Freedom of Information Act 2000 (FOIA) aims to make government more transparent by giving the public a mechanism through which to find out more about government policies and the decision-making process.
What is freedom of information?
A general right of access to information held by public authorities
FOIA came into force on 1 January 2005 and gives individuals and companies the right to ask public authorities whether they hold certain information and, if they do, the right to be given that information. FOIA does not deal with the collection and use of personal data (www.practicallaw.com/8-200-3413), which is governed by the Data Protection Act 1998 (see Practice note, Overview of UK data protection regime (www.practicallaw.com/7-107-4765)).
The Environmental Information Regulations 2004 (SI 2004/3391) (EIR) came into force at the same time as FOIA to regulate public access to all environmental information held by public authorities (see Practice note, Environmental Information Regulations (www.practicallaw.com/4-205-5357)).
Who must disclose information?
All UK public authorities
FOIA applies to all public authorities in England, Wales and Northern Ireland. The Freedom of Information (Scotland) Act 2002 introduced similar provisions for Scotland.
The list of public authorities that are subject to FOIA includes government departments, local authorities, educational institutions, publicly-owned companies and other public bodies (see Practice note, Freedom of information: Public authorities (www.practicallaw.com/0-200-9452)).
The Government is considering extending the duties of disclosure under FOIA to other organisations that carry out functions of a public nature and private sector companies that enter into contracts to perform those functions on behalf of public authorities (see Legal update, Ministry of Justice launches consultation on extending FOI coverage to more organisations (www.practicallaw.com/8-378-7738)). The Secretary of State already has the power to make an order to designate such organisations as public authorities for the purposes of FOIA, although he would first have to consult every person to whom the order relates (see Practice note, Freedom of information: Bodies designated by order of the Secretary of State (www.practicallaw.com/0-200-9452)).
What information is accessible under FOIA?
All information held by public authorities
The public may ask to see any information held by public authorities and it must be disclosed unless an exemption applies (see below). Therefore, a wide variety of information is therefore accessible under FOIA, including contracts for the supply or purchase of goods or services, responses to regulatory enquiries and health and safety information (see Practice note, Freedom of information: Accessible information (www.practicallaw.com/0-200-9452)). As FOIA is retrospective, an applicant can ask to see any information that is held by the public authority at the time of the request, even if it was obtained before FOIA came into force. For details of how information can be "held", see Practice note, Freedom of information: When is information "held"? (www.practicallaw.com/0-200-9452).
If a company holds information on behalf of a public authority, that information is regarded as held by the authority and is subject to FOIA.
A public authority may not disclose information if other legislation prohibits its release. For example, because of a prohibition under the Financial Services and Markets Act 2000, the Financial Services Authority (www.practicallaw.com/5-107-5761) may not disclose certain information, which it has obtained through carrying out its regulatory functions.
What information is exempt from disclosure?
FOIA sets out specific exemptions to the public right of access
The exemptions (which are summarised in Practice note, Freedom of information: List of exemptions (www.practicallaw.com/0-200-9452)) fall into two categories:
- Absolute exemptions where the only question is whether the exemption applies.
- Qualified exemptions where there is a duty to disclose the information, unless the public interest test applies. Under this test, the public authority must consider whether, in all the circumstances, the public interest in maintaining the exemption outweighs the public interest in disclosing the information (see Practice note, Freedom of information: Public interest test (www.practicallaw.com/0-200-9452)).
In certain circumstances, an exemption will require the public authority to neither confirm or deny that it has the requested information. For example, if someone requests information about the number of complaints made about an individual, a response stating that information relating to the request is held but will not be disclosed will itself disclose personal information (that complaints have been made against the individual). Therefore, in these circumstances, the relevant exemption allows the public authority to "neither confirm or deny" that it holds the information.
The exemptions that need to be considered most often under FOIA are for:
- Information accessible by other means (section 21), although the requirement to provide advice and assistance (see below) will mean that the public authority will need to direct the applicant to the appropriate source of information. This exemption is absolute. (Section 21.)
- Information that relates to the formulation of government policy (section 35), this exemption is only available to central government bodies. This exemption is qualified. (Section 35.)
- Information that, if disclosed, would inhibit the free and frank provision of advice or exchange of views within public authorities (section 36), this exemption can only be applied by the "qualified person" at the public body. In respect of central government departments this will be a minister of the Crown and for local authorities it will be the Monitoring Officer (www.practicallaw.com/5-385-1429). This exemption is qualified (unless the information is held by the House of Lords or the House of Commons, in which case it is absolute). (Section 36.)
- Personal information that is subject to data protection law (section 40), although the public authority may redact (www.practicallaw.com/4-201-8299) a document, so that it can be disclosed without the personal information (see Practice note, Freedom of information: Personal data (www.practicallaw.com/0-200-9452)). (Section 40.)
- Information supplied and held under a legal duty of confidence (section 41), where disclosure would constitute an actionable breach of confidence (see Practice note, Freedom of information: Confidential information (www.practicallaw.com/0-200-9452)). This exemption is absolute. (Section 41.)
- Trade secrets and other commercially sensitive information (section 43), where disclosure is likely to prejudice the commercial interests of any person (including the public authority itself) (see Practice note, Freedom of information: Commercial interests (www.practicallaw.com/0-200-9452)). This exemption is qualified. In general, very strong arguments against disclosure are needed to justify this exemption when considering the public interest. (Section 43.)
How must a public authority comply with FOIA?
Information must be disclosed within specified time limits
A public authority must comply with a request within 20 working days of receiving it or, if the public interest test applies, within such time as is reasonable in the circumstances (see Practice note, Freedom of information: Time for disclosing information (www.practicallaw.com/0-200-9452) and for ICO guidance on time limits, see Legal update, New guidance on the time limit for responding under FOIA and the EIR published by ICO (www.practicallaw.com/4-544-9926)).
A public authority does not have to comply with a request, if the cost of doing so would exceed the "appropriate limit" specified by regulations (see Practice note, Freedom of information: Accessible information (www.practicallaw.com/0-200-9452)).
Public authorities may refuse requests that are vexatious, for example, because they are frivolous or aimed at causing disruption or distress. Similarly, public authorities do not have to respond repeatedly to the same or similar requests from an applicant (see ICO updates guidance on vexatious, manifestly unreasonable and repeat requests (FOIA and EIR) (www.practicallaw.com/5-529-7673), and ICO publishes FOI requesters' charter (www.practicallaw.com/3-375-0054).)
Public authorities should follow the access code
FOIA imposes a duty on public authorities to offer advice and assistance to anyone who makes a request for information (see Legal update, ICO publishes good practice guidance on providing advice and assistance under FOIA (www.practicallaw.com/4-384-4689)).
To fulfil this duty, public authorities should follow the code of practice (the access code) that the Secretary of State has published under the terms of FOIA (see Secretary of State for Constitutional Affairs' Code of Practice on the discharge of public authorities' functions under Part I of the Freedom of Information Act 2000 and Legal update, Government publishes code of practice on freedom of information (www.practicallaw.com/9-103-2500)). The Information Commissioner (www.practicallaw.com/3-107-6262) has supplemented the access code with additional guides for public authorities. These provide detailed guidance on other aspects of the duty to disclose, such as the procedure for processing and refusing requests for information (see Practice note, Freedom of information: Access code (www.practicallaw.com/0-200-9452)).
Public authorities must adopt publication schemes
Under FOIA, every public authority has a duty to adopt a publication scheme and to publish information in accordance with the scheme. If the information requested is listed in the authority's publication scheme, an applicant does not need to rely on FOIA for its disclosure. Since 1 January 2009, schemes must comply with the model publication scheme introduced by the Information Commissioner's Office (see Practice note, Freedom of information: Publication schemes (www.practicallaw.com/0-200-9452)).
How is FOIA enforced and who can appeal?
The Information Commissioner enforces FOIA and promotes good practice
If a public authority refuses to disclose the information requested, the applicant can appeal to the Information Commissioner. If he decides that the authority has failed to comply with FOIA, he can issue an enforcement notice requiring compliance if he considers it is in the public interest. The applicant or the public authority may appeal to the Information Tribunal against the notice and appeals from the Tribunal to the High Court on points of law are also allowed. If a public authority fails to comply with an enforcement notice, the Information Commissioner may certify this failure to the court, who may deal with the authority as if it had committed a contempt of court. (See Practice note, Freedom of information: Policing the Act (www.practicallaw.com/0-200-9452).)
Third parties have no right to appeal or be given notice of disclosure
Third parties who provide information to public authorities have no rights in the enforcement and appeal process under FOIA. They also have no right to receive notice before their information is disclosed. Contracts between public authorities and third parties will often provide for notice to be given and, where practical, the third parties' views to be taken into account.
The following resources are available:
This is just a selection of the many updates we have published on this topic, details of which can be found in the legal update archive in the freedom of information topic index (www.practicallaw.com/resource.do?item=:15927157).