Freedom of Information Act 2000 s6

FREEDOM OF INFORMATION ACT 2000

Practice Note for Select Committee Clerks

I INTRODUCTION

1. The purpose of this guidance note is to help Committee Clerks and other select committee staff to deal promptly and effectively with requests for information under the Freedom of Information Act 2000 (FOI Act). It addresses aspects of FOI of particular relevance to Select Committees and should be read with the generic House-wide guidance, together with the one page checklist for FOI request recipients.[1] That Guidance also covers the Data Protection Act 1998. In addition, the Code of Practice on Freedom of Information issued by the Lord Chancellor in 2002 is relevant.[2]

II THE FREEDOM OF INFORMATION ACT 2000

The application of the Act to the House

2. The Freedom of Information Act creates a general right of access, subject to certain exemptions, to information held by public bodies. The House of Commons, and its Committees, are public bodies for this purpose, but individual Members are not. The Act impinges on Select Committees in particular ways—and potentially more onerously than on some other parts of the House service. This is because of the amount and type of information Select Committees hold which does not fall within the strict definition of proceedings, but which is essential for their effective functioning. The Act is fully retrospective.

What is a FOI request?

3. If what appears to be a FOI request is received by a member of the Committee team other than the Clerk, it should be drawn to the Clerk’s attention. A FOI request:

·  must be in writing (including email);

·  does not have to describe itself as being made under the FOI Act;

·  must be reasonably specific in terms of the information sought (but does not have to identify a particular document or documents);

·  must be considered strictly on its merits according to the provisions of the FOI Act;

·  must be disposed of within 20 working days.

4. The following glosses to the above paragraph should be noted:

·  If a member of Committee staff receives what appears to be a FOI request by telephone, the caller should be advised to put the request in writing.

·  The FOI Act (s. 8(1) (c)) states merely that a request must “[describe] the information requested”. This is, however, understood to preclude general fishing expeditions. There is, however, a duty on public authorities to help requesters to clarify the nature and scope of the information sought by them.

·  It should be noted that FOI applies to information, not documents as such. So the information requested may cover more than one document or only part of a single document (see paragraph 25). It will usually be in the form of copies of documents that information will be provided.

·  If the information sought is held and is not subject to any of the exemptions, be complied with free of charge, unless the amount of work involved exceeds the prescribed cost limit, in which case a fee may be levied [see paragraph 40].

·  Where cost is cited as a reason for refusing a request for information, the requester must be afforded an opportunity, and any relevant advice, to enable him or her to narrow the range of the request so as to bring it within the cost-limit. But see also paragraph 40.

·  Where a Committee holds information supplied in confidence, for example, by a government department, any request for that information should not be acceded to without reference to the Department in question (including information which has been submitted as formal evidence to the Committee). See paragraph 22.

5. Requests for information of a kind which were routinely acceded to before the introduction of FOI do not need to be treated (or logged) as FOI requests, but in making this judgment you should err on the side of caution. You should also consider 20 working days to be the standard maximum period for responding to all requests for information, whether or not they were technically made under the FOI Act.

What are the exemptions which are relevant to us?

6. As indicated above, the FOI Act specifies a number of exemptions to the general duty to provide information on request. Most of these exemptions apply to all public bodies, including Parliament, and are subject to a public interest test which can be the subject of an appeal to the Information Commissioner. They are set out in full in an Annex to the generic FOI guidance. The Commissioner may also be asked to adjudicate on the question whether the information requested falls within the scope of the exemption which is relied upon to justify non-disclosure.

7. Two of these general exemptions are worth highlighting in the context of select committee activities. They are:

·  information whose disclosure “would, or would be likely to, prejudice the commercial interests of any persons” [s.43]; and

·  information provided in confidence whose disclosure would constitute a breach of that confidence [s.41].

8. A further exemption relates to information which is due in any case to be published at a later date. The non-disclosure of information under s.22 (Information intended for future publication) has to be justified on the grounds that “it is reasonable in all the circumstances” and cannot be used to justify the non-disclosure of information whose publication may be several months away (for example, in the Sessional Return). But it may be cited in respect of outturn costs for Committee visits which will not be disclosed until they have been finalised.

9. There are two FOI exemptions which apply specifically, or in a specific way, to Parliament: s.34 (Parliamentary privilege) and s.36 (Prejudice to effective conduct of public affairs). Both these sections provide for the issuing, if necessary, of a Speaker’s certificate which is “conclusive evidence” that exempting an item of information from disclosure is necessary to avoid an infringement of parliamentary privilege or prejudice to the effective conduct of public affairs, respectively. There is accordingly no statutory public interest test applicable to these exemptions. The exemptions themselves are described in more detail below. See paragraphs 16 to 21

III HANDLING REQUESTS UNDER FOI

Stage 1: Considering a Request

10. On receipt of a request for information, the following questions should be asked:

·  Is the request sufficiently specific? If not, seek clarification, or a narrowing of the scope, from the requester.

·  Is the information requested held by the Committee? If yes, do any of the statutory exemptions apply? If the information is not held by the Committee but it appears likely that it is held by another department or office in the House, the request should be passed immediately on to the appropriate quarter or to the Freedom of Information team and the requester informed accordingly.

·  If none of the exemptions applies, can the information be provided within the appropriate cost limit (see paragraph 40 below)?

Copies of requests, if received directly, should be sent to the House’s FoI Officer.

Stage 2: Drafting a response

11. The requester should be informed:

·  Either that the request is granted.

·  or that

(a) the information requested is not held.

(b) it is already published (or will be shortly).

(c) the request is refused (giving reasons, clearly expressed and relating to one or more of the statutory exemptions).

(d) although the information is not exempted, it cannot be provided within the appropriate cost-limit and, accordingly, a fee is chargeable.

Stage 3: Securing Approval

12. Draft replies should be sent to the House’s FoI Officer and the Principal Clerk responsible for FOI for approval (currently Paul Evans in the Committee Office).

13. If the reply invokes s.34 or s.36 (and therefore a Speaker’s certificate may be necessary), draft replies should also be sent to the Clerk of the Journals and the Legal Services Office for approval.

14. Once approval has been given by both the Principal Clerk and the FOI officer, copies of any reply sent should be forwarded to the House’s FOI Officer for his files.

15. You may seek the advice of any of the above at any stage in the process, but should normally start with the Principal Clerk.

Stage 4: The Internal Review Process

16. When a requester wishes to challenge the refusal of a request for information (or some other aspect of the way in which his or her request has been handled), an internal review process comes into operation. This is described in detail in the generic FOI guidance.

17. In the case of a refusal, the requester may wish to invoke his or her right to appeal to the Information Commissioner under s.50 of the Act. Assistance and advice will be available to staff in preparing a case for consideration by the Information Commissioner, should the need arise.

IV THE PARLIAMENTARY EXEMPTIONS

18. It is the two Parliamentary exemptions which are likely to be invoked in the vast majority of cases where disclosure of Committee-related information is refused.

Section 34 (Parliamentary Privilege)

19. Under s.34, information is exempt from the disclosure provisions of the FOI Act if “exemption […] is required for the purpose of avoiding an infringement of the privileges of either House of Parliament”. A Speaker’s certificate, if obtained, “shall be conclusive evidence of [the] fact” that exemption from disclosure is justified under s.34.

20. The House of Commons Commission has decided as a matter of policy that in the case of any request for information to which s.34 applies, whether it is otherwise safely disclosable or not, the s.34 exemption should be invoked. Whether a particular Select Committee activity is or is not a proceeding in Parliament is not affected by the FOI Act and does not need to be considered in this context.

21. What is clear, however, is that any information in written form which is created either preparatory to, or as a record of, a Select Committee activity carried out broadly in pursuance of its terms of reference as laid down in the relevant Standing Order is privileged for the purposes of s.34 of the FOI Act. This definition is likely to encompass the great majority of Committee documents, with the partial exception of certain kinds of correspondence and some administrative information, such as that relating to the arrangements for visits (see note to Table after paragraph 35).

22. This means, for example, that briefing and other advice to Members (including legal advice) and notes on visits or meetings prepared for the use of Members need not be disclosed under FoI. But this does not preclude the ability of a Committee, voluntarily and on request, to place in the public domain information in the second of these categories, having reported the relevant document or documents to the House, as many Committees already do in the case of notes on visits published with Reports. Accordingly, material which falls into the category of parliamentary proceedings (which includes briefs, draft reports and in most cases correspondence relating directly to a committee inquiry, as well as other internal briefing material relating to the committee’s discharge of its functions), should not be disclosed in response to an FoI request. if the view is taken that an item of privileged information could be disclosed without causing harm, the requester should be told:

·  that he or she is not statutorily entitled to the information under the FOI Act because, in accordance with s.34, it is exempt information,

·  but that the Committee may be asked to consider making the information generally available by using one of the methods open to it for that purpose.

23. The number of occasions on which resort to this approach is necessary can be greatly reduced by pro-active publication of material as part of a publication scheme under the FOI Act. However, the Committee’s authority must be obtained for the pro-active publication of any hitherto unpublished privileged document, or category of documents. The Principal Clerk responsible for FOI and the Clerk of the Journals should be consulted before such a proposal is put to the Committee.

Section 36 (Prejudice to effective conduct of public affairs)

24. If s.34 does not apply, s.36 may still do so. It provides that information is exempt from the provisions of FOI if its disclosure:

“would, or would be likely to, prejudice-

(i) the free and frank provision of advice, or

(ii) the free and frank exchange of views for the purposes of deliberation,

or would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.”

25. In deciding whether to invoke s.36, Clerks should have regard to the test of harm set out in the Act and quoted above. This means that disclosure would be damaging to the Committee’s ability to carry out its business effectively: it amounts to more than being merely embarrassing or inconvenient. And it should be remembered that a refusal under s.36 may lead to the Speaker being asked to issue a certificate, as described in paragraph 19 above.

Information provided In Confidence

26. Under s.63 of the FOI Act, information in respect of which one of the statutory exemptions has been claimed ceases to be exempt from disclosure after 30 years. (But this does not apply to the exemptions under s.34 (Privilege) and s.41 (Information provided in confidence)). If asked for advice by the Parliamentary Archives about a request for disclosure of an item of information which is not privileged, but which has been provided in confidence by, for example, a Government department or agency, or by a commercial organisation, Clerks should consult the originating body before responding. In order that the Parliamentary Archives is alerted to the sensitivity of information which has been provided in confidence, the relevant documents should be clearly marked, before they are sent to the Office: “Requests for disclosure must be referred to the Clerk of the Committee”.