The Freedom of Information Act 2000 sets out the rights and responsibilities of both the public authorities to make certain types of information publically available and those who wish to access the information by making a Freedom of Information Act request.
Under the Act, individuals are permitted to request access to information about the activities of public organisations. Freedom of Information Act requests can be made by anyone; individuals do not have to be UK nationals or residents.
A primary purpose of the act was to allow the public insight into how UK public funds are being utilised. By enabling members of the public to make a Freedom of Information Act request, the government and public authorities can be held more accountable as to how funds are used, and was intended to allow the public more involvement in how government funds are spent.
What information can be covered within a Freedom of Information Act request?
The information requested can be recorded in any format, including emails, sound recordings and photographs. However, some information is not included within the scope of the Act, including information on certain judicial functions, and non-NHS medical activities by GP’s or dentists.
This Act also does not cover requests for individuals’ access to personal data, which should instead be requested using a subject access request in accordance with the Data Protection Act 2018 and the General Data Protection Regulations.
What are public authority duties under the Act?
A public authority includes government departments and state-funded organisations such as the NHS. This does not include all publicly funded bodies or private companies that may carry out certain public functions.
The public authority has two principal duties under the Act:
- To respond to requests for access to information; and
- To publish certain information about its activities.
Before you make a Freedom of Information Act request
Before you proceed with making a request, you should first ensure the type of information you want to request is appropriate for general publication and would not be deemed ‘vexatious’. You should also be certain that the public authority will indeed hold the information you require.
Try to access the information via informal methods such as calling the authority directly.
You should also check on the government website that the information is not already available or has not already been requested and responded to.
Model publication scheme
Every public authority subject to the Freedom of Information Act 2000 is required to adopt and maintain a publication scheme to satisfy the requirement to proactively publish information. This is in addition to responding to requests for information.
The Information Commissioner provides a model publication scheme that can be adapted by each authority. It acts as a framework for authorities to use as the basis for making information available to members of the public. The model scheme covers the following information about an authority and its activities:
- Who the organisation is and what they do
- What they spend and how they spend it
- The authority’s priorities & how they are performing
- How decisions are made
- Their policies and procedures
- Lists and registers they hold
- The services they offer
The scheme was designed to ensure the maximum amount of information is made available at minimum inconvenience and cost to the public.
Details of an authory’s scheme are usually found on the authority’s website and if the information you require for is not within the scheme, it should include details of where to find it.
Where certain types of information are not included in an authority’s publication scheme, a Freedom of Information request may be required to access the information.
Making a freedom of information act request
If you opt to proceed with a making a Freedom of Information Act request, the authority is obliged by law to tell you whether they have the information you have asked for and to provide you with that information. They usually have 20 working days to respond to your request.
The authority will usually deal with requests as a normal customer enquiry; however, when making a freedom of information act request, it is important to ensure it is valid under the Act. To be valid, the request must:
- Be in writing (in any format)
- Include your real name
- Include a correspondence address
- Describe the information requested
You do not have specify your reasons for making the request, but this may be helpful in providing context for the authority. You also do not have to specifically reference the Freedom of Information Act.
If you are unable to make the request in writing, you may be able to contact the authority to request reasonable adjustments are made under the Equality Act.
The Act offers protection against requests that are expected to exceed the cost limits for compliance. As such, your request will be considered against a proportionality test, looking at the amount of time and resources that will be required to respond to your request in relation to the request’s value and purpose.
Be careful to ensure your request does not cover information that is too general or that covers a large volume of information. Such requests are more likely to be denied on the grounds of proportionality.
Also consider contacting the authority for advice. They are under a duty to consider advice and assistance in relation to information request, and may be able to provide insight into how information is held or categorised to help you formulate a more focused request.
Throughout the proess, you should keep a record of all your correspondence, including key dates.
How should an authority respond?
In most circumstances, the authority must confirm what information they have in relation to your request and provide you with that information.
There are certain situations in which they only need to provide part of the information you have asked for, but they will need to confirm if this is the case.
They can also decide to ‘Neither Confirm Nor Deny’ (NCND) whether they have information in certain situations, for example where they feel that releasing information may unfairly prejudice a police investigation against an individual.
The authority cannot under any circumstances change or delete information as a result of your request, and to do so is a criminal offence under Section 77 of the Act. They may routinely amend or delete information if they would have done so regardless of your request; however, if they have received the request, it is good practice that they refrain from making those routine changes.
Can the authority refuse a request?
The authority can refuse all or part of a request where the following grounds apply:
Refusals on the grounds of cost
Section 12 of the Act allows an authority to refuse a request on the grounds of cost, based on cost limits for different government departments. However, there are still specific steps they must follow in order to invoke the right.
They must give you the option to refine your request to narrow down the information so that the cost of compliance by the authority is not exceeded. This is then treated as a new request, and they have 20 working days to respond.
Alternatively, if you cannot or do not want to refine the request, the authority can charge you the difference between the cost limit and the cost of compliance.
Refusals based on vexatious requests
The authority can refuse a request if it can be seen as vexatious. However, they must exercise care when relying on this basis. The authority must base their decision on the grounds that it is the request itself that can be proven to be vexatious and not the person requesting the information.
Refusals based on repeated requests
The authority can only refuse a request on the grounds it is a repeated request where the request is the same or substantially similar to a request from the same person that they have already complied with.
The authority is required to send you a refusal notice, and the grounds for which it has been refused; however they do not need to disclose any further details on their decision-making process.
Withholding information
Certain exemptions within the Act allow the authority to withhold some or all of the information requested. These are things such as information where the release would be against public interest, exemptions based on harm to an individual and exemptions permitted to comply with the Data Protection Act.
What if I am not happy with the outcome?
Most authorities have a complaints process you will need to follow if you are unhappy with the decision. If you are still dissatisfied following the authorities’ review of your complaint, you can esaclate the issue by contacting the Information Commissioner’s Office (ICO). You have the right to complain to the Information Commissioner’s Office if you think that an authority has not fulfilled their duties under the Act.
You can complain if you feel that the authority:
- Has failed to respond correctly to your request
- Hasn’t published the correct information as required by the model publication scheme
- Has deliberately, destroyed, altered or concealed the information requested to prevent it being provided
What if the authority has breached their duties?
The Information Commissioner’s Office has enforcement powers in relation to freedom of information, therefore if the authority fails to reconsider its actions following a complaint and rectify any mistakes, the ICO can issue a decision notice as to whether the authority has complied with their duties, and order them to put it right if they have breached their duties.
The ICO can also investigate claims that the authority has criminally destroyed, altered or concealed information.
The Information Commissioner’s Office does not have the power to fine the authority nor order them to pay compensation as a result of the breach.
You can appeal the ICO’s decision to the Information Rights Tribunal. There is no fee to appeal, and you do not need representation by a solicitor. However, it is recommended to seek legal advice and representation in the event of a Tribunal.
Why Legal Advice Helps
For advice and guidance on the Freedom of Information Act, from making a request to enforcing your rights, take professional legal advice.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
