Freedom of Information Act 2000

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Freedom of Information Act 2000 (FoI or FoIA) is the UK Freedom of Information legislation.

For general information about making requests, see Freedom of Information Act 2000/Making requests.

Duty to confirm or deny

Public bodies subject to FoI have a “duty to confirm or deny”; that is, someone making an FOI request has a right “to be informed in writing by the public authority whether it holds information of the description specified in the request”.[1]

This right is separate to the right to the information as such. Various exemptions can prevent disclosure, and in many cases a “neither confirm nor deny” response can be given.

Cost limits and charges

There is a cost limit of £600 per request, assuming £25 per hour spent on the request. This equates to 24 hours, or approximately 3 days of work.

For smaller authorities, the cost limit is £450, or 18 hours / 2 days.

Public interest test versus absolute exemptions

Section 2 creates a distinction between “absolute exemptions” and those where a public interest test must be applied.[2]

Absolute exemptions

  • section 21, Information accessible to applicant by other means
  • section 23, Information supplied by, or relating to, bodies dealing with security matters
  • section 32, Court records
  • section 34, Parliamentary privilege
  • section 36 so far as relating to information held by the House of Commons or the House of Lords,
  • section 37, Communications with Her Majesty, etc. and honours.
  • Most of section 40 (personal information)
  • section 41, Information provided in confidence
  • section 44, Legal professional privilege

Exemptions

This non-exhaustive list of FoI exemptions explores some of the problems most likely to be encountered by ORG.

Section 23: Information supplied by security bodies

Information supplied by, or relating to, bodies dealing with security matters is exempt.[3] Information can be certified by a Minister as having been supplied by or relating to one of the agencies and this is "conclusive evidence of that fact”.[4]

The Intelligence and Security Committee and National Crime Agency fall under this exemption, as well as the Investigatory Powers Tribunal and other tribunals created to deal with security powers.

The “duty to confirm or deny” does not apply in these cases.

Section 24: National security

National security can exempt material from disclosure under Section 24.[5]

This is allows information to be exempt even if it does not relate or belong to an agency dealing with national security, but rather “ if exemption … is required for the purpose of safeguarding national security”.

A minister may certify if the information is exempt, in which case the certificate is “conclusive evidence of that fact”. The certificates “may identify the information to which it applies by means of a general description” and have “prospective effect”.

The “duty to confirm or deny” does not apply in these cases. In other words, if the recipient of an FOI request holds a certificate exempting them from disclosure, they can respond to say they “neither confirm nor deny” the existence of the information.

Sections 30 and 31 : Law enforcement

Law enforcement considerations can prevent disclosure.[6] The categories of information that are exempt are primarily in relation to investigations under Section 30. Section 31 is a broader exemption designed to stop information being disclosed that would “prejudice” investigative practices.

31 Law enforcement.

(1) Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders,
(c) the administration of justice …

An additional set of requirements exist for other kinds of law enforcement, such as civil matters, tax, health and safety and so on, under Section 31 (2).

Information that falls under the the exemption in 31 (1) can illicit a “neither confirm nor deny” response.

Section 35: Formulation of government policy, etc

Section 35 exempts information relating to the formation of government policy, including ministerial communications, legal advice from the Attorney General, or Solicitor General, and the operation of ministerial offices.[7]

However, this is a qualified exemption, and in relation to “formation of government policy”:

“regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking[8]

However, the public interest test does not apply to ministerial communications, the operation of ministerial offices or legal advice.

Statistical information is not subject to this exclusion.

Advice from law officers

Advice from the law officers is not subject to the public interest test.

Section 36: Prejudice to effective conduct of public affairs

This is a wide ranging set of potential objections relating to the general work of government. They apply “in the reasonable opinion of a qualified person”.[9]

There is an obvious tension between the public interest, which might benefit from knowing about options discussed and who might have been involved in discussions, and the need for administrations to considers their options without fearing the consequences.

This information is less sensitive once policy has been formed.

Authorities can issue a “neither confirm nor deny” response if the existence of the information could itself cause problems.

Section 38: Health & safety

Health and safety considerations can prevent disclosure if is likely to:

(a) endanger the physical or mental health of any individual, or
(b) endanger the safety of any individual.[10]

Authorities can issue a “neither confirm nor deny” response if the existence of the information could cause problems as outlined above.

Section 41: Information given in confidence

Section 41 exempts disclosure of information that would “would constitute a breach of confidence actionable by that or any other person”.[11]

Section 43: Commercial confidentiality and trade secrets

Section 43 (1) exempts trade secrets, while 43 (2) exempts information “if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person”.[12]

Codes of practice and Internal review

See also: Freedom of Information Act 2000/Code of Practice

The detailed operation and application of the Act is governed by a code of practice, in which the Minister for the Cabinet Office sets out what is “desirable for them to follow in connection with the discharge of the authorities’ functions under Part I”.[13] The current Code of Practice dates from 2004.[14]

Codes are laid before Parliament using the negative resolution procedure.

The Code provides for “internal review”. According to the code, a more senior person should review the decision.

If the authority has an internal review process, this must be completed before making a complaint to the Information Commissioner.

Complaints to the Information Commissioner

Part IV and V of the Act create mechanisms to review decisions made by public authorities, where they decline requests.[15]

After internal review, a request can be taken to the Information Commissioner.[16] who can request information from the authority under an “Information notice”. Any decision by them to release the information is then be communicated to the authority by an “enforcement notice”. This specifies a time period to release the information, and a timescale to request an appeal to the Information Tribunal.

Certificates to reject decisions

Clause 53 also provides a mechanism for the responsible person in certain authorities to issue a “certificate” that their decision was correct, and the information should not be disclosed. This is given to the Commissioner and placed before Parliament, or the NI or Welsh bodies in the case of authorities in those devolved regions.

The Information Tribunal

Decisions of the Information Commissioner can be appealed to the Information Tribunal, the powers and process of which is outlined in Part V.[17]

Appeals against National Security certificates

The Tribunal can quash national security certificates. It is not entirely clear on what grounds they can be quashed, given that the exemptions are “absolute”, other than that the information does not relate to national security. Nor is it clear how national security might therefore be defined.[18]

There is more flexibility to challenge certificates issued for information under section 24, where it relates to national security but does not relate to the agencies. In these cases, judicial review standards can be applied.[19] Judicial review standards relate to the sanity of the decision-making process rather than its objective correctness.

ORG FOI requests

More information

References

  1. Section 1 (1) and (6), Freedom of Information Act 2000, legislation.gov.uk
  2. Section 2
  3. Section 23 Freedom of Information Act 2000, legislation.gov.uk
  4. Section 23 (2) Freedom of Information Act 2000, legislation.gov.uk
  5. Section 24 Freedom of Information Act 2000, legislation.gov.uk
  6. Section 30 and Section 31, Freedom of Information Act 2000, legislation.gov.uk
  7. Section 35, Freedom of Information Act 2000, legislation.gov.uk
  8. Section 35 (4), Freedom of Information Act 2000, legislation.gov.uk
  9. Section 36 Freedom of Information Act 2000, legislation.gov.uk
  10. Section 38 Freedom of Information Act 2000, legislation.gov.uk
  11. Section 41 Freedom of Information Act 2000, legislation.gov.uk
  12. Section 43 Freedom of Information Act 2000, legislation.gov.uk
  13. Section 45, Freedom of Information Act 2000, legislation.gov.uk
  14. Code of practice on the discharge of public authorities functions under part 1 of the Freedom of Information Act 2000 Department for Constitutional Affairs, 23 December 2004
  15. Part IV and Part V, Freedom of Information Act 2000 legislation.gov.uk
  16. Section 50 Application for decision by Commissioner, Freedom of Information Act 2000
  17. Part V, Freedom of Information Act 2000 legislation.gov.uk
  18. Section 60 (3) “If on an appeal under subsection (1) relating to a certificate under section 23(2), the Tribunal finds that the information referred to in the certificate was not exempt information by virtue of section 23(1), the Tribunal may allow the appeal and quash the certificate”
  19. Section 60 (4) “[if] … the Tribunal finds that, applying the principles applied by the court on an application for judicial review, the Minister did not have reasonable grounds for issuing the certificate, the Tribunal may allow the appeal and quash the certificate.”