A version of this article by the Campaign’s director, Maurice Frankel, appeared in The Guardian on 14 December 2004
On January 1 the long-awaited Freedom of Information Act finally comes into force. The Act gives the public important new rights to the information held by public authorities. Worried about possible changes to your local school or hospital? The Act should allow you to see the evidence for them. Want to know whether the police are doing enough about burglaries? Use the legislation to probe their response times and clear-up rates. Unhappy about a regulatory body that never seems to do anything when people complain? Ask for their internal guidance on handling complaints and see their staff are doing what they’re supposed to do.
The FOI Act is only part of the new openness package. Environmental Information Regulations (EIRs) which implement a new EU directive come into force at the same time. These provide a more powerful right to information about pollution, conservation, the natural environment, land use, road building, genetically modified organisms, air and water-borne diseases, food contamination and many other issues. The regulations include the utilities and private contractors acting on behalf of a public authority.
Amendments to the Data Protection Act also come into force on January 1, improving your rights to see personal data held about yourself by public authorities, though not the private sector. You can already see computerised personal data and your own medical, social work, housing and children’s school records. But other records are only available if held in a structured form that allows specific information to be located easily. That restriction is now removed, allowing you to see “unstructured” information too.
Some 100,000 public authorities are subject to the UK Act which covers government departments, local authorities, NHS bodies (including individual GPs, pharmacists, dentists and opticians), schools, colleges and universities, the police, the armed forces, museums, quangos, regulators, advisory bodies, publicly owned companies, the devolved assemblies and parliament itself – but not the security and intelligence services or the courts. The UK At applies to UK government departments and English, Welsh and Northern Ireland public authorities. A separate FOI Act and set of EIRs apply to the Scottish executive and Scottish public authorities and also kick in on January 1.
Using the laws couldn’t be simpler. Send a letter, email or fax to the authority describing the information you want. If you want photocopies, or would prefer to have the information emailed or to inspect it in person, say so. The authority must comply with your preference where practicable.
Send your request to the FOI officer, whose contact details should be on the authority’s web site, or directly to the official who handles the matter if you know who that is. You don’t even have to mention the FOI Act or EIRs, though it’s safer to do so. The authority has to treat any written request for information under the right legislation, whether or not you ask it to. If you’re after environmental information even a telephone request will count, though putting it in writing is still a good idea.
You can ask for any recorded information held by the authority, regardless of when it was recorded. Old government files, which until now have been secret for 30 years will have to be disclosed, subject to the Act’s exemptions.
Make your request as specific as possible. Work out as clearly as you can what it is you want or think might exist. Don’t be afraid to phone the authority and ask what kind of materials it holds. Both the Act and the EIRs require authorities to provide reasonable advice and assistance to requesters.
The authority must reply to your request “promptly” and in any case within 20 working days. Under the UK Act, this can be extended for a “reasonable” period where decisions are taken under the Act’s public interest test. Extensions are also allowed for requests received by schools during vacations, for closed files held by the National Archives, or for information held overseas or which has to be obtained from military personnel on active service. These don’t apply to the EIRs, where the only permitted extension is for complex, large requests when up to 40 working days is allowed.
So long as you FOI request isn’t too sweeping, you won’t have to pay apart from photocopying, printing and postage costs. However, if the cost of finding and extracting the information you want exceeds a set limit, the authority doesn’t have to provide it at all. For government departments, this limit is £600, equivalent to three and half days work at a set rate of £25 an hour. For other bodies it is £450 or two and a half days work. A £600 limit also applies in Scotland, though the first £100 of all charges, including photocopying, are waived and you pay only £1.50 an hour for staff time. Crucially, the time spent deciding whether to release information can’t be included in any of these calculations. There are no cost limits under the EIRs. So if the information you want is environmental, be sure to point this out.
You won’t be able to split a large request into severall smaller ones to avoid the limit. The costs of related requests to a single authority within 60 working days of each other can be aggregated under the UK Act (though not in Scotland). This is still a generous deal compared with some countries. Ireland’s FOI legislation allows a fee of up to £500 or information that would be free under the UK Act.
The FOI Act contains plenty of exemptions. Information is exempt if its disclosure would be likely to prejudice (or in Scotland “prejudice substantially”) interests such as defence, international relations, law enforcement, commercial interests, the economy, the frankness of internal discussions or the “effective conduct of public affairs”. However, most exempt information will have to be released if the public interest in disclosure is greater than the public interest in confidentiality. The benefits of disclosure, in protecting public safety, exposing wrongdoing, preventing the public from being misled, accounting for public spending or ensuring informed debate may swing decisions in favour of openness.
Some exemptions have no “prejudice” test and disclosure depends solely on the public interest test. These include exemptions for legal advice, information obtained during investigations by the police or prosecuting authorities and information relating to the formulation of government policy. This doesn’t mean that you won’t get such information: the public interest test will still apply. Expect no access at all to court records, information about the security services or information whose disclosure is prohibited by other laws. Personal information about others won’t be released if disclosure would breach the Data Protection Act. Information whose disclosure would be a breach of confidence is exempt, but this common law principle involves a public interest test. The EIR exemptions are different and fewer – and all are subject to the public interest test. One notable feature is that emissions data cannot be withheld on commercial confidentiality grounds.
If you are refused information, the authority should tell you under which exemption and why it thinks disclosure is not in the public interest. The first step in challenging a decision is to complain to the authority itself, which should review it at a more senior level. It’s not your job to prove that the information should be disclosed. Say why you think the decision is wrong, if you can, but a simple request for it to be reconsidered will be enough.
After that you can complain to the Information Commissioner. His decisions are legally binding and authorities which ignore them could face action for contempt of court. Under the UK Act, though not Scotland’s, there is a right of appeal against the Commissioner’s decisions to an Information Tribunal. All decisions can be challenged in court on a point of law.
Unfortunately, that’s not the end of the story. The legislation’s most contentious feature is a ministerial veto, allowing cabinet ministers to override the Commissioner if he orders a government department to release information on public interest grounds. Scottish ministers have a slightly more limited power of veto over Scotland’s Commissioner. The veto’s use can’t be kept secret and could be judicially reviewed. But no-one is putting any bets on ministers being able to resist its use where politically damaging information is at stake.
Don’t let that put you off asking and don’t give up after an initial refusal. Public authorities are likely to be forced into much greater openness by the Act. No-one yet knows where the line will be drawn – it’s up to you to find out.