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Freedom of Information Act

Man in a library of document folders

This is Martin Rosenbaum's guide to the Freedom of Information Act.

The Freedom of Information Act was brought in to enable the public to get information from public authorities.

Where does it apply?

The Freedom of Information Act applies to England, Wales and Northern Ireland. Scotland has the Freedom of Information (Scotland) Act, which is similar but not identical.

What does it cover?

The basic principle of FOI is: "Any person making a request for information to a public authority is entitled ... to have that information communicated to him".

FOI gives you the legal right of access to any piece of information held by most public authorities, unless there's a valid reason for not giving it to you - of which, of course, there are plenty.

The laws came into force on 1 January 2005, but they apply to information created before then, as long as it is still held.

How do you make an FOI request?

An FOI request should be in writing. Email is fine (and most large public authorities give an email address for FOI requests somewhere on their website).

Does it cost money?

In England, Wales and Northern Ireland there is no fee for making an FOI request as such, but you could be charged for photocopying and postage. In Scotland the charging situation is different.

What is a "public authority"?

The range of public authorities covered is very broad, and includes government departments, local councils, the armed forces, the NHS down to hospitals and GP surgeries, most schools, universities and the Police.

Houses of Parliament

It also includes a long list of other public bodies from the important (the Electoral Commission) to the obscure (the Government Hospitality Advisory Committee for the Purchase of Wine).

In what circumstances can they refuse to answer?

Your request can be refused if it is repeated, 'vexatious' or would involve excessive cost (more than 600 for central government, 450 for other authorities), or if the information is exempt.

There are two kinds of exemptions:

  • absolute (eg security services, court records)
  • qualified (eg ministerial communications, commercial confidentiality)

Where the information is covered by a qualified exemption, you should still be given it if the balance of the 'public interest' favours disclosure (or even if the case for secrecy and disclosure are equally balanced).

Environmental information is exempt, because it is covered instead by the Environmental Information Regulations which on the whole are a stronger tool for getting access to information.

Absolute exemptions

MI6 Headquarters

Absolute exemptions include information which relates to the security agencies, certain court records, personal information protected by the Data Protection Act and material which is subject to parliamentary privilege.

Qualified exemptions

Under a qualified exemption information can be withheld where 'the public interest in maintaining the exemption outweighs the public interest in disclosing the information'.

Queen Elizabeth II

Qualified exemptions include information likely to jeopardise national security, or likely to prejudice defence or international relations.

They also include information intended for future publication, that which prejudices the economic interests of the UK or which might prejudice law enforcement.

It also covers communications with the Royal family.

How do you define "public interest"?

"Public interest" is not what interests the public but what is in the public's interest. It is not defined in law.

The criteria by which authorities will judge it include such notions as transparency and openness in public administration, scrutiny of public authorities for their decisions and spending of public money, and the accountability of elected politicians to their electorates.

Rik Mayall as Alan B'stard
Rik Mayall as Alan b'stard

Generally it is in the public interest to inform public debate, and facilitate public participation in decision-making or improve public understanding of the workings of government.

And the public interest can also be served by information which would improve public awareness of potential threats to their health and safety or threats to the environment.

More generally "public interest" can involve public standards, such as value for money, integrity in public life and exposure of misconduct.

Is there a set time frame?

The public authority has to respond 'promptly', and in any event within 20 working days - except that this can be extended if they need more time to assess the public interest on a qualified exemption, which they often do.

The Information Commissioner has said that he expects assessment of the public interest test and internal reviews to be completed within 40 working days, but there is no specific time limit fixed in law. In practice it can sometimes take several months.

What if you're not satisfied?

The public authority has to give you reasonable advice and assistance.

If you are not satisfied with the response, you can request an internal review. If still unsatisfied, you can complain to the Information Commissioner; and finally take the case to the Information Tribunal (not in Scotland) and higher courts.

Tips on framing requests

A Freedom of Information request can be a very productive exercise but sometimes you will get less than you expected and are really entitled to, so it pays to frame your request carefully.

Think before you ask

The hardest decision is often how specific or general to be. Too specific, and you might miss out on something useful.

Too general, and you will face longer delays, you may get a less cooperative attitude, you might get a refusal as it's over the cost limit, or you might receive such large quantities of boring and irrelevant material that you miss the interesting nugget contained within.

Filing cabinet

So be careful what you ask for: you might get it. If you do know exactly what you want, be as specific as possible. It is quicker and simpler.

Some authorities will interpret a request reasonably, others as narrowly as they can.

Think about the kind of material you might get

On this occasion, forget what you've been told about thinking outside the box. Think inside the filing cabinet.

What are the kinds of records that a public authority might actually keep on a certain topic? What are the right pieces of jargon to describe them?

You are not limited to requesting printed documents. 'Information' also covers for example video and audio recordings.

Remember how broad the range of bodies covered by FOI is. Many of them have probably never received an FOI request yet. Yours could be the first.

If it is environmental information which you are after (and the definition of environmental information is quite broad), refer to the Environmental Information Regulations which on the whole give you greater rights of access. They apply for example to some private companies which are not subject to the FOI Act.

Be realistic - demand the possible

Experience (and common sense) is some guide as to what public authorities or (on appeal) the Information Commissioner will think it is in the public interest to give you.

You are most likely to get: details of how public money is being spent; information on public health and safety; performance measures for public services.

You are somewhat less likely to get: the latest communications with world leaders; the minutes of yesterday's cabinet meeting; the routes taken by Britain's nuclear submarines.

Make full use of 'advice and assistance'

Public authorities have to give you this under the Act. Some of course will be more helpful than others, but you won't know which until you try.

You can ask them how their records systems are organised, the best way to phrase a request so that it fits with their record-keeping jargon, what are the sensible options for refining a request if it is too costly, and so on.



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