Freedom of Information Act 2000: Strategy and policy (Snr mgt)
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Audience Principals and Deputy Principals in FE, proVice Chancellors in HE, Governors, Registrars and other senior managers responsible for legal compliance. Senior managers responsible for developing strategy, such as information strategies, IT strategies and public relations policies.
This briefing paper outlines:
- The new legislative framework for public access to information held by public authorities, including schools, colleges and universities
- The measures that should be taken to ensure compliance with the legislative framework
The Freedom of Information Act (FoIA) 2000 gives a general right of public access to all types of 'recorded' information held by public authorities, sets out exemptions from that general right, and places a number of obligations on public authorities.
The Act applies only to 'public authorities' and not to private entities. 'Public authorities' are, however, broadly defined in the Act and include schools, colleges and universities. Private entities - such as spin-off companies - that are wholly or largely owned by a 'public authority' will also be subject to the Act.
The Act is enforced by the Information Commissioner who oversees both Freedom of Information and Data Protection legislation. The Act applies only to England, Wales and Northern Ireland; there is a separate Freedom of Information Act for Scotland.
Responsibilities of Public Authorities
Public authorities have two main responsibilities under the Act:
- They must produce a 'publication scheme', which is, in essence, a guide to the information they hold that is made available to the public as a matter of routine, such as prospectuses, almanacs and websites. Each authority's publication scheme must be approved by the Information Commissioner
- They must deal with individual requests for information. The Freedom of Information Act permits individuals access to all other types of non-personal information that public authorities hold, subject to specific exemptions in the Act
It is in the interest of institutions to include as much information as possible in the publication scheme in order to reduce the number of potential individual requests.
The duty to adopt a publication scheme will come into force first. Educational institutions may submit their publication scheme for approval from October 2003, and are obliged to have done so by the end of 2003. An institution's publication scheme must be made publicly available by 29 February 2004.
The Act will be brought fully into force at the beginning of 2005, when the general right of access to information will begin and public authorities will be required to deal with individual requests.
The Publication Scheme
As public authorities, FE and HE institutions are required to adopt and maintain publication schemes, which must be approved by the Information Commissioner. Such schemes must set out:
- The classes of information the institution publishes
- The manner in which the information is published
- Details of any charges
Once approved, the institution may decide exactly how to publish its scheme, for example, on its website. In this case, the institution would also have to take into account the potential requirements of those who do not have access to the Internet, or who might require the scheme in an alternative form, such as a foreign language or in Braille. Publication schemes must be reviewed periodically, and the initial period of approval is likely to be five years.
When deciding what information should be included in its scheme, an institution must consider the general public interest in allowing access to information and the public interest in making available the reasons behind institutional decisions. Schemes may either be designed for particular bodies or may be generic. Model schemes, for groups of similar bodies such as FE and HE institutions, may also be approved by the Commissioner.
Requests for information
Any individual will be able to make a request to an institution for information. The individual does not have to be the subject of that information, or be affected by its holding or use. For example, the media are likely to use the legislation widely to obtain information for use in broadcasting or publication. If an individual is the subject of that information then the principles of the Data Protection Act to protect the data subject will take precedence over any FoIA right.
The Act gives applicants two related rights to:
- be told whether the information is held by the institution
- receive the information, where possible in the manner requested
Requests for information made under the Freedom of Information Act must be made in writing, which includes electronic communications such as fax and email. Requests for information must be dealt with promptly, and the Act sets a maximum time frame for response of 20 working days. A fee may be charged for providing the requested information.
There is no obligation to comply with 'vexatious' requests, or repeated requests, if the institution has recently responded to an identical or nearly identical request from the same person, but there is a duty to provide advice and assistance to anyone making a request.
Some information is exempt from disclosure by the Act so does not have to be provided. The 23 such exemptions relate to information held for a variety of purposes. These include national security, law enforcement, commercial interests, and data protection. In particular, information is exempt from the Act if it is accessible to the applicant by other means, so information that will be accessible under the institution's publication scheme need not be provided in response to an individual request.
Before an FE or HE institution can rely upon a specific exemption, it will usually be obliged to consider two further points:
- Some of the exemptions can be claimed only if the release of the information would damage the purpose to which the exemption relates
- Some of the exemptions also require the public authority to apply the 'public interest' test before making a final decision as to whether or not to release the information
The public interest test requires an institution to decide whether the public interest in withholding the exempt information outweighs the public interest in releasing it, by considering the circumstances of each particular case and the exemption that covers the information. The balance will lie in favour of disclosure, in that information may be withheld only if the public interest in withholding it is greater than the public interest in releasing it, for example disclosure of institutional information would harm a police investigation.
Most of the exemptions will require an institution to consider both the test of prejudice and the public interest test. However, institutions are advised to read the exemptions with care when determining whether they can be relied on to justify withholding information.
Codes of practice
The Act requires the Secretary of State to issue a code of practice that public authorities should follow when dealing with requests for information. It is currently available in draft form on the Lord Chancellor's Department website.
The Act also requires the Lord Chancellor to issue a code of practice for public authorities to follow in relation to keeping, managing and destroying their records. It is currently available in draft form on the Public Records Office website.
About this paper
The information in this paper is taken from a much longer paper on the FoIA commissioned by the JISC Legal Information Service. JISC Legal Information Service was set up in response to the concern, in FE and HE, about the increasing impact of new legislation on ICT and related areas. JISC Legal Information Service cannot give professional legal advice but aims to provide information and alert institutions to the fact that such advice may be required.
Corresponding briefing paper