Friday 21 November 2008
Making an FOI (Freedom of Information) request
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Background
Since January 1, 2005, the Freedom of Information Act 2000 (2002 in Scotland) has given anyone the legal right to ask for and be given almost any recorded information held by around 100,000 UK public authorities.
A public authority includes local and central government and departments, the armed forces, police authorities, health authorities, schools and universities. For a full list see this page on the Department of Constitutional Affairs website.
The Act excludes access to information held by Security Service bodies, individual armed forces units, most court documents and a range of types of information which could prejudice defence, security, the economy or internationals relations for the UK. Again, more details on this DCA page.
Who can make an application?
Anyone - there are no restrictions on age, nationality or where you live but the request has to come from you as a named individual, whether or not you represent an organisation (for instance as a journalist working for a newspaper), and must include your name and the address at which you can be contacted.
How do you make an application?
First - check the informtion you want isn't already availble, for instance on the organisation's website or by simply telephoning and asking for the information. The Act has prompted the publication of more material, particularly local authority records.
A request for information under the Act must be made in writing, direct to the particular body or organisation from which you are seeking information. This can be by letter or email, but you should check that either has been received. Many authorities will have a named officer or department specifically to deal with FOI requests to which you should send your request - you need to check. A list of some of these is below.
As well as your name and address, you need to very clearly state exactly what information you are seeking. This is the most crucial bit and worth spending time drafting and planning exactly what it is you are asking for. For example "minutes of the meeting where the decision to do X was made", rather than "everything you have about X".
If you want complex information, for instance data over several years of records, you may find it more effective to break the request down into a number of separate FOI requests.
If you do not make your request specific enough, you risk having your application refused either because what you want isn't clear or because it would be too costly to provide the information. Under the Act, an authority can refuse to comply if the cost of collating the information you request would cost more than £600 (for government departments, £450 for other authorities), or the equivalent of three-and-a-half days work (two-and-a-half).
You have a right to be told whether the information you're seeking is held by that public body but not necessarily a right to be given that information if an exemption applies.
You do have to refer to the Act in your request but it will make things clearer if you do and you should say how you want the requested information to be supplied - for instance as answers to specific questions, summaries of decisions, or copies of meeting minutes, or to be allowed to inspect the record (see example letter below).
Public authorities must comply with your request promptly, and should provide the information to you within 20 working days (around a month). If they need more time, they must write to you and tell you when they will be able to answer your request, and why they need more time. If they refuse your request, they must say why.
If they respond with a refusal because of the cost of providing the information, you can offer to meet that cost - or you can look again at your request and assess whether it can be rewritten to make it more specific and less time-consuming.
The public authority can also refuse to confirm or deny the existence of the information and to provide it if an exemption applies (see below) or if your request is vexatious or similar to a previous request one you've made.
Example FOI request
Your name
Your address
Your postcode
Your email address (if applicable)
The date
Dear...
This is a request under the Freedom of Information Act 2000/Freedom of Information (Scotland) Act 2002.
Please send me the following information/information about
sample requests:
I would like the above information to be provided to me as paper copies.
I understand that under the Act, I should be entitled to a response within 20 working days of your receipt of this letter/email. I would be grateful if you could confirm in writing/by email that you have received this request. I look forward to hearing from you in the near future.
Yours sincerely/faithfully
FOI request refusals and what next
Some exemptions under the Act are absolute and cannot be challenged - these include information kept by MI5, MI6, GCHQ, Court and Tribunal records, personal information covered by Data Protection law, information provided in confidence (for instance trade secrets). There are also types of organisations exempt from the Act, including Regional Assemblies and most housing associations.
However, the majority of exemptions are qualified and can be challenged on the basis that releasing the information is in the public interest.
Where an authority refuses a request under one of more of the permitted exemptions, it must tell you the basis of its refusal and tell you how you can appeal that decision.
Appeals are made to the Information Commissioner (see below)who has set out examples of the public interest argument which include:
- Releasing the information would further the understanding and particpation in the public debate of issues of the day, for instance issues being considered by Government of the local authority.
- The information would promote transparency and accountability by public authorities for decisions made by them or for the spending of public money.
- It would enable individuals or companies to better understand decisions which directly affect them, incuding being able to better challenge those decisions.
- It would bring to light information affecting public health and safety - for instanc by releasing reports by scientists or experts in relation to accidents or disease.
For more detail on the pubic interest test, read the guidance document issued by the Information Commissioner
How to appeal
Read the basis for the refusal carefully and check it against the list of exemptions allowed. Take particular note if the reason given appears to be under one of the headings listed as subject to a public interest test - this is your right to argue your case for the information to be released in the public interest.
If exemption applies but is qualified, this means that the public authority must decide whether the public interest in using the exemption outweighs the public interest in releasing the information.
Your next step is to contact the authority again and ask for the decision to be reviewed internally. The Department of Constitutional Affairs recommends that any review is done by someone not connected with the original decision.
If they refuse, or if the review comes back with a refusal again, you can complain to the independent Information Commissioner who has the power to order the information to be disclosed to you, if he agrees that the public authority has wrongly withheld it.
This would be done through either an Enforcement Notice or Practice Recommendation.
Enforcement Notices are rare because issues are generally resolved at an earlier stage, but in 2006, the Information Commissioner issued an enforcement notice relating to information concerning the legality of the war in Iraq. The result was that a portion of information relating to the Attorney General's March 17, 2003, statement to Parliament on the legality of the war was ordered to be released, but the majority of refusals to release information were upheld.
In some cases, a notice to release information held by a central government department may be subject to veto by a cabinet minister, over-ruling the Information Commissioner's decision.
All notices issued by the Information Commissioner are subject to appeal to an independent Information Tribunal, however, you should challenge any appeal if you believe it is being used mainly as a tactic to delay publication of material the Information Commissioner has ordered to be released.
You can also use the Information Tribunal appeals process yourself to challenge a decison by the Information Commissioner that you are not happy with.
Sources
The UK Act in full: http://www.opsi.gov.uk/Acts/acts2000/20000036.htm
The Scottish (2002) FOI Act in full: http://www.opsi.gov.uk/legislation/scotland/acts2002/20020013.htm
The Department for Constitutional Affairs: http://www.foi.gov.uk
The Information Commissioner's Office: http://www.ico.gov.uk/Home/what_we_cover/freedom_of_information.aspx
McNae's Essential Law for Journalists 18th Edition (Tom Welsh, Walter Greenwwod, David Banks) NCTJ 2005
Appeals to Information Tribunal: http://www.informationtribunal.gov.uk/applyingToUs.htm