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FOI and journalists

A version of this article by Maurice Frankel appeared in Press Gazette on 17 December 2004

After a four year delay to allow public authorities to prepare, the Freedom of Information Act finally comes into force on January 1st. It should provide journalists with a valuable tool for looking behind the gloss and spin at the actual documents in authorities’ files. Some authorities accept that they will have to adopt a more open stance and are likely to respond positively to press requests for information. Others will carry on as before, until forced to do otherwise.

FOI is not for fast-breaking stories. You’re more likely to wait weeks than hours for information. But if you’re dealing with an issue that will still be news in a month’s time or gradually putting a big story together the Act should be just what you need.

Some 100,000 public authorities are covered by the UK Freedom of Information Act. Government departments and agencies, local councils, NHS bodies, the police, armed forces, schools and universities, regulators, quangos, advisory bodies, publicly owned companies, the BBC and Channel 4 (except for journalistic and artistic materials) and even Parliament are all covered, though the courts and security services are excluded. Private contractors providing services on behalf of an authority can be brought under the Act in their own right. Future candidates might include Group 4 in relation to its prison contracts, Capita’s running of the Criminal Records Bureau and PFI contractors. While Welsh and Northern Irish authorities are covered by the UK legislation, authorities in Scotland are subject to a separate, slightly tougher FOI Act, which comes into force at the same time.

The acts apply to information of any age, effectively abolishing the ’30 year rule’. Your chances of getting old government files depend on whether the contents are exempt at the time of your request, not on how long they’ve been sitting in the National Archives.

There’s no special trick to making a request. Apply in writing or by fax or email to the authority concerned describing the information you want. It’s a good idea to say you’re applying under the Act, but strictly speaking you don’t need to. Any written request is automatically valid. You can ask to be sent photocopies of originals, have material emailed or ask to inspect records in person – the authority is required to comply with your preference if practicable. Photocopies may give you a better feel for how much information has been withheld than a print out with the gaps closed up.

Send your request to the authority’s FOI officer – the larger authorities will have one with contact details on their web site. You can also send it to the press officer or the official handling the issue. As long as your name and address is on the letter, that’s the end of the formalities.

Describe the information you want as specifically as possible. So long as the cost of locating and extracting the information held by central government doesn’t exceed £600, the equivalent of three and a half days work, access will be free. You will only pay for photocopying, computer printouts and postage. The limit for other authorities is £450 or two and a half days work. If these costs are exceeded the authority can refuse to provide the information or ask for the full amount. So “give me everything you have on the issue” is unlikely to work unless you’re dealing with a very small file. With a little thought, you should be able to make targetted requests within these limits. If you have trouble working out what kind of information the authority is likely to hold, ask it. Authorities are required to provide reasonable advice and assistance to requesters.

The authority should reply “promptly” but has up to 20 working days to provide the information or justify a refusal. This can be extended for an unspecified “reasonable” period where decisions are being made under the UK Act’s public interest test (this delay is not available under the Scottish Act) but you should be told how long the authority expects to take. Complain if the delay seems excessive. An extra 10 working days are allowed for closed files held by the National Archives, with longer extensions for information held overseas, by armed forces on active duty or by schools during vacation.

Only a few of the Act’s exemptions provide unequivocal grounds for refusing information. There’s no right to copies of court documents, information about the security services, information subject to Parliamentary privilege or information whose disclosure is prohibited by other laws. Personal data about individuals can be withheld where disclosure would breach the Data Protection Act, but you should challenge any attempt to cite privacy as a reason for concealing the identity of officials acting in an official capacity.

Other exemptions require the authority to show that disclosure would prejudice a specific interest (or in Scotland cause “substantial prejudice”) and/or are subject to a public interest test. Information whose disclosure would be likely to prejudice defence, international relations, law enforcement, regulatory functions, commercial interests, the economy, the frankness of advice, the ‘effective conduct of public affairs’ is exempt – but in each case may have to be disclosed if the public interest in disclosure is greater than, or equal to, the public interest in confidentiality.

The public interest test also applies to exemptions for trade secrets or an authority’s legal advice. Don’t expect any insight into current litigation, but legal advice on the implications of a new judgement or EU directive may be a different matter.

Information obtained during inquiries by the police or prosecuting authorities is covered by a wide exemption, but subject to the public interest test. If disclosure would cause no harm or would clearly be beneficial, the decision may go your way. Information relating to the formulation of government policy is also exempt but the public interest test should require the disclosure of factual information and, depending on the circumstances and age of the material, may sometimes permit access to minutes of meetings, analyses or conceivably even advice.

Public interest arguments might include the need for properly informed debate, exposing wrongdoing, protecting the public from danger, accounting for public funds, demonstrating that standards are being observed, that authorities are properly discharging their responsibilities, ensuring that people are dealt with fairly and the public is not misled.

If information is withheld, the authority should tell you which exemption it has relied on, why it thinks the public interest favours confidentiality and how to challenge the decision. The first step should be to complain under the authority’s own complaints procedure, when a more senior official with greater authority to release information is likely to be involved. Strictly speaking, it’s the authority’s job to show why information should not be disclosed, not yours to prove that it can. But if you feel the authority may have an exaggerated view of the likely harm from disclosure or has failed to recognise the public interest in openness you should point that out. If you’re still unhappy after the authority’s review, you’re free to complain to the UK or Scottish Information Commissioner, who have the power to compel disclosure.

If you want information about the environment requests will be dealt with under separate Environmental Information Regulations, which also come into force on January 1. These are surprisingly wide ranging. As well as information about pollution, energy, noise and radiation they include GMOs, air and water borne disease agents, food contamination, planning, road building and transport schemes. The 20 working day time limit can be extended for complex requests but only to a maximum of 40 working days. Utilities and public authority contractors with environmental responsibilities are covered. The exemptions are fewer, all are subject to a public interest test and there is no upper cost limit for requests. There are separate sets of regulations for the UK and Scotland, enforced by the two Information Commissioners.

But its at this point that ministers could pull the plug. Both FOI laws and EIRs give ministers the power of veto if the Information Commissioners order them to disclose information on public interest grounds. Given the central role of the public interest test, that is a formidable power, though it could be judicially reviewed. The UK Commissioner has already said he will make a special report to Parliament each time the veto is used. Whether it is actually used in practice will tell us a great deal abut how seriously ministers take their FOI commitment.

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