Transcript Freedom of Information Act

Freedom of Information Act 2000
Sarah Hanson
Partner
CMS Cameron McKenna LLP
E-mail: [email protected]
Tel: +44 (0) 20 7367 2559
Freedom of Information Act 2000
 Fully in force from January 2005
– applies retrospectively
 Applies to public authorities:
– listed in Schedule 1;
– designated by the Secretary of State; and
– companies that are publicly owned
 Act is regulated by the Information
Commissioner
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Public Authorities
 Advisory bodies covered by FOI requests
include:
– Medicines and Healthcare products
Regulatory Agency
– Medicines Commission
– Committee on Safety of Medicines
– Advisory Board on registration of
homeopathic products
– British Pharmacopoeia Commission
– Veterinary Products Committee
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Codes of Practice
 The “Access Code”
 The “Records Management Code”
 Operate alongside the Act
 Responsibility of Secretary of State to keep
codes current
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Provision of Information
 “Information” – recorded in any form
 Publication scheme
 Information must be disclosed if:
– held by a public authority (except on behalf of
another person); or
– held by another person on behalf of the authority
 Held at the time when request is received
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Provision of Information cont.
 No restriction on purpose of application
 Request:
– must be in writing (can be received by
email)
– state the name of applicant and address for
correspondence
– describe the information requested
 Public authority must provide that information
within 20 working days
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Duty to Disclose
 Paul Harper v Information Commissioner
– Cannot claim no longer hold info because
employees have “deleted” it from computers
 P Quinn v the Information Commissioner
– Where PA cannot locate info still regarded
as “holding” it…
– but may refuse disclosure on the grounds
that cost in doing so would exceed
appropriate limit
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Clarification/Fee
 Public authority may request further information
where the request is not clear
 Requests that cost under £450 are free (except
for incidental costs, photocopying etc)
 If over £450 can refuse to answer or elect to
charge a fee for providing information within
regulations set by Secretary of State
 Fee to be paid in advance
 Consultation of amended FOI fees regulations
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Advice and assistance
 Public authority must provide advice and assistance as far
as reasonable to applicant
 Access Code provides guidance on what is “reasonable”:
– advised of progress
– advising potential applicant of rights
– assisting applicant to focus request
– advising on alternative availability
 Should try to give effect to applicant’s preference as to
format in which information is provided
– if not reasonably practicable,notify applicant of
reasons
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Exemptions
 “Absolute exemptions” (info need not be
disclosed)
 “Qualified exemptions” (public interest test)
– in all the circumstances does the public
interest in maintaining exclusion
outweigh the public interest in
disclosing?
– presumption: in the public interest to
disclose
 Exemption can apply to whole or parts of
information
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Exemption - Guidance
 Likely to be in public interest if:
– facilitates transparency / accountability of decisions
– understand / challenge decisions affecting applicant
– assist understanding / debate of issues of day
– facilitate transparency / accountability of spending
public money
– bring to light information about public health and
safety
 Authority will take account of a number of factors:
– fact that information is technical, complex and may
be misunderstood may not be a reason to withhold
disclosure;
– whilst the fact that information may be misleading if it
is incomplete could be a reason to withhold
disclosure
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Exemptions
 ABSOLUTE
–
–
–
–
–
–
–
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Available by other
means
Security services
Court records
Parliamentary privilege
Provided in confidence
Prohibited from
disclosure by law or
regulation
Personal data
 QUALIFIED
–
–
–
–
–
–
–
–
–
–
Future publication
National security/
defence etc.
Law enforcement
/proceedings
Audit / Govt policy
Royal household
Prejudice effective
conduct of public affairs
Environmental / Health &
Safety
Legal prof privilege
Commercial interests
Personal data
Refusal of a request
 Where authority refuses request because of exemption,
authority must:
– within 20 days notify applicant that request refused
– specify exemption relied on
– state (if not apparent) why exemption applies
 If authority refuses a request:
– notification must include complaints policy (if any)
and
– explain right of applicant to apply to Information
Commissioner for decision
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Freedom of Information Act 2000 & the
MHRA
 Publication Scheme
 Classes include:
– organisational structures
– corporate publications
– guidance notes and application forms
– vigilance schemes
– RAMA database
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Memorandum of Understanding
 Common understanding of what will be disclosed,
withheld, or disclosed only after consultation with third
parties:
– not legally binding;
– application of public interest test may result in
different outcome to those set out in the
Memorandum; and
– working document subject to review
 Signatories:
– MHRA (medicines division)
– Veterinary Medicines Directorate
– Association of British Pharmaceutical Industry
– Proprietary Association of Great Britain
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Traffic Light Document
Part 2 of the Memorandum of Understanding sets out likely
disclosure responses using a ‘traffic light’ system:
G* = already published routinely
G = disclosure on demand without consultation
A = disclosure on demand after consultation
with relevant third party (subject to editing
out of commercial confidential information)
R = anticipated that disclosure will not take
place as information will be confidential,
commercially sensitive or information which
would otherwise be exempt from disclosure
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Draft MHRA & VMD Guidance
 June 2007 MHRA & VMD prepared:
– “Guidance on the disclosure of types of
Human and Veterinary Medicines
Information held by the Human and
Veterinary Regulatory Authorities”
 Due to replace MOU which:
– “had not adequately reflected the greater
spirit of openness and commitment to
disclosure”
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Exemptions to Disclosure
 The most relevant exemptions to disclosure
are:
– information provided in confidence
– prejudice to commercial interests
– personal information
– information intended for future publication
– investigation and proceedings conducted
by public authorities
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Prejudice to Effective Conduct of Public
Affairs (Qualified)
 Information held by a public authority exempt
where reasonable opinion of qualified person:
– would / likely to inhibit:
– free and frank provision of advice, or
– free and frank exchange of views for the
purposes of deliberation, or
– would otherwise prejudice or likely to
prejudice effective conduct of public
authority
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MHRA - rofecoxib
 Request for information re safety and efficacy
of a medicine
– Including reviews/analyses/reports and
results of clinical trials
 MHRA disclosed some information however
cited the “prejudice to effective conduct of
public affairs” exemption (amongst others) with
respect to the rest of the information
 Minister responsible believed exemption had
been properly applied
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Health and Safety (Qualified)
 Information is exempt where disclosure would,
or would be likely to:
– endanger the physical or mental health of
any individual, or
– endanger the safety of any individual
 May apply to documents submitted by MHRA
by a company that (directly or indirectly) link
named individuals with animal experimentation
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MHRA - rofecoxib
 In case above MHRA also argued that the
health and safety of individuals at risk from
animal rights activists
– those directly and indirectly involved
– also employees at named organisations
may be at risk
 Public interest test considered and favoured
maintaining the exemption
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MHRA – rofecoxib – public interest test
Favouring disclosure:
 Regulation of medicines matter
of significant public interest
 Increase scrutiny, openness
and transparency
 Only a few animal rights
activists would carry out
violence
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Against disclosure:
 Increase risk of violence /
intimidation
 Connected persons at risk
 Public interest is in
ensuring MHRA has acted
within its rules and
regulations not in knowing
individual names
Personal Data Exemption (Qualified and
Absolute) – s.40
 Where applicant is the data subject access is
governed by DPA 1998
 Where applicant is not the data subject and
where disclosure would:
– contravene data protection principles =
absolute exemption
– cause damage or distress = qualified
exemption
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Information provided in confidence
(Absolute) – s.41
 Exemption applies if information obtained by
authority from any person and disclosure
constitutes an actionable breach of confidence
 Confidentiality provision in contract can be
implied if not explicit
 Nature of information important not its label –
can change over time
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Newcastle upon Tyne NHS Trust –
August 2006
 Refusal to disclose external report prepared following
criticism of expert evidence
 Report was obtained from “any other person” in that it
was obtained from the independent panel of experts
 IC considered whether the report would have the
“necessary quality of confidence”
 Information:
– could not be said to be trivial;
– was not in the public domain; and
– subject to a confidentiality clause
 ‘Prior written approval” of advisors needed – unanimously
declined
 Held that release of information would be an actionable
breach
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Epsom & St Hellier NHS Trust – October
2006
 Mother requested ‘all information concerning my
daughter’ including health records
 Medical records had the necessary quality of confidence
– implicitly created by nature of doctor/patient relationship
 If breach would affect the conscience of the defendant
then information could be restrained even where it would
not damage the confider
 Duty of confidence can survive the death of the person
 Act designed to be applicant blind so will not take into
account unique circumstances of case
 Held exemption applied to medical records and “chunks”
of the legal file
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Practical Tips
 Take steps to protect information when it is submitted
– redact personal data
– keep confidential and non-confidential material
separate
 Set out circumstances where and reasons why the
information is confidential, and for how long
 Personal Data / Confidential Information willl not remain
so indefinitely
 Protective markings: however, serve only a primary
indication and cannot always be relied upon
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Commercial Interests (Qualified)
- s.43
 Trade secrets exempt
– “competitive edge”
– economic value from not being generally
known
 Would / would be likely to prejudice commercial
interest of any person (including public
authority)
– real and significant risk of prejudice
– does not apply to ‘historical records’ – more
than 30 years old
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Is information “commercially sensitive”?
 Guidance by IC sets out questions to be
considered:
– Used for the purpose of a trade?
– Obvious / made clear that releasing would
cause harm / benefit competitor?
– Is knowledge restricted to a limited group?
– How easy for competitors to discover /
reproduce information?
 Will apply where disclosure would have a
significant impact on revenue/ability to secure
finance
– not if would simply cause embarrassment
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MHRA – January 2007
 Subject access request made for document concerning
allegations made in request of the quality of analysis
performed by a specified individual
 Relevant document split into two sections – diary of
investigation and results of the investigation
 Qualified exemption – need to show that release would
harm someone’s commercial interest and that exemption
outweighs public interest
 Commercial interest exemption
– must be a “significant risk” of prejudice
– passage of time helped to demonstrate low risk of
prejudice
 Held that public interest in disclosure outweighed that
against disclosure
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Tendering for Public Authority Contracts
 All communication during tendering process
may be subject to disclosure
– Info that would be sensitive during
tendering process may no longer be so
once contracts are signed
 Public Interest favouring disclosure:
– Increased understanding of decision
making process.
– May encourage competition
– Increased transparency and accountability
of spending of public money
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Practical Tips
 Clearly identify what info is commercially
sensitive and for what period it will remain so
 Annex sensitive info in a schedule / appendix to
main document
 Don’t make blanket claims of “commercially
sensitive”
 Agree all confidential information to be returned
once no longer required by public authority
 Use confidentiality clauses where appropriate
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Information available by other means
(Absolute)
 Information must be “reasonably accessible” to
public by other means
– even if only available on payment of a fee
 Includes information available under a
publication scheme
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Information intended for future
publication (Qualified)
– Must be reasonable to withhold information
until that date
– Intention to publish must be firm e.g. where
info already prepared for publication
– The date of publication need not be
determined
– Drafts may be covered where final version
is intended for publication
– Also applies to info held by a public
authority that another person intends to
publish
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Pesticides Safety Directorate
 Request for lists of safety studies carried out on
two named pesticide ingredients
 Notifiers submit to PSD prescribed info - PSD
then generates draft report to be placed on
EFSA website within 6 weeks
– full report is later placed on website – may
be several years later
 Complainant requested this info in advance of
its publication on website
 Held – reasonable to withhold disclosure
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PSD - Information intended for future
publication – public interest test
 Public Interest against
disclosure
– Undermine the
approval process
– Info was not yet
available to EFSA
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 Public Interest
favouring disclosure
– Delay was over and
above 6 weeks
– Earlier disclosure
would facilitate work
Practical Tips
– The sooner the time for intended publication
the more likely the exemption is to be
upheld
– Provide list of planned publications e.g. on
website
– Provide a timetable containing intended
dates of publication
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Legal Professional Privilege (Qualified)
 All communication with professional legal
advisor is confidential and will not be revealed
without consent
– no need to demonstrate potential for
‘prejudice’
– even trivial information may be covered by
exemption
 Qualified exemption – therefore necessary to
consider public interest test
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Public Interest Considerations –
Guidance issued by IC
 Timing of disclosure
– Has litigation ended or is ongoing /
threatened?
 Policy Advice
– Public interest in promoting public debate
and increasing accountability
 Access to justice and right to fair trial
– Strong arguments against disclosure where
access to justice may be prejudiced
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MHRA – January 2007
 Complainant requested:
– all info between September 01 and March
02 relating to an individual and MCA, and
– in full all info regarding the formal report
 MHRA:
– under first request, provided 10 documents
with personal data redacted
– withheld all further documents requested
citing legal professional privilege exemption
 Held – exemption applied
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MHRA – January 2007 cont
 Going against established principle of
confidentiality would discourage clients from
seeking legal advice
 Exemption is essential for the proper
administration of justice
– free and frank exchanges facilitate
information sharing leading to better advice
 Ability to seek legal advice without fear of future
disclosure results in improved quality of
decision making
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Practical Tips
Where in-house counsel giving advice:
 Try to separate legal and non-legal matters
 Try to separate within matters information that
can be disclosed from information that cannot
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Review Process
If information is withheld:
 Internal review by senior agency official not
previously involved with the request
 Such internal review procedure shall be detailed
in the refusal notice
 Information Commissioner will review where no
/ insufficient internal review
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Sanctions
 IC assesses good practice, compliance with Act and
Codes of Practice
– Failure to conform to codes of practice - “Practice
recommendation”
– Failure to comply with obligations under FOIA “Enforcement notice”
– Following investigation by IC - “Decision notice”
identifies steps required or compliance
– If IC requires further information to facilitate
investigation - “Information notice”
 IC can certify to court non-compliance with “notices” contempt of court
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European Medicines Agency
 Public access to information held by EU institutions and
agencies is governed by Regulation (EC) No 1049/2001
 Broadly similar to provisions in FOIA
 Aims to promote citizen participation in decision making
process and increase legitimacy and accountability
 Applies to all documents held by an EU institution (or
Agency created by an EU Institution)
 Similar exemptions as under FOI Act - also utilises ‘Public
Interest’ Test
 EU institutions must consult third party where unclear
whether exemption applies
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Dangers
 Competitors/press can use FOI Act to obtain
information
 Accidental disclosure of confidential / personal
information
 Avoid sanctions for non-compliance by seeking
advice from IC on unclear matters
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Protection
 Educate staff
 Mark submissions ‘Private & Confidential’
 Submit documents in two versions where possible
 Written acknowledgement from MHRA
 Do not ignore a notification from the MHRA
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Useful Websites
 www.ico.gov.uk
 www.foi.gov.uk
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Thank you for your attention
Sarah Hanson
Partner
CMS Cameron McKenna LLP
E-mail: [email protected]
Tel: +44 (0) 20 7367 2559
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