Transcript Freedom of Information Act 2000

FOIA at UEA Implementation
FOIA Contact Training
14 February 2005
Overview of Session

Section1 - Review of FOI Act


Section 2 – Responsibilities and
Accountabilities


Work & Information so far
Who does what?
Section 3 – Handling Requests

How do we do it?
Objectives of Day
Understand basics of FOI Act
 Understand & agree responsibilities and
accountabilities
 Detailed & directed guidance on handling
requests
 Information on exemptions

Review – Work to date

Objectives of Act


Openness, accountability, credibility, culture
change
Obligations under the Act

Responding to requests for information held
Confirm or deny existence of information
 Provide information


Publication Scheme
Review – Work to date

Basic features of Act

What is a request






In writing & legible
Name & contact details of applicant
Clear enough to identify what is sought
No need to mention FOIA
Request received from anyone, anywhere
Manner of receipt - via web, via mail, email, in person
Review – Work to date

Basic features of Act
 How








do we respond?
Provide advice & guidance
Distributed responsibility for handling requests
Assess ‘normality’ of request
Referral to FOIA contact and/or IPO
Acknowledgement of receipt – IPO
Assess & apply exemptions & fees
Provide information within 20 working days
Release information in form of applicant’s choice
Responsibilities and
Accountabilities

Code of Practice for Responding to Requests
 Background & basis of Code
 s.45 FOIA, Lord Chancellors Code
 Imperial College work
 Approved by Information Framework Project Board
 Provisions of Code
 UEA approach to FOIA
 Organisation of FOIA administration
 Guidance on responding to requests
 Evolutionary
approach
Who does what? (1)

UEA Organisation
UEA Information Policy Officer
Faculty/Division Contact
Frontline staff
All UEA staff
Who does what? (2)

Information Policy Officer
 Recommend
Policy & Administer Policy
 Administration of Requests




Communication with requesters
Determination of Exemptions & Fees
Preparation of documents / redaction
Release of information within time frames
 Staff
awareness & training
 Maintenance of Publication Scheme
Who does what? (3)

Faculty / Division Contacts
 Ensure
application of policy within Faculty/Division
 Assist in the administration of Requests




Assist in determination of status as valid FOIA request
Location and production of documents
Assist in determination of Exemptions & Fees
Assist in preparation of information for release
 Assist
with maintenance of Publication Scheme
Who does what? (4)

UEA Staff

Know basic responsibilities under Act & act
accordingly
 Redirection of email (ie. Possible requests)
 Responding to normal requests
 Referral of possible FOIA requests to FOIA
Contacts
Workflow – a reminder








Receipt of request
Assessment of request
Determination of work/location/fees
Communication with requester
Locate/produce documents
Assessment of information (eg. Exemptions)
Preparation of information/summary
Release of information
Exercise

Winding our way through workflow

Examination of workflow of request
 Assignment of responsibility for actions


IPO, Contact, Staff
Discussion of workflow – does it work for
you?
Workflow
Requests for Information : Stage 1 - Dealing with Incoming Requests
Does the request mention the Freedom of Information Act?
Yes
No
No
Do you (or your team) have the information requested?
Yes
No
Do you wish to answer the request?
Yes
No
UEA Information Policy Officer
Library
01603 593523
[email protected]
Are you certain there are no other problems with releasing
the information?
e.g. personal data, confidential information, commercially sensitive?
Yes
Answer the request as part of normal UEA business
Forward the request immediately to FOIA Contact (Stage 2)
(copy in UEA Information Policy Officer)
Workflow (2)
Requests for Information : Stage 2 – Assisting applicant & assessing request
Does the request fulfil the requirements of the Act?
No
Yes
Assist the Applicant
Would the part or all of the request best be handled
by another Public Authority?
Yes
Forward part or all of
request to other PA
No
Estimate fees and inform applicant, if necessary.
Proceed with the request?
No
Yes
UEA Information Policy Officer to work with relevant
Division(s) to locate and retrieve the information
Check for exemptions (Stage 3)
Contact Applicant (Stage 5)
Workflow (3)
Requests for Information : Stage 3 – Checking for exemptions
Does the information match the request?
No
Yes
IPO to re-contact
department(s) for all
further information.
Does an absolute exemption apply?
No
Does a qualified exemption apply?
No
Yes
Yes
Consider duty to confirm or deny
Consider Exemption (Stage 4)
Absolute Exemptions
Include:
Already Published
Personal Data
National Security
Court Records
Received ‘in confidence’
No duty to disclose information
Disclose
Contact Applicant with appropriate response (Stage 5)
Workflow (4)
Requests for Information : Stage 4 – Applying Qualified Exemptions
Would releasing the information:
a)
Threaten health & safety of any individual
b)
Commercially disadvantage UEA
c)
Prejudice prevention of crime
d)
Reveal information covered by DPA
e)
Possibly be covered by another exemption
No
Yes
Where appropriate consult with department(s) or
third parties to assess if an exemption applies
No
Is releasing the information in the public interest?
Yes
Withhold information
Contact Applicant with appropriate response (Stage 5)
Workflow (5)
Requests for Information : Stage 5 – Responding to the Request
No
Is any information being released?
Yes
Check the required fee has been paid
Assess if the required method of providing the
information can be achieved (e-mail, hard copy, in person etc)
Ensure that letter to applicant covers:
• Any partial disclosure is explained
• If part of request has been passed to another Public Authority
• Any exemptions are explained
Contact applicant.
Inform them of Complaints Procedure
Tracking requests




Tracking system required for audit, management
Low tech solution initially (ie. Excel spreadsheet)
Single entry point initially
Essential components





Information about requester (name, contact)
Information about request (when, who, where…)
Logging of actions/correspondence
Dates of actions
Bring forward functionality
Advice and guidance – Initial




Obligation – make ‘reasonable’ efforts to person
who has made, or proposes to make request
Underlying philosophy to maximize information
available to public
Early, frequent communication important but no
requirement to follow up if no response
Advice & guidance can be given at any point
Advice and guidance - Initial

When should initial advice be given?

Clear request is intended
 Invalid request due to insufficient or unclear
information
 Refusal due to cost
 Person with difficulties in making request
 Need to advise applicant of rights
Advice and guidance – Initial

What is reasonable?

Usual customer service standards
 Examples
Advising of progress & of rights
 Assisting in focussing of requests
 Advising of existence of information elsewhere
 Transcription of voice call + confirmation
 Provide outline of information held
 Access to catalogues/indexes

Advice and guidance - Ongoing

Extension (nb. Clock started)








Can inform of more time needed IF public interest test needed
Must give estimate of extra time required & must be able to
justify to ICO
Other legislation – advise if request under other
legislation
Refusal - Exceed cost limit, exemption
Further clarification/modification
Fee matters
Disclosure issues
Information held elsewhere
Advice and guidance – 3RD Party




Duty to inform of UEA obligations in advance
Amendment to contracting practice
Option to inform of release of 3rd party data
UEA approach
 Communication
to contractors
 Contractual terms amended in ITTs
 Notification of release of information
Exercise
Advice and guidance – when, who from,
and how
 Sheet with examples
 Discussion & dialogue

Response Time



Base time – 20 working days
Working day = non-statutory holiday day
Clock starts:




Day AFTER receipt of the request
Day authority receives information necessary to identify & locate
information (but don’t delay)
Date of receipt of transfer from another authority
Receipt of request is when:


Delivered, or received in ‘inbox’ (email)
Where re-direction of email exists, date is delivery to alternative
address
Response Time

Extensions/suspension of clock

Fee requests (clock restarts where stopped
when fee received)
 NOT because information voluminous
 where public interest needed to be applied
 school holidays (but not HE or FE)
Response Time

Good practice

Separate email address for FOI requests
 Use of automated out of office notices with
alternative addresses
 Alternative addressee aware of FOIA!
 Acknowledgement of requests

And if we don’t respond in time?


Breach of s.10; if complaint by requester...
ICO decision notice; Enforcement notice
Fees







Fee is discretionary
Fee can be imposed if cost is over ‘appropriate limit’ to
locate, retrieve, extract information
Appropriate limit = £450 / 18 hours @ £25/hour
Limit not for exemption assessment or communicating
with applicant
No obligation to respond if appropriate limit exceeded
Disbursements charged back always
UEA policy is no response if request over appropriate
limit ; not to charge disbursements if very low
Exemptions
Presumption of disclosure but exemptions
to disclosure permitted or required under
Act
 23 separate exemptions
 2 types of exemption

Absolute – 8 exemptions
 Qualified – 15 exemptions

Absolute Exemptions
No right to know, exempt information not
subject to public interest test
 Absolute Exemptions of interest


S. 21 - Information already accessible
 S. 40 - Personal data
 S. 41 - Confidential information
S. 21 – Information already
accessible
Overview - information must be
‘reasonably accessible’ to applicant
 Factors affecting accessibility

Information itself – format, organisation,
holdings
 Applicant – legal status, skills, disadvantage

S. 21 - Information already
accessible

Examples

Information within Publication Scheme
 Statutory duty to release (eg. Annual reports)
 Published research

Most of this material will be released
without reference to Act
S. 40 – Personal Data

Overview – s.40 exempts information:

That is personal data of the applicant, (Part 1) or,
 Personal information of others where release would
contravene data protection principles (Part 2) or,
 Personal information that no-one can see



Applies to ‘personal data’ within meaning of DPA
– identity of applicant critical
DPA ‘supercedes’ FOIA; ‘referral’ section
Duty to confirm or deny covered by s.40
S. 40 – Personal Data

3rd Party data

Exempted if release contravenes data protection principles



8 point statutory code, Part 1, Schedule 1, DPA
First principle most relevant – information processed fairly & lawfully
subject to conditions
Factors in assessing contravention of ‘fairness’ principles





How information obtained
Expectations of data subject
Effect of disclosure on data subject
Content of information
Public interest in disclosure
S. 40 – Personal Data

3rd Party data – disclosure allowed where:

Data subject agrees
 Disclosure contractually required
 Compliance with legal obligation of data
subject
 It protects vital interest of data subject
 Administration of justice, functions of Crown,
public interest functions
S. 41 – Information in Confidence

Exempt from disclosure if:

Release would result in breach of confidence
action in common law by anyone
 Information is obtained from any other person
Applies to information from another public
authority
 Covers duty to confirm or deny

S. 41 – Information in Confidence
‘Confidentiality’ due to agreement or
nature of information or method of
acquisition
 ‘Actionable’ includes success of action
 Need for legal interpretation of law of
breach of confidence
 Need to consult 3rd parties (LC Code)

S. 41 – Information in Confidence

Is it confidential? Factors to consider are:
Must be worthy of protection and not in public domain
 Existence of express agreement by public authority
(BUT agreement must be necessary to exercise
function, must be confidential, justifiable to ICO)
 Is information is clearly, by its nature, confidential (eg.
Medical records)?
 Is protection of similar information longstanding,
consistent & well-known practice?
 Public interest test

S. 41 – Information in Confidence

Public Interest test for ‘in confidence’
Breach not ‘actionable’ if public interest in
favour of disclosure
 Public interest must be specific; no general
interest in breach of confidence
 Authority & requester interests irrelevant
 Test is also ‘What would a court say?’

S. 41 – Information in Confidence

Public interest factors favouring disclosure





Revelation of misconduct/mismanagement of funds
Revelation of bad value contract
Correction of untrue statements/acts by public authority
No harm thereby – ‘old’ information
Public interest factors against disclosure




Risk to public or personal safety
Damage to public administration
Contractual or professional obligations
Negative effect on supply of important information
Exercise
Absolute Exemptions – what exemption,
issues to consider
 Sheet with possible requests
 Discussion & dialogue

Qualified Exemptions





Public interest test applies
Must assess if public interest better served by disclosure
than by non-disclosure
Presumption that public interest served by disclosure
Must be ‘public’ interest, not ‘private’ interest
What is the ‘public interest? - Factors to consider are






Furthering understanding & participation of public
Promoting accountability & transparency in/for decisions and for
spending
Furthering understanding of decision by public
Revealing health & safety information
Contribution to scientific advancement
Assist in access to justice &/or fundamental rights
Qualified Exemptions

Examples





Section 22 – Future publication
Section 31 – Law enforcement
Section 37 – Health and Safety
Section 39 – Environmental Information
Section 43 – Commercial interests
S. 22 – Future Publication

Information exempt if:

Information held with a view to future publication by
anyone in future
 Intent to publish exists at time of request
 Reasonable to withhold until publication


Intent of FOIA is not to force premature
publication
Cannot use future publication unreasonably
S. 22 – Future Publication

Publication includes:

speech, writing, programme or other
communication
 press releases, announcements, bulletins,
 CDs, videos, books, journals, newspapers,
 consultation papers, reports, research,
statistics,
 TV or radio broadcasts
S. 22 – Future Publication

‘View to publication’ must:
 have
a firm intention to publish
 be in existence at time of request & continuing



Publication can be by anyone
‘Rejected’ or non-published information open to
disclosure
Advancement of publication date is possible
even if reasonable to withhold til publication date
S. 22 – Future Publication


Public interest re publication is about timing
Other factors re public interest:






Nature of publication timetable – close/distant
Prejudicial effects of release/delay
Fairness of release to applicant vis a vis others
Pre-publication & publication procedures
Pre-existing commitments re publishing
Good practice


Have record of intention to publish (e.g. Publication Scheme,
contract)
If public interest in favour of disclosure, publish?
S. 31 – Law Enforcement

Information is exempt if release would prejudice:

Prevention of detection of crime
 Apprehension or prosecution of offenders
 Administration of justice
 Assessment/collection of tax or duty
 Civil proceedings by authority arising from Crown
investigation

Only applies to information not exempted under
s.30 (ie. authority has prosecution responsibility)
S. 31 – Law Enforcement

Prevention or detection of crime information, or
apprehension or prosecution of offenders examples
 Intelligence
about anticipated criminal activities
 Planned police operations, strategies & tactics
 Information whose release would facilitate the
commission of an offence
 Information whose release would prejudice fair trial of
any person
S. 31 – Law Enforcement

Public interest test factors re prevention or
detection of crime information, or
apprehension or prosecution of offenders:

Degree & likelihood of prejudice
 Effect of crime on individuals, society and/or
economy
 Incremental effect of other disclosures
S. 37 – Health & Safety

Exempt if likely to:
 Endanger
physical or mental health of any individual
 Endanger the safety of any individual



Key concept is risk of harm
Wide interpretation of health & safety by courts
Individual need not be identifiable; can be part of
distinct group of persons
S. 37 – Health & Safety

Physical or mental health includes
 Impairment,
injury, illness, disease
 Recurrence, aggravation, acceleration, deterioration
of pre-existing condition
 Emotional & psychological well-being; not necessary
to be pathological

Safety includes:
 Protection
from harm
 Freedom from danger
S. 37 – Health & Safety

Factors to consider are:
 Likelihood of endangerment
 Susceptibility of individual to

harm
Examples of exempted information - disclosure
would :
 Allow
anyone, group, to be identified/located & then
targeted for attack
 Lead to anyone being threatened or harrassed
 Cause distress (eg. Graphic information about
deceased persons)
S. 37 – Health & Safety

Public Interest considerations

Never in public interest to endanger health and
safety
 Awareness of risk is in public interest
 Size & likelihood of risk
 Nature and seriousness of outcome
 Possibility that disclosure help health and safety of
others
 Danger could be managed by other means
S .39 – Environmental Information
Information covered by Environmental
Information Regulations (2004) is exempt
 Referral section – requests must be
handled under EIR regime – no choice
 DEFRA guidance forthcoming
 Request & information in any format

S. 39 – Environmental Information

Environmental information includes:

State of elements of the environment
 Factors affecting or likely to affect environment
 Measures affecting or likely to affect environment,
 Reports on legislation
 Economic analyses within measures
 State of human health including food chain

Terms defined (eg. Air, land) broadly
S. 39 – Environmental Information

Specific ‘issues’ covered by EIR:





GM crop trials, Pesticide testing, Diseased cattle,
Land use planning
Includes information held by, or for, authority
Information can be in any format
Information not limited by geography or time
Further guidance forthcoming
S. 43 – Commercial Interests

Information exempt if it is:
 Trade secret
 If disclosed, would,
or would be likely to prejudice
commercial interests of any person (including
authority holding information)

Trade secret is
 Used in trade or business
 If disclosed, would cause harm
 Information
over which the owner limits dissemination
and/or publication
S. 43 – Commercial Interests

Commercial interest is:
 Business, trade or profession
 Both as purchaser & supplier
 Ability to successfully participate
in commercial
activity
 Not a financial interest (ie. financial position)

Any person is
 Company,
sole trader, partnership or business
(i.e. 3RD party)
 Authority itself
S. 43 – Commercial Interests

Prejudice to commercial interests is:

Damage to business reputation or confidence
in it
 Detrimental impact on commercial revenue
 Weakening of competitive position
 Existing at the time of request
 But NOT solely assertion of prejudice
S. 43 – Commercial Interests

3rd Party information factors:





Terms upon which information given/received
Expectations of 3rd party
Relationship between 3rd party and authority
Prejudice must be demonstrable
Objection of 3rd party to release
S. 43 – Commercial Interests

Examples of exempt information:







Research & plans for new product
Manufacturing cost information
Sales forecasts
Plans – Marketing, Strategic business
Relating to preparation of competitive bid
Viability of company
Information supporting application for license
S. 43 – Commercial Interests

Public interest test factors:

Extent of prejudice / value of trade secret
 Existing public interest in disclosure of commercial
information
 Effect on future provision of information to authority &
therefore ability to fulfil role
 Effect on bargaining position during contractual
negotiations
 Effect on ability of individual to conduct commercial
transactions with authority
 Timing of commercial sensitivity
Exercise
Qualified Exemptions – what exemption,
issues to consider
 Sheet with possible requests
 Discussion & dialogue

Disclosure of Information

Format/manner



Summary or document?



Choice of applicant
Reasonableness
Information to be released, not documents
Excessive documents not in spirit of FOIA
Refusal of disclosure

Whole or part?


Redaction – Print / electronic format
Obligations / Protocol


Inform applicant of reason for non-disclosure
Availability of appeal/complaint mechanism
Complaints






Mandatory under Act
Internal review at first instance
Proposed 2 stage internal UEA process
Applicant has right to complaint to
Information Commissioner Office (s. 50)
ICO has power to request UEA information
and issue notices to UEA
If UEA doesn’t comply with notice, high court
proceedings for contempt possible
FOIA at UEA Implementation
FOIA Contact Training
15 December 2004