freedom of information.co.uk

The Freedom of Information Act applies to all so-called ‘public authorities’, which means almost the entire public sector, from Government departments down to primary schools and GP surgeries.  The Act covers England, Wales and Northern Ireland, plus UK Government departments operating in Scotland.  Bodies under the control of the Scottish Executive are covered by separate but similar legislation.  

The FOIA represents a further step towards open government and supersedes the Code of Practice on Access to Government Information and the Code of Practice on Openness in the NHS, introduced in 1994 by the Conservative Government. Unlike the codes it replaced, the Act gives the public legal rights of access to official information.  And it makes the destruction  or alteration of records to prevent disclosure a criminal offence.

The Information Commissioner

The post of Information Commissioner was created under the FOIA and is currently occupied by Richard Thomas.  He is responsible for the Act’s enforcement and handles appeals on behalf of those whose requests for information have been refused.  Under the old codes of practice, appeals were handled by the Parliamentary Ombudsman, who had no power of enforcement and could only be accessed via an MP.

The Information Commissioner’s post commenced on 30th January 2001, replacing that of the Data Protection Commissioner, who had responsibility for the enforcement of the Data Protection Act (DPA.)   The FOIA and the DPA are closely interrelated and define our twin rights of access to information and protection of personal data. The boundary between these two rights is mostly rigidly drawn, but some areas are open to legal interpretation and will no doubt be tested in the courts. 

The FOIA significantly extends the DPA, allowing you to access a  wider range of personal data held on you by public authorities.

Under the FOIA the Lord Chancellor has issued two codes of practice – not to be confused with the earlier codes - one of which relates to the disclosure of information and the other to the management of records.  

If the Commissioner believes an authority has breached the Act, or one of the Lord Chancellor’s codes, he can issue so-called practice recommendations, which set out the corrective measures the authority should take. If you believe your information request has been dealt with incorrectly by an authority, you can apply to the Commissioner for a decision.  In response he can issue three types of notice against the authority:

• Decision notices. If he finds in favour of the applicant he can issue a decision notice, setting out the necessary steps for compliance with the Act, plus a deadline.
• Information notices.  If he needs more information about the disputed request he can issue one of these notices to demand the necessary details.
• Enforcement notices.  If the authority does not comply with the decision notice the Commissioner can issue an enforcement notice, which again must specify the action required and a deadline.  

If the authority fails to comply with any of the notices, the Commissioner can write to the High Court, which can then declare the authority in contempt of court. 

Either party can appeal against decision notices, but only the authority can appeal against information or enforcement notices. 
Appeals are considered by the Information Tribunal, which was previously known as the Data Protection Tribunal.  Subject to appeal to the courts on a point of law, or to judicial review, the tribunal’s decision is final.

Third party information

Much information held by public authorities was originally submitted by third parties such as private contractors, or special interest groups.  This information is covered by the FOIA and can therefore be released, as long as there is no breach of legal confidence, the Data Protection Act, or any other law.  There is no legal obligation on authorities to consult with third parties before releasing such information.  However, the Lord Chancellor’s Code of Practice recommends consultation if the authority is unsure whether the information should be released. Third parties have no right of veto over its release and automatic right of appeal to the Information Commissioner or Tribunal against a decision to release.

Ministerial veto

Decisions of either the Commissioner or the Tribunal may be overridden by a cabinet minister, but only if: (i) the issue is whether the disclosure should take place in the public interest; and (ii) the information is held by central government or an authority specified by order.  The veto is supposed only to be used in exceptional circumstances and the Information Commissioner has made it clear that all such decisions will be reported to Parliament for its scrutiny.