Information Governance
The Freedom of Information Act & Environmental Information Regulations
The Right to Information
Individuals already have the right to access information about themselves (personal data) which is held on computer and in some paper files, under the Data Protection Act 1998
The Freedom of Information Act extends this right of access (as far as public authorities are concerned) to allow access to all the types of information held, whether personal or non-personal. This may include information about third parties, although the public authority will have to take account of the Data rotection Act 1998 before releasing any personal information.
The FOI Act gives two related rights:
- the right to be told whether the information exists
- the right to receive that information
The right to access the information held by public authorities can be exercised by anyone, worldwide. The Act is also retrospective. This right to access information came into effect on 1st January 2005.
The Freedom of Information Act 2000
The Freedom of Information Act 2000 is "challenged with the task of reversing the working premise that everything is secret, unless otherwise stated, to a position where everything is public unless it falls into specified excepted cases" (Lord Chancellor’s first Annual Report on the implementation of the Freedom of Information Act 2000; November 2001).
The Freedom of Information Act was enacted on 30th November 2000 and fully implemented on the 1st January 2005. It gives a general right of access to all types of recorded information held by public authorities, sets out exemptions from that right and places a number of obligations on public authorities. The Act also amends the Data Protection Act 1998 and the Public Records Act 1958.
Subject to the exemptions, any person who makes a request to a public authority for that information must be informed whether the public authority holds that information. If it does, that information must be supplied, subject to certain conditions.
Every public authority is required to adopt and maintain a publication scheme setting out how it intends to publish the different classes of information it holds, and whether there is a charge for the information.
Two codes of practice:
issued under the Act provide guidance to public authorities about responding to requests for information, and records management.
The Act is enforced by the Information Commissioner and was brought into force in two parts, with full implementation on January 1st 2005.
The requirement to publish and maintain a Publication Scheme was phased in (see below) during 2003 and 2004. Individual rights of access to information came into force across all public authorities in January 2005.
ENFORCEMENT
An individual who feels that they have not had their request for information dealt with in accordance with Section 1 of the Freedom of Information Act may apply to the Commissioner for a decision. The Commissioner must than decide whether the complaint satisfies Section 50(2) of the Act, in that the complaint is legitimate and has exhausted all internal complaints procedures.
Once this has been established, the Commissioner must then either inform the individual that no decision will be made and the grounds for that decision, or serve a decision notice on the complainant and the public authority. Where the Commissioner does decide that an authority has failed to comply with Section 1 or any of the requirements of Section 11 or Section 17, the decision notice shall specify the steps that the authority must undertake to comply with the FOIA. In this case, a time limit applies and the authority will be informed of this along with the details of their right to appeal.
The Information Commissioner has received numerous complaints and has issued many Decision Notices as a result of these complaints. These can be found at here
Section 54 of the FOIA details what happened when a Public Authority fails to comply with any of the Notices which may be issued by the Commissioner. If an authority fails to comply, then the Commissioner may certify this to the High Court which can then investigate and may ultimately deem non-compliance as Contempt of Court.
FOI Scotland
Whilst the Freedom of Information Act 2000 is UK-wide, organisations which provide public services in Scotland under the control of the devolved powers of the Scottish Executive are covered by the Freedom of Information (Scotland) Act 2002 (FOISA). FOISA covers thousands of Scottish public authorities (including the Scottish Executive, its Ministers, regulatory authorities, Non-Departmental Public Bodies, local authorities, the NHS, as well as independent practitioners such as general practitioners, schools and universities).
Whilst FOISA is largely similar to the UK Act, there are some differences although it is felt that the net effect of these differences will be minimal. Nevertheless, the difference between the UK and Scotland Fees structure is likely to have a noticeable affect.
The Two Main Provisions of the Act
The two main provisions of FOISA, in respect of the functions of public authorities, are:
- to adopt and maintain a scheme which relates to the publication of information by the authority and to publish information in accordance with that scheme;
- to communicate requested information to the applicant.
Publication Schemes are now in place for all public authorities. Individual Rights of Access became active throughout the UK on January 1st 2005.
Some key points to note are that:
- authorities are required to respond to requests within 20 working days
- the rights of access will apply to all existing information as well as newly created material
- requests can be made by anyone from anywhere in the world
- requests do not need to refer to the FOISA in order for the legislative requirements to apply
- requests need to be in permanent form. This would usually refer to written requests including e-mail but may include voice mail/answer phone messages if the authority has the facility to preserve this in perpetuity.
Publication Schemes have to be approved by the Scottish Information Commissioner, Kevin Dunion, who is the enforcer of the Scottish Act.
The Scottish Information Commissioner’s website can be found here
The Exemptions
Since January 2005, in response to a request for information, an authority will have to state whether it holds the information requested and if it does, to communicate the information to the applicant, unless an exemption applies. There are 17 clauses of exemptions set out in Part II of the Act.
Many of the exemptions are subject to the public interest test. This means that even if information falls within the scope of an exemption, the public authority can only refuse to provide the information if the public interest in doing so outweighs the public interest in disclosure.
Codes of Practice
Codes of Practice are provided for under the Act:
- Section 60 (Scottish Ministers’ Code of Practice on the discharge of functions by Public Authorities under the Freedom of Information (Scotland) Act 2002.)
- Section 61 (Freedom of Information (Scotland) Act 2002 Code of Practice on Records Management)
The Codes provide guidance to public authorities on good practice in exercising their functions under the Act. They are not in themselves enforceable. But the Scottish Information Commissioner will be able to issue practice recommendations if he considers that a public authority is not complying with the terms of the Codes.
Enforcement
The Freedom of Information (Scotland) Act 2002 is enforced by the Scottish Information Commissioner, currently Kevin Dunion. The new role is created by Sections 42-46 of the Act.
Environmental Information Regulations
The EIRs provide the public with a right to request access to environmental information held by public bodies. Requests for environmental information do not have to be in writing; they may come in any form. Nor do they need to mention the EIRs specifically in order for them to apply. There is also no geographical restriction; the information may relate to anywhere in the world, and may be requested by anyone, anywhere in the world.
Guidance and the Code of Practice on the EIRs are also available from the Information Commisioner and from DEFRA.
Guidance and the Code of Practice on the EIRS
The Definition of Environmental Information
The definition of environmental information is very wide and covers any information that relates to:
- air
- water
- land
- natural sites
- flora and fauna (including crops, livestock, GMOs and biodiversity)
- built environment
- health
It also covers all information relating to decisions or activities affecting, or likely to affect, any of these, including environmental protection and cost benefit analyses.
The information that should be disclosed
The EIRs provide a general right of access to environmental information, subject to certain limited exceptions. These include information that, if released, would adversely affect:
- international relations
- national defence
- public security
- the proceeding of public authorities, and the course of justice
- intellectual property rights or commercial confidentiality
There are also exceptions relating to:
- voluntarily supplied information
- personal data, particularly if the disclosure may breach an individual's rights under the Data Protection Act
There is also a special exception to protect the environment to which the information relates. Authorities would not wish to release information if, in doing so, they placed at risk a rare species breeding site, for example.
Guidance on the Environmental Information (Scotland) Regulations 2004 Updated (Sept 2005) is available here.
The Regulations on the Re-use of Public Sector Information
Background
The Regulations on the Re-use of Public Sector Information (PSI) come into force on 1st July 2005. These are based on an EU Directive which was approved by the Council of Ministers on 27th July 2003. The Regulations apply to Central Government and the wider public sector including Local Government and the NHS although not the education sector.
The Directive and the Regulations
The Directive was promulgated in order to stimulate a latent market relating to information held in the public sector, a market which is worth many millions of pounds to public sector bodies in the UK and which is largely unexploited. Essentially, we in the public sector should recognise the inherent value in all the information we hold and then make decisions about whether we are prepared to allow others to re-use it – if appropriate at a cost thus bringing additional funds into the public sector.
An introduction to the interface between FOI and PSI can be found on here.
Useful Links
The Regulations on the Re-use of Public Sector Information
Frequently Asked Questions
Click Use Licensing
The EU Directive on the Re-use of Public Sector Information
A Guide to the Regulations and Best Practice
We are here to help you and your organisation with any issues in relation to access to information law legislation.
For further information please contact: louise@dilysjones.co.uk or telephone 01344 636388