CHANGE LOG

Version / Date / Author
0.1 Draft 1 / 8 June 2012 / Sharon Beattie – Director of Operations
1.0 / 17 October 2012 / Sharon Beattie – Director of Operations
CONTENTS
Page
1 / Introduction / 4
2 / Purpose / 4
3 / Roles and Responsibilities / 5
4 / FOI Information Requests / 6
5 / FOI Complaints and Internal Review / 19
6 / External Investigations / 27
7 / Monitoring and Records Management / 29
8 / Equality Screening / 29
Appendix 1 / 30
Appendix 2 / 31
Appendix 3 / 33
Appendix 4 / 37
Appendix 5 / 34

1
Introduction

The Freedom of Information Act 2000 (FOI), creates a general right of access to recorded information held by public authorities although there are some exemptions. The intention is to provide transparency in the conduct of public affairs andplaces a statutory duty on public authorities to provide advice and assistance to applicants.

Freedom of Information (FOI) requests must be responded to within 20 working days.

The Data Protection Act 1998 (DPA) - Section 7 of the Act gives individuals the statutory right, subject to some exemptions, to see information which organisations hold about them. Subject Access Requests (SAR) must be made in writing and accompanied with a valid form of identification. SAR must be responded to within 40 working days.

Information that is subject to FOI Act

  • The legislation applies regardless of format, origin or age of information
  • Includes files, letters, emails, reports, notebooks, registers, jotters, photographs, diaries, maps, electronic and hard copy
  • Archived, current and closed files
  • All information held by the SBNI, including information received from others such as RCPC.

2Purpose

The Freedom of Information Act 2000 encourages the pro-active release of information by organisations through the implementation and upkeep of a publication scheme. The following procedure has been put in place to ensure requests for information to theSBNIare substantively answered within the timescale and are managed in compliance with the Freedom of Information Act 2000 and the Data Protection Act 1998 respectively.

This procedure identifies;

  • The contact person with responsibility for FOI / DPA within the SBNI.
  • The steps involved in processing requests
  • Outlines criteria for making an informed decision as to whether or not to disclose the information requested.
  • Reporting structure to ensure the Chair and Board are regularly updated
  • Details the steps taken when a complaint is made

3Roles and Responsibilities

The Office Manager has responsibility for managing the coordination of FOI / SAR requests on behalf of the SBNI. It is the responsibility of all staff to provide information within the timescales required in order to meet the legal requirements. There are several roles in processing FOI requests and complaints, within SBNI which are set out below. Please note that in situations of absence the individuals performing these roles may vary.

Data Guardian

  • Receives request for FOI, liaises with the appropriate staff and acts as point of contact for applicant throughout the process.
  • Office Manager

Data Controller

  • A suitably knowledgeable individual who will access the FOI request and information held by the SBNI and reach a decision as to whether the request can be granted.
  • Professional Officer

Reviewer

  • In the event of a request for internal review, an independent individual who was not involved in or privy to the decision making process for the initial request can review the initial decision made. This person should be senior to those involved in the initial process.
  • Director of Operations

4FOIInformation Requests

The SBNI receives a number of requests for information in the course of an average week; employees must make themselves familiar with this policy to ensure that they can recognise a request that comes under the remit of the FOI Act 2000.

How to identify an FOI request

Information requests received by the SBNI can be distinguished by first establishing if the information requested can be obtained and provided without any question such as leaflets, website address, contact details or text of a public speech that would routinely be provided. These requests are not asking for recorded information but information that has already been published or is intended to be published by the SBNI.

If the request is asking a question such as an explanation of a policy, or the reasons for a decision being made then this can also be treated as general correspondence.

When to handle a request as a FOI request;

  • If it becomes apparent that the information is unlikely to be released such as specific details regarding a CMR.
  • If the information is held by the SBNI and needs to be actively considered then this is a FOI request.

Receiving Requests - Process

  • Requests must be received in writing and do not need to specifically refer to the Freedom of Information Act 2000.
  • Request can also be made through the SBNI’s website, a dedicated e-mail address can be placed within the ‘Contact us’ section. The e-mail address is as follows:

All e-mails to this address will be copied to the Data Guardian.

  • Once a request has been received it will be recorded and allocated and individual reference on the FOI Register in the SBNI Office.
  • If the request is received:

Prior to 9am then that is the first day of the process.

After 9am then the next day is the first day of the process.

See appendix 1

  • Astandard acknowledgement letter advising that the SBNI has information pertaining to the request will be sent out alongwith aFOI Information Leaflet and fee request, if applicable, within 24 hours of receipt of request. Please see 4.9 Fees.
  • FOI request internal pro forma to be filled out
  • If a request is received that falls under the Data Protection Act 1998:

The Data Guardian will allocate an individual reference number on SAR database in the SBNI office.

Acknowledgement letter will be sent out with a Subject Access to Health Records Application Form (SAR) that is to be filled out and returned, see appendix 5,with ID by the applicant.

  • Requests made to the SBNI that fall under the remit of FOI or DPAshould be forwarded as soon as possible to:

Office Manager

SBNI

18 Ormeau Avenue, Belfast, BT2 8HS

E-Mail:

Telephone: (028) 90279 379 / 90311 611

Preparing Responses

  • The Data Guardian will request and gather copies of all THE relevant documents.
  • The Data Controller will decide how each request will be answered within the agreed timescale. See fig. 4questions to consider.
  • The Data Controller will decide if any exemptions are applicable to the request, see fig 4.4 andappendices 2 & 3 Exemptions.
  • The Data Controller decides whether to grant or refuse the request in part or full, see 4.53, 4.5.4 and appendices 2 and 3.
  • Data Guardian is advised of outcome of request
  • The format of the response will be considered as the applicant can indicate the format of the response such as electronic or hard copy. The final format in which the information is released in should, if possible, meet the requester’s needs although in some cases due to the volume of information required etc this may not always be possible:

If unable to comply with requested format, the requester must be advised why this is the case.

  • The response letter will then be signed by the Data Controller and the data manipulated into standard response template letterand internal pro forma.

Decision making

  • When deciding the content of the response there are 3 mainoptions:

There are no exemptions and the information can be released in full

The information is exempt and is therefore withheld.

Part of the information is exempt and a redacted version can be released, the requester must be advised of which exemptions are applied to which sections of the document. The redacted version must be understandable.

  • The Data Guardian may want to contact therequester to:

explain how the Freedom of Information Act works

To gain further clarification of information required if the request is ambiguous or has multiple meanings.

Decide on format of information as the requester may want a straightforward answer, not all of the relevant information may be held by the SBNI.

  • The Data Controller should consider the following,please note these questions should only be used as a guide and are not exhaustive.

The entire remit of the information requested.

Can the decision be made and communicated to the applicant within 20 working days?

Are there any exemptions that need to be applied to the information request?Appendix 2 and 3

Is Public Interest Test (PIT) required, see 4.6

Is a fee required?

Can the information be released, if so, in part or full?

Does the SBNI need to negotiate with the applicant to reduce the remit of the request?

Can the SBNI provide the ‘advice and assistance’ as is required by the FOI Act 2000?

  • Can the information be released in part orin full, consider:

Is the information exempt from release to the applicant?

What part, if any, can an exemption be applied to, if any?

Do PIT results merit release in full or part of information?

Could the SBNI reasonably anonymise or manipulate the information so as to enable a partial response whilst maintaining whatever sensitivity exists in that information?

Exemptions

  • Exemption will apply to some information requested from the SBNI:

All or part of the information requested may be exempt

Different exemptions can be applied to different parts of the requested information.

All exemptions do not have to be identified if you are sure that one exemption applies to all the information.

  • There are two types of exemptions:

‘Absolute’exemptions see 4.5.3 and appendix 2.

‘Qualified’ exemptions, see 4.5.4 and appendix 3

Some exemptions apply to categories of information such as criminal investigations or communication with the royal family which are class based exemptions

Health and safety and commercial interests are prejudice based examples.

The following information should be read in conjunction to the Freedom of Information Act 2000 and The Data Protection Act 1998.

Absolute exemptions

This means that the information is automatically withheld and is not subject to Public Interest Test (PIT) or test of prejudice.Please see appendix 2 for ‘absolute’ exemptions as per Part II, Freedom of Information Act 2000.

  • If an exemption is cited as the reason for withholding information then the applicant must be advised of the specific exemption
  • It is important to determine if the exemption applies to all the information as to avoid criticism if this cannot be justified.

Qualified exemptions

This means that the information requested is subject to a Public Interest Test (PIT) or test of prejudice, see 4.6. If a qualified exemption applies themain aspect for consideration will be whether the public interest in withholding or disclosing the information.

Please see appendix 3 for ‘qualified’ exemptions from Part II, Freedom of Information Act 2000.

  • If a qualified exemption is used the factors for and against public disclosure.
  • The reasons for withholding the information can also be withheld if doing so would involve disclosure of the exempt information
  • It is important to determine if the exemption applies to all the information as to avoid criticism if this cannot be justified.

Protective markings

Please note that protective markings:

  • Does not mean that an exemption must be applied.
  • Markings such as ‘private and confidential’ often refer to the most sensitive information contained in the overall document when it was created.
  • It is important to consider if this protection is still relevant as the sensitivity of the information can abate over time.

For further details of exemptions please refer to the Freedom of Information Act 2000, this can be downloaded from the Information Commissioners website,

Public Interest Test (PIT)

The public interest test applies if the exemption is qualified.See appendix 3.There are no set rules for the Public Interest Test (PIT). The PIT is generally a decision based on judgement and knowledge applied to each case individually. Therefore this test is best applied by those who are professionals or those who have working experience in the area of work concerned, e.g. safeguarding and child protection, as they will have a sound background knowledge and experience to see ‘the bigger picture’ and make a fair judgement.

There are a number of factors that could potentially affect the balance of the PIT such as:

  • Promoting the independence of the SBNI’s work
  • Furthering public understanding about the SBNI’s functions
  • Promoting accountability and transparency of decision making
  • Justification of spending of public monies
  • Enabling the public to have an understanding of why decisions are made that effect their lives
  • Views expressed by others within the organisation, especially if the information to be release could impact upon other areas of the organisation
  • Endangering the safety of the public, e.g. vulnerable children
  • Health and safety, both physical and mental
  • In relation to CMR’s or chid deaths there may be surviving siblings or other family members who would suffer as a result of certain case details being released
  • Releasing or disclosing some information may have wider implications
  • Consider the wider implications of the response, either to release in part or full or withhold completelymay be considerednewsworthy or result in criticism, embarrassment or a negative public image of the organisation.
  • Please note if the disclosure or withholding of information may be ‘newsworthy’ it is important to speak with PR contact to advise that there is the potential for an issue regarding the response to a FOI request.
  • When a qualified exemption is applied to all or part of the information requested and the PIT is used, the balance of the test and the factors for and against, must be explained to the applicant.
  • Care must be taken in advising the reasons for and against as this in itself could make it possible for the applicant to identify particulars relevant to the withheld information.
  • Overall, the main factor to be considered is whether the balance of the public interest test favours the disclosure or withholding of the information requested either in part or full.

The Duty to Confirm or Deny

In some cases to confirm if the SBNI holds this information could be damaging, i.e. in some CMR’s.

In relation to cases for ‘neither confirm nor deny’ (NCND) the balance of the PIT must favour the withholding of the information, see 4.6

The decision to give a NCND response can depend on how the request is worded. Please refer to the FOI Act 2000 or the ICO website for more information.

Redaction

In certain circumstances some of the information requested can be withheld if it falls under exemptions or special conditions and some of the information can be released after the sensitive data has been redacted.

The following are guidelines only and are not exhaustive;

  • Retain a copy of the original document
  • Retain a copy of the redacted document
  • The redaction should not be reversible
  • Printed text can still be visible after a black pen or correction fluid has been used.
  • Cut out redacted words, if this is an original document photocopy first then cut out redacted information.Then photocopy the edited document and release that copy as the redacted response to the request.
  • Sometimes possible to recover an earlier version of the document.
  • Ensure redactions sent electronically are saved to a new document as a PDF before sending.
  • When redacting names it may still be possible to indicate their role e.g. Social Worker, family member
  • Indicated where the information is being removed from on the document
  • Indicate which exemption is being applied and where in the document the redacted information is located. It is important to do this if different exemptions are being applied to a different section of the information contained in one document.
  • Ensure that the information is understandable, there is no point in releasing a document that has been redacted and the only words left do not make sense when put together for example, conjunctions - ‘and’, ‘or’

Fees

  • If the fee is over £600 the request can be refused.
  • The applicant can be asked to reduce the remit of the request for information.

The Decision

Refusing a request

  • A request for information can be refused
  • If it would be cost too much to produce the information
  • This decision must be made before the work to compile the information is carried out
  • The following must be taken into account when working out the cost of complying with the request:

Does the SBNI hold the information?

Time required to locate information

Retrieving the information

Extraction of relevant information

Total costs off all requests received within 60 days from the same person or organisation.

  • It would take staff too much time to compile the information

The request is repetitive and from the same person

A request can be refused if it is identical or positively resemble a previous request by the same person

A request on a related subject cannot be refused

  • The request is vexatious

How much work is involved in complying

The tone and manner of the communication

Does the request seem obsessive?

Is there any value in the request?

If a request is vexatious the SBNI does not have to comply or NCND in this instance

Processing the outcome

  • When the information requested does not require the attention of the Data Controller the response will be completed and approved by the Data Guardian handling the request. This includes requests for information:

That has already been published by the SBNI

Is accessible on the SBNI website

Relating to a subject that the SBNI does not deal with e.g. diabetes, stopping smoking, leaning disabilities. In such instance the Data Guardian may point the requester in the right direction e.g. to the PHA or local Health and Social Care Trust.

  • Where it becomes clear that the information requested is complex the response must be shared with the SBNI. The Data Controller will approve such information requests on behalf of the SBNI.
  • If an information request is refused then the applicant must be advised of the internal review procedures.
  • Please note thatif theData Controller and Reviewerare involvedin the initial process they cannot be involved in any subsequent request for an internal review.
  • The Data Guardian will manipulate the data into a standard response letter:

The response letter will then be signed by the person actually making the decision.