Introduction to Freedom of Information legislation

Publisher Summary

This chapter provides an introduction to Freedom of Information (FOI) legislation. It presents a discussion on publication scheme maintenance and how this can help reduce the resource implications of managing requests once FOI comes into force and the duty to advice and assist applicants under FOI. It also explains charging policies. There is a section in the chapter on the difference between the Data Protection Act (DPA) 1988 and FOI. It reviews the issue of confidentiality and third-party contracts in addition to assessment of "public interest," a factor of some of the exemptions under FOI. To prove compliance, organizations will need some method of centralized capture of information about requests to demonstrate their performance under FOI. Under codes of practice associated with both the Acts, there are requirements to capture certain statistics and the chapter provides details on it. The way in which audit trails are approached will depend on the size and function of organization and, to some extent, the number of requests. Any system that is implemented must be feasible in terms of being able to capture the data and resource implications. There may also be benefits to organizations in capturing data about requests and monitoring and reporting trends, and if so, these requirements should be built into the system from the outset.

Background

As from 1 January 2005, Freedom of Information (FOI) legislation comes fully into force across the United Kingdom (UK). In the long term, FOI has the potential to have a profound effect on the way in which the public sector manages information, leading to more open and transparent way of working. However, in the short term it is essential organisations take the necessary measures to achieve compliance and are ready for the introduction of FOI. Sound and considered preparations will help minimise detrimental effects on existing business processes, resulting from inadequate resourcing and insufficient planning. Devising a suitable programme of activities to meet the requirements of FOI will also enable your organisation to manage any associated risks.

This short book is designed to aid some of the practical preparations required for FOI, offering an interpretation of some of the implications for your organisation. The main focus is upon being able to process requests for information once FOI comes into force although some aspects will also contribute to other compliance issues. It is important to note that reading this book will not achieve compliance for your organisation. It is intended to help you identify where non-compliance could occur, and assist you in recognising the factors that should be included in activities to address those issues in your particular organisation.

The book complements guidance and advice already available about other elements of complying with FOI such as records management (RM) and the management of publication schemes. It, therefore, does not cover RM or the development of schemes in any detail, as there is already a vast amount of useful literature and guidance published. This information is available from a variety of websites and publications, some of which are referenced throughout.

There are two Acts that are of importance in the context of this book: Freedom of Information Act 2000 (FOIA) which applies to the UK with the exception of Scotland and Freedom of Information (Scotland) Act 2002 (FOISA) which will come into force throughout Scotland. There is a substantial amount of similarity between the two Acts (and they are referred to jointly as 'FOI' or 'the Acts' throughout the book), although the differences are highlighted where necessary. Both Acts refer to codes of practice, which also place obligations on organisations (although non-statutory) and, therefore, should be taken into consideration when planning any programme of preparation. Again, these are referenced throughout the book where relevant.

Records and information management has, in many public sector organisations, lacked the dedicated skills and resources over recent years. FOI provides an ideal opportunity to re-evaluate the importance of information and the role it plays in delivering organisational objectives. The need to accurately assess information management (IM) requirements from a business perspective in conjunction with those of FOI is vital to ensure information is not managed purely to comply with FOI. This approach has the potential to adversely affect business efficiency. Improvements to information flows and overall effectiveness may offer benefits to your organisation and be a positive outcome of preparations and are therefore emphasised throughout the text.

Basic facts about the Acts

The list of organisations that fall within the scope of FOI is extensive. For confirmation about your own organisation you should check the relevant Act and also consult with the appropriate commissioner if you are unclear about your obligations. You also need to be certain about which Act you fall under; for example, UK-wide public authorities will fall under FOIA, regardless of whether or not they have offices in Scotland.

Both Acts provide a general right of access or entitlement to information held by public authorities and place two core requirements on public authorities:

 to produce and maintain a publication scheme, a document that details the classes of information that an organisation will routinely make available;

 to process requests for information held by that authority.

On an applicant submitting a request for information, authorities have 20 working days in which to respond to that request. An authority has to fulfil a number of obligations:

 in the majority of cases, to confirm whether or not the information is held (for further details see Chapter 5 as the two Acts are slightly different in this area. This is not a specific duty under FOISA);

 to provide the information if it is held by the authority unless it is subject to an exemption.

Requests do not have to mention FOI and can be made to anyone within a public sector organisation. Timing towards the 20 working-day obligation generally begins on receipt of the request and consequently it is vital that everyone in the organisation understands that any request for information from any applicant falls under FOI.

There is no requirement for an applicant to state why they have requested the information or for what purpose they intend to use it, although copyright legislation may apply to some information held by your organisation. There are also a number of factors that cannot be taken into account when deciding whether or not to release information, which include any subsequent embarrassment that may be suffered by the organisation. These factors are further discussed in Chapter 5.

The key principles of the legislation are described above, but before beginning to assess the practical implications of FOI it is important that you have a general understanding of the legislation. This book is not intended to be a legal interpretation and, therefore, you need to identify any issues your organisation may have, which this book should help you to do, and take advice where appropriate. Additionally, while specifics of the Acts are further discussed where relevant in the following chapters, the book will not necessarily give you the full overview required by your particular organisation. There are already a number of sources that provide good summaries of FOI which will provide you with alternative discussions about the Acts. Some of these are referenced throughout this book.

Preparation for FOI is absolutely essential to ensure that your organisation benefits from changes in the way in which it manages information and is able to manage any new risks which FOI presents. A lack of preparation is likely to result in an uncontrolled and mismanaged response to FOI. Crisis management will inevitably present a number of problematic issues to your organisation, which may include non-compliance and damage to organisational reputation. Lack of management is also likely to have significant resource implications once the FOI comes into force, which could have detrimental affects on core business processes that will be very difficult to quantify and control.

How to use this book

Each chapter has been written to address a specific topic, enabling the reader to selectively choose, first, what they read and, second, in which order they deal with compliance issues. The book has been designed in this way, as organisational priorities are likely to dictate the order and priority in which compliance initiatives are dealt with, and therefore may be different across a range of organisations.

Each chapter starts by setting objectives and then has a short, descriptive section about the topic which explains why action is necessary and puts initiatives into the context of FOI. The main part of each of the chapters are the checklists that will initially enable you to gauge which initiatives are likely to be required within your organisation, and then monitor how much progress has been made.

The checklists are written as questions and you may ask why there are so many questions with very...