Freedom of Information
Act 2000 - A summary
The purpose of this summary is to assist you in exercising your
rights, by highlighting some of the areas of the Act which are of
particular relevance. Please note that although every effort is
made to ensure that the information provided is correct the City of
London does not take responsibility for any inaccuracies.
The Act
The Freedom of Information Act 2000 became
law on 30 November 2000, and comes into full effect on 1 January
2000. It is fully retrospective, which means that it applies to
all information held by the public authorities which are subject
to the Act, regardless of when the information was recorded.
The purposes of the Act are summarised in the
Act’s Explanatory Notes. These state that the
Act
- provides a right of access to recorded information held by
public authorities
- creates exemptions from the duty to disclose information
- establishes the arrangements for enforcement and
appeal
Information Commissioner
The Information Commissioner is responsible for
ensuring compliance by public authorities with the Data Protection
Act 1998 and the Freedom of Information Act 2000. This may involve
monitoring, issuing guidance or taking formal steps to enforce
compliance with the acts. The Information Commissioner is a Crown
appointment, reporting directly to Parliament.
Information Tribunal
Where the Information Commissioner makes a formal decision about
an alleged failure to comply with the Data Protection Act 1998 or
the Freedom of Information Act 2000, with which any of the parties
concerned is dissatisfied, appeal can be made to the Information
Tribunal. The functions and operation of the Information Tribunal
are described in the acts. The chairman is appointed by the Lord
Chancellor.
General right of access to information
The key feature of the Freedom of Information Act 2000 is that,
from 1 January 2005, it provides a general right of access to
information held by those public authorities which fall within the
scope of the Act.
Information held by a public authority is information
- which is held by the authority (except for information it holds
on behalf of another person)
- and information held by another person on behalf of the
authority
In principle, subject to exemptions to disclosure, the right of
access exists from the moment the information exists.
This right of access comes into effect in two stages. The first
stage required the production of a Publication Scheme by each
public authority by June 2004, describing the information which
they routinely make public.
In the second stage, the Freedom of Information Act provides a
general right of access to all information held by public
authorities which are subject to the Act, with effect from 1
January 2005.
New approach to disclosure
Subject to exemptions to disclosure, the right of access to
information exists from the moment the information is recorded.
This is a new approach to access to information held by public
authorities, creating a presumption of openness rather than of
closure.
Information or records?
It is important to note that the Freedom of Information Act 2000
refers to information, rather than to records, even though it is
also concerned with standards of record keeping for assisting
access to information. The emphasis on information means that it is
not a question of whether individual records (in any media) are
open or closed, but the extent to which the information contained
within it is open or closed. In many cases, parts of the
information may be exempt from disclosure and parts may not. The
non-exempt information must be made available.
Publication schemes
Purpose of publication schemes
Under the Act, each public authority has had to produce a
Publication Scheme, setting out
- what classes of information the authority will make available
as a matter of course
- how and when it will do so
- and what costs will be charged for provision of the
information, if any
A Publication Scheme is in effect a catalogue of information,
rather than the information itself. ‘Publication’ does not just
mean ‘to publish’ in the traditional sense that a book is said to
be published. It also means information available by any means -
from copies made available on the Internet site of a public
authority or in photocopied form, to the possibility of viewing
original records in an archive office of a public authority.
Exempt information
Because the information listed in a Publication Scheme is
already published - ie made available to you by other means - the
information is exempt from the usual access requirements under the
Freedom of Information Act. This includes exemption from the
obligation to respond to a request for information under the Act,
and from the government’s Fees Regulations.
Format and amendments
Public authorities are allowed to publish the schemes in such
manner as they think fit. But the schemes have to be approved by
the Information Commissioner. It is the duty of public authorities
to review their publication schemes from time to time. No time
period is laid down for this review. Any alteration in the
categories of classes of information listed in a Scheme has to be
approved by the Information Commissioner.
Request for information
The term ‘request for information’ is a commonly used one in the
Freedom of Information Act 2000. It refers to the process of
requesting information under the Act. The right to request
information came into force on 1 January 2005.
A request for information is a request which is:
- made legibly in writing (this includes by electronic
means)
- states the name of the applicant and an address for
correspondence
- and describes the information requested.
The Act states that:
Any person making a request for information to a public
authority is entitled - (a) to be informed in writing by the public
authority whether it holds information of the description specified
in the request, and (b) if that is the case, to have that
information communicated to him.
This means that from 1 January 2005 every written enquiry
directed to public authorities, by anyone, must be considered in
the first instance within the context of the Act to see whether it
falls within an exemption under the Act. For example, information
which is ‘Personal Data’ under the Data Protection Act 1998 is an
absolute exemption under the Freedom of Information Act when access
to the data is requested by the person to whom the data relates.
Therefore, in this situation, the request remains subject to the
Data Protection Act.
The Act sets out exemptions to disclosure from the right of
access, and also some other grounds which concern refusal of access
on administrative grounds. There may also be a claim that the duty
to confirm or deny the existence of information is not required.
When refusing access to information, a notice of refusal must be
given to the applicant.
Duty to confirm or deny the existence of information
The Freedom of Information Act 2000 states that
Any person making a request for information to a public
authority is entitled - (a) to be informed in writing by the public
authority whether it holds information of the description specified
in the request….
This is called by the Act the ‘duty to confirm or deny’.
A public authority which communicates to the applicant
information which has been requested is taken to have complied with
the duty to confirm or deny the existence of the information.
Exempt information is not just exempt from disclosure. It is
also exempt from the duty to confirm or deny the existence of
information. Some exemptions include an absolute exemption from
this duty. Under other exemptions the prejudice test and/or the
public interest test must be applied.
Means of communicating the information
When a request for information is made, public authorities are
expected, so far as is reasonable, to provide the information in
the way that the applicant has requested, if it is by “one or more”
of the following means: permanent form (eg paper); the opportunity
to inspect the records containing the information; or being
provided with a summary of the information.
In determining what is reasonable, the costs of providing the
information in the manner requested may be taken into account.
Where an authority decides a request for a particular way of
communicating is not reasonable, it must notify the applicant of
its reasons.
Response times
The following are the required response times to a request for
information.
Information to which an exemption does not apply
Where there are no exemptions to disclosure, a public authority
must provide the information no later than 20 working days after
the day a request for information is received. The exceptions to
this relate purely to certain administrative matters.
Information subject to absolute exemptions
Where there apply to the information requested exemptions to
disclosure which are absolute exemptions (ie the prejudice test and
the public interest test do not apply), a public authority must
notify the applicant of this not later than 20 working days after
the day a Request for Information is received (which day need not
be a working day).
Information subject to qualified exemptions
A qualified exemption is one of the exemptions to disclosure to
which a prejudice test and/or the public interest test applies. If
the public interest test is being considered in relation to an
exemption to the duty to confirm or deny the existence of
information, and to disclosure of the information, a public
authority should still attempt to make a decision and (if
appropriate) provide the information within 20 working days. But if
it cannot do so, it can comply within the time limit which is
reasonable in the circumstances. However, the applicant must still
be informed by a notice, within 20 working days, that an exemption
applies, that the public interest test is being applied, and of the
estimated date by which it is expected a decision will be made.
Fees
Fees in relation to requests for information
It is not obligatory to charge fees. If they are charged they
must not exceed those stated in the Government Fees
Regulations (issued under Statutory Instrument 2004, No 3244).
Fees in relation to information provided through a publication
scheme
It should be noted that charging for information made available
through publication schemes is exempt from the fees regulations,
and that authorities must determine for themselves the extent of
their power to charge for publications.
Notice of refusal
The Act sets out exemptions to disclosure (including exemptions
to the duty to confirm or deny the existence of information), and
also some other grounds for refusal of access on administrative
grounds.
Whatever the reason for refusing to confirm or deny the
existence of information, or for refusing to disclose the
information itself, the public authority must normally issue a
notice to the applicant within the statutory response time of 20
working days, unless certain conditions apply. The notice must
- state the fact of refusal
- specify the exemption in question
- and state (if that would not otherwise be apparent) why the
exemption applies.
Refusal of access on administrative grounds
Apart from the applicability of specific exemptions to
disclosure because of the information itself, the freedom of
information act 2000 allows for a request for information to be
refused on other grounds which are administrative, as follows.
Request for information is insufficiently specific
More information is reasonably required in order to identify and
locate the information requested, and the applicant has been
informed of this.
Fees have not been paid
When a request for information has been received, a public
authority is permitted to issue a ‘Fees Notice’ stating a specified
amount to be charged for responding to the request. When the fees
notice has been issued, the 20 working day response time stops
until the fee is paid. When the fee is paid, the residue of the 20
days is the amount of time left within which to respond. If the fee
is not paid within 3 months, the request is considered to have
lapsed.
Appropriate limit of chargeable costs is exceeded
Public authorities are not obliged to comply with a request for
information if the authority estimates that the cost of complying
would exceed the amounts it is allowed to charge. The public
authority should, though, consider giving an indication of what
information could be provided within the costs ceiling.
Public authorities still have, subject to exemptions to
disclosure, a duty to confirm or deny the existence of information
which has been requested, unless the estimated cost of complying
with this alone would exceed the amount chargeable.
Requests for information are vexatious or repeated
Where a public authority has previously complied with a request
for information from someone, it is not obliged to comply with a
subsequent identical or substantially similar request from that
person unless a reasonable interval has elapsed.
Historical record
The Act states that a record becomes a ‘historical record’ at
the end of 30 years beginning with the calendar year following that
in which it was created. The Act also provides that certain
exemptions under the Act will not apply to historical records. So,
in these cases, if an exemption to disclosure of information were
to apply up to the end of the 30 years, it could no longer apply
after 30 years.
In addition, the Act provides that, with regard to certain other
exemptions to disclosure, if the exemptions are found to apply, the
information can be closed for even longer than 30 years (ie 60 or
100 years) before the information has to be disclosed.
Under some exemptions, the information can be closed for as long
as certain exemptions are found to apply.
Nevertheless, the important point is that, from 1 January 2005,
information is immediately open unless an exemption applies. The
general application of a closure period of 30 years (or more) to
information is no longer possible. Information can only be closed
if an exemption applies and it can only continue to be closed as
long as the Freedom of Information Act permits the application of
the exemption.
Prejudice test
Some of the exemptions to disclosure under the Freedom of
Information Act 2000 are subject to a ‘Prejudice Test’. This is an
examination of whether there is a substantial expectation that harm
would be likely to result from disclosure of information. The
‘harm’ is that which is likely to occur to the particular interest
that the exemption is aimed at protecting.
As a public authority cannot restrict the use that is made of
the information disclosed under the Act, the harm that is
calculated is that resulting from an unrestricted disclosure and
not just from disclosure to the applicant.
Public interest test
Of the 23 exemptions to disclosure under the Freedom of
Information Act 2000, 16 are subject to a Public Interest Test.
The ‘Public Interest Test’ is an examination of whether the
public interest in information being disclosed may outweigh the
public interest in an exemption to disclosure being maintained. The
‘public interest’ does not refer to something that is of interest
to the public, rather it signifies something that is in the
interest of the public, that is, for the common welfare.
The competing interests to be considered are the public interest
favouring disclosure against the public (rather than private)
interest favouring the withholding of information. There could be a
private interest in withholding information which may reveal
incompetence on the part of, or corruption within, a public
authority or which would simply cause embarrassment to the
authority. However, the public interest will favour accountability
and good administration. It is this interest that must be weighed
against the public interest in not disclosing the information.
Where the balance between disclosure and withholding the
information is seen as equal when applying the Public Interest
Test, the information must be released.
The ‘Public Interest’ is not defined in the Act, and so will
probably be more closely determined by the decisions of the
Information Commissioner, the Information Tribunal, and the courts.
The Information Commissioner’s
FOI Awareness Guidance No 3 - The Public
Interest Test should be consulted.
The Information Commissioner has indicated the following public
interest factors that would encourage the disclosure of
information
- Furthering the understanding of, and participation in, the
public debate of issues of the day
- Promoting accountability and transparency by public authorities
for decisions taken by them
- Promoting accountability and transparency in the spending of
public money.
- Allowing individuals to understand decisions made by public
authorities affecting their lives and, in some cases, assisting
individuals in challenging those decisions.
- Bringing to light information affecting public
safety.
A Public Interest Test was part of the operation of the Open
Government Code of Practice on Access to Government Information
(1994). The Open Government Code is superseded by the Freedom of
Information Act on 1 January 2005. Although the Code is not
statutory and applies to a much smaller number of public
authorities, the Public Interest Test which is applied under the
Code has been, according to the Information Commissioner, identical
to that required under the Freedom of Information Act. Therefore,
summaries of cases considered under the Code can provide guidance,
and these can be found on the website of the
Parliamentary and Health Service Ombudsman. The
‘Public Interest Test’ should not be confused with the ‘Prejudice
Test’.
Exemptions to disclosure
In addition to the possibility of refusal of access on
administrative grounds, there are exemptions to disclosure of
information because of the subject matter of the information which
is requested. These are sometimes referred to as the ‘information
exemptions’, and they form the main body of exemptions under the
Freedom of Information Act 2000.
It is useful to divide the 23 exemptions into the following four
categories:
(i) Absolute exemptions
(1) The information is accessible to an applicant by other means
(for example, it is listed in a Publication Scheme).
(2) Information supplied by, or relating to bodies dealing with
security matters.
(3) Court records.
(4) Information subject to parliamentary privilege.
(5) Information provided in confidence.
(6) Where there is a prohibition on disclosure by other
legislation.
These exemptions are absolutely exempt from the access
provisions of the Freedom of Information Act 2000. This includes
exemption from
- the duty to confirm or deny the existence of information
- the requirement to disclose the information requested
- the public interest test. the prejudice test
(ii) Partly absolute exemptions
There are 2 ‘partly absolute’ exemptions
(1 ) Where disclosure would prejudice the effective conduct of
public affairs. The information is subject to the prejudice test
and the public interest test if the information is held by a public
authority other than central government.
(2)
(a) Information which constitutes ‘personal data’ under the Data
Protection Act 1998, and is requested by the ‘data subject’ (ie
subject of the data), or on their behalf, is absolutely exempt and
must instead be dealt with under the Data Protection Act
1998.
(b) Where requests are made for ‘personal data’ by someone other
than the subject of the data, the exemption is absolute if
disclosure would breach the Data Protection principles. If they
would not be breached, but a notice from the data subject has
indicated that disclosure to the other person would cause him/her
(the data subject) damage or distress, or an exemption applies
which would prevent access by the data subject under the Data
Protection Act, the public interest test then applies. If the
public interest test finds in favour of disclosure, the information
should be disclosed, unless another exemption under the Freedom of
Information Act applies.
(iii) Qualified exemptions - subject to the public interest
test
This relates to the following classes of information
(1) Information intended for future publication.
(2) Information relating to national security.
(3) Investigations and proceedings conducted by public authorities
in relation to possible civil actions and criminal prosecutions in
the courts.
(4) Information held by a government department concerned with the
formulation of government policy.
(5) Information relating to the conferring of honours by the Crown
or to any communications with the Royal Family or Household.
(6) Information the disclosure of which may endanger anyone’s
health, or mental health, or safety.
(7) Environmental information. (Environmental information will be
exempt if it falls under the proposed new Environmental Information
Regulations).
(8) Legal professional privilege.
(iv) Qualified exemptions - subject to the prejudice test and
public interest test
This relates to information the disclosure of which would
prejudice
(1) National defence.
(2) International relations.
(3) Relations between the central government executives of the
countries forming the United Kingdom.
(4) The economy.
(5) Law enforcement.
(6) Audit functions of other public authorities.
(7) Commercial interests.
Practice recommendations to public authorities
If it appears to the Information Commissioner that the practice
of a public authority in relation to the exercise of its functions
under the Freedom of Information Act 2000 does not conform with
that proposed in the codes of practice required under the Act, the
Commissioner may issue a ‘practice recommendation’ specifying steps
which ought to be taken to ensure conformity.
Complaint procedures
The following are the steps which can be taken by a person
complaining (the ‘complainant’) about the nature of a public
authority’s compliance with the Freedom of Information Act
2000.
Step 1: Complaints procedures of public authorities
Public authorities must have a fair and impartial in-house
procedure for dealing with complaints and reviewing decisions in
relation to the Act. In the first instance, the complainant must
make their complaint, in writing, using this procedure.
Step 2: Information Commissioner
If complainants consider that the in-house complaints procedures
of a public authority have not brought the appropriate decision,
and they wish to take their complaints further, they must complain
to the Information Commissioner. The Commissioner has
to make a decision on a complaint about a public authority
unless
- the public authority’s own complaints procedures has not been
exhausted, or
- there has been too long a delay in the complaint being
made
- or the complaint is vexatious or frivolous
Step 3: Information Tribunal
If complainants consider that the Information Commissioner has
not come to an appropriate decision about their complaints, and
they wish to take their complaints further, they must apply to the
Information Tribunal.
Step 4: High Court
If complainants consider that the Information Tribunal has not
come to an appropriate decision about their complaints, they can
apply to the High Court. However, they can only apply to the High
Court on a point of law rather than the facts of the case.
Enforcement Procedures
Information notice
In order to make decisions about complaints against authorities,
the Information Commissioner has powers to obtain
information - including unrecorded information - from an authority
by issuing an ‘information notice’. An authority is not required to
supply the Commissioner with information that was passed between a
professional legal adviser and the authority on matters relating to
the Act.
Decision notice
The Information Commissioner, on weighing up the matter, may
inform the complainant that he does not wish to make a decision
against the public authority, and of his grounds for not doing so.
In this case, the complainant can appeal to the Information
Tribunal.
On the other hand the Commissioner, on weighing up the matter,
may find in favour of the complainant and issue a ‘decision notice’
specifying the steps which must be taken by the public authority to
comply.
Enforcement notice
The Information Commissioner may serve an ‘enforcement notice’
on a public authority if he is satisfied that the authority has
failed to comply with the requirements of the access to information
provisions (ie Part I) of the Act. It would require the authority
to comply within a specified time, and specify the steps to be
taken in order to comply.
Powers of entry and inspection
If a judge is satisfied by information supplied by the
Information Commissioner that there are reasonable grounds for
suspecting that a public authority has failed or is failing to
comply with
- any of the requirements of the Access to Information provisions
(ie Part I) of the Act, or
- so much of a Decision Notice as requires steps to be taken,
or
- an Information Notice or an Enforcement Notice
then the judge may grant the Commissioner a warrant giving
powers to
- enter and search premises
- inspect and seize documents
- inspect equipment in which information may be stored.
Contempt of Court
If a public authority fails to comply with an information
notice, a decision notice, or an enforcement notice, the
Information Commissioner may certify this in writing to the High
Court. After enquiring into the matter, hearing witnesses and any
statement offered in defence, the High Court may deal with the
authority as if it had committed a contempt of court.
Appeal procedures
Public authorities and complainants have a right of appeal to
the Information Tribunal against a decision notice served by the
Information Commissioner.
Public authorities may also appeal to the Information Tribunal
against an information notice or an enforcement notice served by
the Information Commissioner.
Appeal against a decision by the Information Tribunal can be
made to the High Court by any party, but only on a point of
law.
Civil proceedings
Unlike under the Data Protection Act 1998, the Freedom of
Information Act 2000 does not confer any right of civil action in
the courts by a complainant against a public authority in respect
of any failure to comply with the Act. Appeal against a decision by
the Information Tribunal can be made to the High Court by any
party, but only on a point of law, not on the facts of the
case.
Freedom of Information -
useful external links
Information Commissioner’s Office (ICO)
ICO home page
Freedom of Information
Compliance with the Data Protection Act 1998, The Privacy and
Electronic Communications (EC Directive) Regulations 2003, and the
Freedom of Information Act 2000, is monitored by the Information
Commissioner, a Crown appointment, reporting directly to
Parliament.
On the Information Commissioner’s website can be found
The Freedom of Information Act 2000: An
Introduction, which provides the Information Commissioner’s
general guidance on the Act.
Topics are also covered in a more specific way, for example in
the Information Commissioner’s
FOI Awareness Guidance series.
Department for Constitutional Affairs (DCA)
DCA home
page
DCA: Freedom of Information
The Department for Constitutional Affairs is the government
department which during 2003 superseded the Lord Chancellor’s
Department. The department is the government department responsible
for upholding justice, rights and democracy. This includes keeping
the operation of the Freedom of Information Act 2000 and the Data
Protection Act 1998 under review. The Department’s website contains
guidance on issues in relation to the acts.
Codes of practice
There are two codes of practice which were required by the
Freedom of Information Act to be produced by the Lord Chancellor’s
Department (which was superseded in 2003 by the Department for
Constitutional Affairs), and to be revised as appropriate from time
to time. These were produced in November 2002, and no revisions
have yet taken place. The codes are
1. Secretary of State for Constitutional Affairs' Code
of Practice on the Discharge of Public Authorities Functions under
Part 1 of the Freedom of Information Act 2000 issued under Section
45 of the Act
2. Lord Chancellor’s Code of Practice on the
Management of Records issued under section 46 of the Freedom of
Information Act 2000
Her Majesty’s Stationery Office (HMSO)
HMSO home
page
Search page (this is useful for finding
copies of Acts and Statutory Instruments)
The HMSO provides online viewing of Acts, Statutory Instruments,
Explanatory Notes (to legislation), etc.
Campaign for Freedom of Information (CFI)
CFI home
page
The Campaign for Freedom of Information campaigns against
unnecessary official secrecy and for freedom of information. It
monitors existing access rights and provides practical guides to
help people use them.
The Constitution Unit, University College London (UCL)
UCL home page
The Constitution Unit is a UK independent research body on
constitutional change. The Unit is based in the School of Policy at
University College London and conducts a programme of research,
training, consultancy and advice. It has developed a close interest
in Data Protection and Freedom of Information, and the
Constitution Unit's website and newsletter are
useful sources of information on these subjects.