The new rights of access in the FOIA signal a new recognition of, and commitment to, the public interest in openness about government.
They are additional to other access rights, such as access to personal information under the Data Protection Act 2018, and access to environmental information under the EIR 2004.
The main features of the Act are:
- a general right of access to recorded information held by public authorities, regardless of the age of the record/document
- a duty on every public authority to adopt and maintain a scheme, which relates to the publication of information by the authority and is approved by the Information Commissioner
Section 46 of the Act places a duty on the Lord Chancellor to issue a Code of Practice on records management.
The Code has been published and although compliance is not obligatory, it provides guidance to all public authorities as to the practice which it would, in the opinion of the Lord Chancellor, be desirable for them to follow in connection with the discharge of their functions under the FOIA.
Additionally, the Code will be used by the Information Commissioner when deciding whether a public authority has properly dealt with a case (in the event of a complaint).
General right of access
The Act confers two rights on the general public:
- the right to be informed whether a public body holds certain information
- the right to have that information communicated to it
However, the Act recognises that there can be valid grounds for withholding information and provides a number of exemptions from the right to know, some of which are absolute exemptions and some of which are subject to a public interest test.
As regards exemptions subject to the public interest test, organisations must weigh up whether the public interest in maintaining the exemption in question outweighs the public interest in disclosure.
The request for information must:
- be in writing
- state the name of the applicant and an address for correspondence
- describe the information requested
The applicant can request that information be communicated by:
- a copy in permanent form (or other form acceptable to them, for example on CD-ROM or audio tape)
- examination of records
- a summary or digest of the information held
Organisations may charge a fee for reasonably incurred costs to:
- inform the applicant whether it holds the information
- communicate the information to the applicant
However, they are not obliged to charge a fee, and the Ministry of Justice suggests that where the costs incurred are minimal, the fee should be waived.
If a fee is required, this should be notified to the applicant and paid within three months of receipt of the notice, otherwise the public authority need not comply with the request.
A fee may be charged to cover:
- the cost of putting the information into the applicant’s requested format, for example CD, or audio tape
- photocopying and printing costs (set at no more than 10 pence per page)
- postage or other transmission costs
In calculating the cost of the above, organisations are not permitted to take account of employee time required to carry out the work.
Additionally, organisations may not charge for putting the information into another format if they are already under a duty to make information accessible under other legislation, for example the Disability Discrimination Act 1995.
There may be a few cases where the costs of meeting a request would exceed the appropriate limit, set at £450 (for central government the limit is £600).
If this is the case, organisations are allowed to refuse to answer the request.
Public authorities must reply promptly to the request and no later than the 20th working day following receipt of the request or further information and/or the appropriate fee.
This period can be altered by the Secretary of State (up to the 60th working day).
A public authority need not comply with vexatious requests and repeated requests for information already supplied, unless a reasonable period has elapsed between requests.
A publication scheme should be a complete guide to the information routinely published by an organisation.
It is a description of the information about the organisation which is made publicly available and which should act as a route map so that the public can easily find information about the organisation.
The publication scheme must specify:
- the classes of information published, or intended to be published
- the manner in which publication is, or is intended to be made
- whether the information is available free of charge or whether payment is required
Records management considerations
The organisation should carry out an information audit to determine what records it holds, the locations of the records and whether they need to be kept – this should lead to a review of the organisation’s retention schedules and provide information for its publication scheme.
As with Data Protection Act subject access requests, efficient and knowledgeable records management staff and effective records management procedures are crucial to compliance with this Act.
There is a duty imposed on organisations to supply information in a timely fashion – currently within 20 working days.
To facilitate this obligation to provide information within these time limits the organisation must ensure that all employees are aware of how an FOIA application should be progressed and of the requirement to respond to requests quickly.
Organisations should consider maintaining a log of requests with the view to making frequently requested information available through its publication scheme.