Freedom of Information
West Essex PCT's Fair Processing Note explains why we collect information about you; how this information is used to help the NHS; how we keep your records confidential; how you can get access to your own health records; and who to contact for further information and help.
FREEDOM OF INFORMATION ACT 2000 – in force 1 Jan 2005
1. Access to information held by Public Authorities
2. Exempt information
3. General functions of the Secretary of State, Lord Chancellor and Information Commissioner
6. Historical records in public record office
7. Amendments to the Data Protection Act
8. Miscellaneous and supplemental
There are also 8 schedules to the Act and regulations and codes of practice1 of which you need to be aware.
Right to Information:
The Act provides for the disclosure of information held by Public Authorities or by persons providing services for them (note well!)
The act confers two statutory rights on applicants, the duty to confirm or deny:
- To be told in writing whether or not a public authority holds the information they require and if so
- To have that information communicated to them not later than the twentieth working day following the date of receipt of that request (for exceptions to the latter – see below*)
- Anyone can request information under the act regardless of age, nationality or location.
To whom does the Act apply:
The Act applies to all Public Authorities within the following categories –
A full list of Public Authorities is set out in the Act.
Making out a request:
An applicant must –
*If a Public Authority does not understand the request, it should contact the Applicant to clarify what is wanted. The ‘20 working days’ will not begin until the applicant has made clear the information that is required.
How many requests can an applicant make?
The Act does not specifically limit the number of requests an applicant can make but it can reserve the right to refuse any vexatious or repeated requests. This may include repeated requests from the same person for the same information or requests which are intended to disrupt an authority’s work.
Time for compliance and fees
In some cases Public Authorities can within the 20 working days serve notice in writing on an Applicant that a fee is payable for the information specifying the amount. Where such notice is given there is no obligation to provide the information unless the fee is paid within three months of the notice being given. On receipt of the fee the request must be fulfilled within the 20 working day period.
If an exemption applies then the 20 working day period does not apply, the Public Authority need only reply in such time as is reasonable in all the circumstances.
When can a Public Authority charge a fee?
If the information requested is contained in a Public Authority’s publication scheme (see details below), the scheme should also give details of whether and how much it will charge for providing the information.
If the information requested is not contained within the publication scheme, the Public Authority may charge a fee, as laid down in the Freedom of Information and Data Protection (Appropriate Limit and Fees Regulations) 2004.
A Public authority may charge a fee to supply information where the cost of doing so exceeds an appropriate limit as set down in the regulations – appropriate limit is set between £450 and £600 depending on the type of Public Authority.
Personnel time is to be estimated at £25 per hour and for the purposes of calculating the appropriate limit, account can be taken of such activities as determining whether it has the information, locating it, extracting it etc.
However, the Public Authority will still be obliged to communicate to an applicant that it holds such information. It must give notice to an applicant with reasons if a refusal is to be made. An applicant can ask for information to be supplied in:
- permanent form
- summary form
- or for permission to inspect records containing the information
An applicant may request information in any format** – however, the cost of supplying the information in a particular format may be taken into consideration before complying with such a request.
**An applicant might request that information be supplied in Braille, audio format, in larger type or another language for example.
Refusing a request
A request for information may only be refused by a Public Authority if it falls under one of the specified exemptions below, some of which are absolute and some of which will apply depending on the circumstances of a particular case.
If a request is refused, the reply from the Public Authority must identify which exemption it is applying. If it is considering refusal because of the circumstances of a particular case, it must advise the applicant that a decision has not yet been reached and give an estimate of the date by which it expects a decision to have been reached.
A letter of refusal must give details of how the applicant can apply for an internal review of the decision (and specify how an applicant can complain about the handling of a matter). Internal review procedures should be put into place. If the refusal still stands after an internal review, the applicant can appeal to the Information Commissioner (The Data Protection Commissioner is now known as the Information Commissioner) for a review of the decision.
For more details see:
‘Anyone who alters, defaces, blocks, erases, destroys or conceals any record with the intent of preventing disclosure is guilty of an offence and liable to a summary conviction not exceeding level 5 (approx £5,000) on the standard scale’.
If the Commissioner concludes that a Public Authority has failed to communicate adequate information he must send a decision notice specifying the steps that must be taken and the timescale. Where a decision notice has been served the applicant or Authority may appeal to the tribunal against the notice.
The Commissioner can also require a Public Authority to furnish him with further information prior to deciding on a referral made by an applicant, by the serving of an ‘Information Notice’, giving reasons for his request. If the Commissioner is still not satisfied that the Public Authority complied with the Act, an ‘Enforcement Notice’ will be served.
Public Authorities can also appeal against Information and Enforcement notices.
If there are no reasons for exemptions to the notice and the Public Authority fails to comply with the notice, the Commissioner can certify this to the court, who will proceed as it would for contempt proceedings.
Decisions to the Tribunal may be appealed on a point of law to the High Court.
Public Authorities are required to produce, maintain and disclose in accordance with a publication scheme.
A scheme should set out what kinds of information a Public Authority will proactively make available without being asked and how it will do it. This information will usually be made available on a website if they have one.
This should not be just a list of documents already published by the Authority, but should be descriptive about ‘classes’ and ‘kinds’ of information e.g. minutes, reports etc.
It can also charge a fee for providing the information, particularly if it did so prior to the Act coming into force.
Information contained in this scheme should be requested in the normal way.
All schemes have to be approved by the Information Commissioner.
A number of exemptions apply to protect confidential information, some of which are absolute and some of which depend on the circumstances and on whether the public interest in maintaining an exemption outweighs the public interest in disclosing it.
The relevant Section must be quoted in exemption refusal cases.
Absolute exemptions are:
How an Applicant can use the information received
The Act does not place any restriction on how the information supplied under it may be used.
However, the Act does provide for exemptions for commercially sensitive information, information intended for future publication or information related to investigations, law enforcement and court records.
The Act does not transfer copyright in any information supplied under it.
Freedom of Information: a practical guide to implementing the act. Kelvin Smith. Facet Publishing 2004 ISBN 185604517X