Freedom of Information

Background and Basics

What is the Freedom of Information Act (FOI)?

The Privacy and Information Rights Advisory Service (PIRAS), which is part of the Legal Advisers Office (LAO), has responsibility for policy and advice issues relating to FOI Act and Data Protection.

The FOI Act was passed in 2000 and took effect from 2005. It aims to increase accountability and transparency and was seen as part of public sector reform to build a culture of rights and responsibilities for citizens.

The Act gives a statutory right to the public to information held by most public authorities, subject to exemptions to disclosure.

  • Not all public sector bodies are included in the Act.
  • Coverage includes
  • Central government
  • Non-departmental public bodies (NDPBs)
  • The NHS
  • Local authorities
  • Maintained schools (including Academies)
  • Colleges
  • Universities and many more.

When is a request for information an FOI request?

Requests for information come into the Department via the Public Communications Unit. They are then placed on ECHO and allocated to the relevant business area to deal with. Requests directly received by business areas should also be placed on ECHO. If it is a request under FOI, the FOI box must be ticked and the Deadline link will then show the FOI deadline for response.

Whether or not the request mentions the FOI Act has no bearing on the request being covered by the FOI Act. For a request to come within the FOI Act, it has to:-

  • Seek access to recorded information about the business of the Department
  • Engage the Act - you need to think carefully about the release or withholding of the information asked for
  • Be in writing (paper or email)
  • State the name of the requestor and an address for reply (email addresses are acceptable)
  • Describe the information needed so it can be identified and located

Most FOI requests we receive ask for copies of correspondence relating to a particular policy or decision.

The vast majority of correspondence received is non-FOI requests - these are more routine and straightforward and are dealt with in the normal course of business . Requests that ask for the Department's opinions, views or intentionsor ask "when", "why" "where" type questions are not seeking access to recorded information and are not therefore, in most cases, FOI requests.

Where the requestor asks to see their own personal information, this is a request under the Data Protection Act and not FOI; although someone asking to see someone else's personal information should be dealt with as a FOI request.

What if clarification is required?

Clarification is needed when the request is ambiguous or you need further information in order to respond.

The request should include enough information to enable you to identify and locate what has been asked for. In cases where the enquiry is ambiguous we should, where relevant, assist the enquirer to describe more clearly the information requested. Where possible, establish direct contact. This can save a lot of time and help meet our legal obligation to advise and assist enquirers.

The aim is to clarify the nature of the information requested and not to determine the aims or motivation of the enquirer. If we notify the enquirer that we need further information to enable us to answer their request, we do not have to deal with it until the additional information is provided.

The response time limit starts from the date this additional information is received and a new ECHO case is appropriate, linked in the notes to the original request. Obviously this will not apply where clarification is obtained either by telephone or an email from the requestor.
You can use or customise the wording in the Clarification template response.

What if the request is received by telephone?

Telephone enquiries are not covered by the FOI Act. Enquiries can be dealt with over he telephone where the equity is relatively straightforward and can be dealt with satisfactory either immediately or with a return call.
However, for more complex enquiries, and to avoid disputes over what was asked for, you should either;
Ask the enquirer to put the request in writing or email, or write down what has been requested and send the note to the enquirer for confirmation.
Once verified by the enquirer and returned, this will count as a written request under FOI. The response time starts from the date the written confirmation is received.

What are the Publication Scheme and FOI Disclosures?

Publication Scheme

The FOI Act requires public authorities to proactively make information available and this is called the Publication Scheme. The Department’s version of this can be seen on the Departmental website.

FOI Disclosures

This is a vehicle for making available FOI requests and their responses. Additions are made when the response is considered to be of interest to the wider public. Departmental disclosure log.

What to do when a request is received

Once you've decided that a request is covered by FOI, ensure that the ECHO case is marked as FOI by going to "Classification" and if necessary amending the FOI tag.

  • The first step in identifying relevant information is to arrange for a check of the following electronic and paper records:-
  • Workplaces
  • Shared areas, look in relevant folders
  • Personal folders
  • Outlook mailboxes
  • ECHO
  • Registered files logged on the INFORM system
  • Other paper records
  • Is the information already published? -if the information or any part of it is already in the public domain, you can give the link to it if its considered to be reasonably accessible to the requestor, even if its accessible only on payment (you can assume access to a computer in cases where the request has been received in paper form)
  • Are we going to publish the information asked for? if, at the time of the request it has been decided to publish the information in the future, we do not have to be rushed into premature publication where this could disrupt publication timetables - see exemption s22.

Cost Threshold

The FOI Act recognises that dealing with some wide-ranging requests can incur significant resource and cost. There is a threshold cost set at £600 for central government (£450 for other public bodies). This applies only when the estimated cost of complying with a request exceeds this cost.

A standard hourly rate of £25 is the general cost used by all public bodies when calculating the cost of staff time regardless of actual costs or grades involved. This equates to one person incurring 3 and a half days work.

What can be included in the estimate

When estimating the cost of compliance, you can only take into account the cost of the following activities:

  • determining whether we hold the information (holding means we created it, another body created it but we hold it or someone else holds it on our behalf);
  • finding and retrieving the requested information, or records containing the information; and
  • the information that is relevant to the request from a document containing it (including only the first time an individual reads information for this purpose - subsequent readings should not be included).

You will need to keep a record of your calculations in case of challenge.

What can't be included in the estimate

You cannot count the following for the purposes of calculating whether or not the threshold cost would be exceeded:

  • costs involved in considering whether material should be classed as exempt under the Act and whether exempt information should be disclosed under the public interest test;
  • costs involved in considering whether a request is vexatious or repeated;
  • obtaining authorisation to send out a request;
  • the time taken to calculate the threshold cost.

The vast majority of requests should be reasonably straightforward and estimations about exceeding the threshold cost would only need to be considered in very complex requests likely to involve substantial resource.

Aggregation

The regulations also allow for aggregation of costs where two or more requests on the same or related subject are received by one person, or by different enquirers who appear to be involved in a campaign. These subsequent requests must be received before the 60th working day following the first request.

Aggregation is meant to prevent individuals or organisations circumventing the threshold by splitting the request into smaller parts. In practice, caution would have to exercise in consideration of aggregation and advice should be sought. Aggregation is not applicable where the response to a first request raises further questions where an enquirer raises further, different questions.

Responding to the request

If you wish to use section 12 (cost limit) of the Act as grounds for refusing the request, you should send the requester a written refusal notice. This should state that complying with their request would exceed the appropriate cost limit. However, you should still say whether you hold the information, unless finding this out would in itself incur costs over the limit.

There is no official requirement for you to include an estimate of the costs in the refusal notice. However, you must give the requester reasonable advice and assistance to refine (change or narrow) their request. This will generally involve explaining why the limit would be exceeded and what information, if any, may be available within the limits.

You should not:

  • give the requester part of the information requested, without giving them the chance to say which part they would prefer to receive;
  • fail to let the requester know why you think you cannot provide the information within the cost limit;
  • advise the requester on the wording of a narrower request but then refuse that request on the same basis; or
  • tell the requester to narrow down their request without explaining what parts of their request take your costs over the limit. A more specific request may sometimes take just as long to answer. For instance, in the example above, if the requester had later asked only for expenses claims relating to hotel room service, this would also have meant searching all the records.

If the requester refines their request appropriately, you should then deal with this as a new request. The time for you to comply with the new request should start on the working day after the date you receive it.

Responding to requests

All of the information requested to be released

If it is decided to comply fully with the request, you should reply with the information asked for within the time limits. You should respond as a soon as possible. Failing that you should aim to respond by the internal communications deadline of 15 days and in any event within the 20 working days stipulated for FOI requests (the 20th day date can be seen on the ECHO case under "Deadlines").

The draft response MUST be approved by your Deputy Director at least, to ensure that the information is being released appropriately, even if the information being released appears to be straightforward and non-sensitive, and that the information is within scope of what has been asked for. You may use this template for seeking approval for a draft response.

Ensure that you keep a data trail record of enquiries, including reasons for decisions on release, using exemptions, or cost threshold, according to the FOI Retention Schedule.

Reply use the basic wording in the all info released template response.

ECHO - in order to close the case, you must complete the outcome by:-

  • Clicking on “FOI” on case details on left
  • Ensuring “FOI applies” box is ticked
  • Under “RFI Outcome” select from the dropdown list “All Information Delivered”
  • Scroll to the bottom of the screen and click on the “Save” button

Scope of the request
Take care to ensure that no information in the material to be released is out of scope of the terms of the request; see guidance.

Removing Information (Redaction)
When releasing all information, redaction of information may be needed to take out information which does not fall within the scope of the applicant's request .
There are different ways of achieving this. FOI applies to information and not documents so rather than release a document with out of scope material redacted from it, it may be more appropriate to release solely the information that can be released by creating a new document with only that information in it. This is particularly relevant where the majority of the information contained in the document does not fall within the scope of the applicant's request. Or, a document can be simply "black-penned" to delete informationwhich is out of scope.
When sending a response in paper format, ensure the blacked-out parts cannot be read when held up to the light. Photocopying can help.
Technological advances may allow redactions made from electronic documents to be reversed so when making redactions to documents which are for release in electronic format, you can either copy the information to a new document and make an indication of where a redaction has been made citing the exemption if appropriate, or print out, make black pen redactions and scan in.

Names of officials
Note that we do not normally release names of officials below SCS level; see guidance.

Partial release of information

In cases where you are going to release some information but apply an exemption to the rest of the information, the same considerations as detailed in the guidance shown for "Information given" and "Information not given", should be taken into account. Ensure that you keep a data trail record of enquiries, including reasons for decisions on release, using exemptions, or cost threshold, according to the FOI Retention Schedule.

Reply using the basic wording in the template response customised as necessary.

Your DD must approve all FOI responses. You may use this template for seeking approval for a draft response.

ECHO - in order to close the case, you must complete the outcome by:-

  • Clicking on “FOI” on case details on left
  • Ensuring “FOI applies” box is ticked
  • Under “RFI Outcome” select from the dropdown list “Information Partially Delivered”
  • Under “FOI Refused Reason” select from the dropdown list “Other (Exemptions)” and click on add button
  • Repeat above if more than one exemption applies by selecting the other exemption from the dropdown list and
  • Click on the add button, continue adding the exemptions from the dropdown list until you selected all applicable exemptions for this case
  • Scroll to the bottom of the screen and click on the “Save” button

Take care to ensure that no information in the material to be released is out of scope of the terms of the request.

Removing Information (Redaction)
Information which should not be released should be deleted from a document but it should be made clear that redactions have taken place and cite the reasons. Redaction of information may occur for two reasons: -
to remove from a document that is due to be released:-

  • Information which is exempt
  • Information which does not fall within the scope of the applicant's request

There are different ways of achieving this. FOI applies to information and not documents so rather than release a document with exempt material redacted from it, it may be more appropriate to release solely the information that can be released by creating a new document with only that information in it. This is particularly relevant where the majority of the information contained in the document does not fall within the scope of the applicant's request. Or a document can be simply "black-penned" to delete information to be protected or is out of scope.
When sending a response in paper format, ensure the blacked-out parts cannot be read when held up to the light. Photocopying can help.
Technological advances may allow redactions made from electronic documents to be reversed so when making redactions to documents which are for release in electronic format, you can either copy the information to a new document and make an indication of where a redaction has been made citing the exemption if appropriate, or print out, make black pen redactions and scan in.

Note that we do not normally release names of officials below SCS level.

Information not given

All of the information requested is to be withheld under an exemption

If it is thought that an exemption(s) to a request is applicable, you should always contact the Information Access Manager for advice.

The guidance on the relevant exemptions should be followed. Note that the presence of a protective marking such as Restricted or Confidential or Secret is not an exemption; it simply serves to indicate that there may be material that warrants the application of an exemption. Also, where release of material is thought to be embarrassing, or likely to be misunderstood or misinterpreted, this is unlikely to be a reason for withholding.