FOI Summary

Introduction:
The Freedom of Information Act 2000 (FOIA) allows members of the public to request the disclosure of information held by a public authority. The person making the request is known as the applicant.

The FOIA covers any recorded information held by a public authority in England, Wales and Northern Ireland, and by UK-wide public authorities based in Scotland. Information held by Scottish public authorities is covered by Scotland’s own Freedom of Information (Scotland) Act 2002 (FOI(S)A).

The FOIA is often described as being both purpose and applicant blind. This means that anyone can make a request, for whatever reason they like, irrespective of the fact that similar requests may have been made previously.

For the sake of simplicity, this summary will focus primarily on the FOIA 2000, although the terms of the FOI(S)A 2002 are broadly similar. If you wish to refer to the actual legislation, then you will find the text of the FOIA here and the text of the FOI(S)A here.

Information Covered:
The FOIA covers all recorded information held by a public authority, although there may be some circumstances where a public authority can legally refuse to disclose the information. The FOIA covers information held in any form, including:
  • Information created manually (e.g. handwritten notes or sketches).
  • Information held electronically (e.g. computerised records).
  • Photographs.
  • Video or audio recordings.
The FOIA also covers information held by a third-party on behalf of a public authority.

The FOIA does not require a public authority to generate new information for the purposes of responding to a request.

The FOIA does not require a public authority to offer opinions or justify its decisions or actions.

Making FOIA Requests:
A valid FOIA request must be made in writing and include the following:
  • The applicant's name.
  • The applicant's contact address (an email address is perfectly acceptable, although some public authorities pretend to need a physical address).
  • Sufficient information for the public authority to understand the information requested.
There is no requirement for the applicant to mention the "Freedom of Information Act" in their request, although doing so will obviously assist the public authority in recognising and processing such a request.

The applicant has a right to specify the format of the response they receive, which the public authority must make every reasonable effort to comply with.

A good FOIA request will be concise, narrow in scope and neutral in tone.

FOIA Exemptions:
The public authority can refuse to disclose the following:
  • Information available by other means: The public authority does not need to disclose information that is already readily available to the applicant. That would include information already published on the public authority's website, for example.
  • Information intended for future publication: The public authority does not need to disclose information that it intends to make public at a later date.
  • Personal information: The public authority does not need to disclose information that relates to an identifiable living individual.
  • Information prejudicial to law enforcement: The public authority does not need to disclose information that is likely to assist anyone in the commission of a criminal offence.
  • Information prejudicial to national security: The public authority does not need to disclose information that is likely to endanger national security.
  • Information protected by legal professional privilege: The public authority does not need to disclose information protected by legal professional privilege.
There are several other exemptions, but these are the most commonly used. Some of these exemptions are 'absolute', which means the public authority is under no obligation to disclose the information requested. Other exemptions are 'qualified', because they do not justify withholding information unless, on a proper assessment, the balance of the public interest is against disclosure.

Time for Compliance:
It is good practice for the public authority to promptly acknowledge receipt of an FOIA request. Most public authorities do this, although they are not obliged to.

In virtually all circumstances the public authority is obliged to provide a response or valid refusal notice within 20 working days of receiving the request. Schools have to provide a response within 20 normal school days. Many simple requests are dealt with much quicker than that.

The clock stops on the 20 working day time limit if the public authority has to contact the applicant for clarification of their request. The clock won't restart until this clarification has been received by the public authority.

The FOIA does permit an extension to the time limits if the public authority decides it needs further time to weigh up whether or not to apply an exemption. The public authority must inform the applicant if its  response is going to be delayed for any reason. The Information Comissioner's Office (ICO), the official body tasked with overseeing and enforcing the FOIA, has issued guidance stating that even in the most complicated of cases, it should never take a public authority more than 40 working days to provide a response or valid refusal notice.

Format of Response:
To begin with, the public authority normally has a duty to confirm or deny if it holds the information requested. If it denies holding the information then obviously it is unable to provide that information to the applicant.

If the public authority does hold relevant information it has several possible options:
  • Disclose the requested information in full: In this case the applicant has been provided with all of the information requested.
  • Disclose the information in part: In this case the applicant has been provided with some of the information requested. The public authority must cite the FOIA exemptions it is relying on in order to withhold the remaining information. The applicant may wish to challenge the public authority's decision to withhold the information.
  • Refuse to disclose any information: In this case the applicant has been provided with no information, even though relevant information does exist. The public authority must cite the FOIA exemptions it is relying on in order to withhold the remaining information. The applicant may wish to challenge the public authority's decision to withhold the information.
Public authorities have a duty under the FOIA to provide reasonable assistance to the applicant. Suppose the public authority didn't hold any relevant information, but it knew who did, then it should point the applicant in the right direction.

You can read more about these exemptions and several others on the Ministry of Justice website.

Complaining:
If the applicant is dissatisfied with the way their request has been handled, then they can normally ask the public authority to conduct a review. The public authority will reconsider the request and may decide to disclose the information after all.

If the public authority's review upholds its original decision, then the applicant can complain to the ICO. ICO staff are subject matter experts on the FOIA and will decide whether or not the public authority is correct in its interpretation of the legislation. If the ICO agrees with the applicant, then it can issue a Decision Notice compelling the public authority to disclose the information requested.

That concludes our whistle-stop tour of the FOIA. You might now like to suggest a Freedom of Information topic to us.