Firstly, what is Freedom of Information?
The Freedom of Information Act 2000 gives any person the right to access recorded information held by public authorities. It applies to information held by the authority at the time the request is received.
This week Leathers Prior Solicitor, Alex Saunders, hosted a talk at the Scribe Academy covering all things Freedom of Information - here's that talk summarised.
FOI requests Must Do’s:
⏱️ Timing - as a rule of thumb you should acknowledge an FOI request as soon as possible. However, the required response time in most cases is 20 days, whether information is provided then or withheld. If the “public interest test” applies, this can be extended to 40 days but should not exceed this.
👫 Public Interest - where there is a legitimate public interest in an issue that has a significant impact on the public or there is a concern of wrongdoing then information must be disclosed.
🪙 Costs - where the total cost of complying with a request does not exceed the “appropriate limit” (currently set at £450 for local authorities), the authority must comply. In calculating the total cost of a response, a standard rate of £25 per hour is used. This means 18 hours or less for a local authority would be considered an “appropriate limit”.
👍 Advise - where the request is not clear you must identify & clarify this with the requester and locate the information necessary. If the authority does not hold the requested information but can direct the applicant to another authority, this requester should be advised on where to find this information. Additionally, if the appropriate cost limit would be exceeded, but you think this can be refined to fall within the cost you need to advise this.
FOI Request Exemptions:
🤨Vexatious requests - public authorities may refuse requests that are vexatious (to a high standard). A judgement must be made based on the request, not the requester, but you should consider the motive of the requester as well as the public importance of the information.
🥱 Repeated requests - public authorities may also refuse requests that are identical or substantially similar to a previous request from the same person, where the request was previously complied with or it was confirmed information was not held. You can also refuse a repeated request where there has not been a reasonable amount of time between the two requests.
💰Costs - where the total cost of complying to the request would exceed the “appropriate limit” of £450 (more than 18 hours), the public authority is not required to comply with the request but should explain this to the requester.
🚫 Protecting information - where information has been provided, perhaps given voluntarily to the public authority, and sharing this information would be a breach of confidentiality then the authority can refuse the request. Additionally, if information contains personal data (not that of the requester) that cannot be redacted or, if redacted, would be fairly easy to identify an individual this would be a breach of UK GDPR the request can be refused.
Response & Refusal Notices
📝 Regardless of the nature of the request, you must respond in one of the following ways:
- Provide the information requested.
- Inform the requester that the information is not held, advising them where they can find the information if you know this.
- Refuse to confirm or deny whether the information is held by the council.
- Confirm the information is held by the council but that it will not be disclosed.
The last two options require a “refusal notice” which confirms the exemption relied on, why the exemption applies and why the public interest test does not apply (if applicable).
Q: I've had a FOI request that stated it is not confidential unless a declaration has been signed to say it is confidential, is this true?
A: No - a declaration of confidentially is helpful but not having this does not automatically mean it is not confidential. You will just need to prove why the document is confidential.
Q: Can any information regarding recruitment be released or would that be an automatic exemption?
A: If the FOI request relates to a specific individual, this can be refused based on the fact it includes personal data. If the request was regarding policies and strategies (e.g. equality policy) it is unlikely to fall under an exemption and would need to be provided.
Q: The previous clerk used a personal email which I do not have access to and I was handed 30 years worth of paperwork. Can a FOI request be denied as this was before my time - access to the previous clerk's email is not available and going through the paperwork would exceed the appropriate limit of 18 hours?
A: Yes - as this would take more than the appropriate limit of 18 hours to gather the information the request can be refused. If the information is not available within the paperwork, you would advise that the council does not hold this information as it is held by an individual that is no longer associated with the council. You cannot however refuse a request purely on the basis that it was before your time.
Q: An ex-councillor has requested the application for a reward which was completed online, I did keep screenshots for reference and I believe I shared this information with the council whilst he was a councillor. Do I forward this information?
A: If someone requests one specific document for a specific reason and you believe the motive for this is untoward, then you may be able to refuse this on the grounds the FOI request is vexatious. However, if the information is held and not innocuous then there is no harm in providing this information.
⏯️ Missed the event or want a replay?
For more advice, you can watch Alex's talk on Freedom of Information Requests.
You can also download a copy of the slides.
📖 Useful Resources