Freedom of Information Act
Thursday, 15th September 2016
The Freedom of Information Act 2000 ("FOIA") provides the public access to information held by public authorities. There are however a number of points that one should consider when considering requests.
Are you actually a "public authority" and therefore subject to the FOIA?
The FOIA covers any documented information that is 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.
Section 3 of FOIA provides the definition of what constitutes a "public authority".
- Subject to the additional points below, a public authority is any person or body listed in Schedule 1 of the FOIA. Schedule 1 names or lists the authorities by description.
- Bodies may be added to, or removed from, the Schedule 1 list by the Secretary of State pursuant to Section 4, where a public body has ceased to exist or a new one has been established.
- The Secretary of State may, by order, designate a public authority under Section 5 where it appears that the body exercises functions of a public nature or is providing services under a contract that is a function of that authority.
- A publicly-owned company is subject to FOIA under Section 6. For instance, Northern Ireland Water is a wholly public-owned company of the Northern Ireland Government and therefore subject to FOIA.
When determining whether your company is subject to the FOIA, you should consider whether you are listed in Schedule 1 of the FOIA, if you are a publicly-owned company or whether you have been subject to subsequent orders to bring your company within the FOIA.
Concerns around information disclosure may impact business.
Remember, the FOIA allows the public to see any information held by public authorities regardless of the source of that information (unless an exemption applies).
If you are a public authority entering into dealings with a purely commercial (think supply chain), non-public authority, for the purposes of the FOIA, (a "non-authority") you may have to deal with commercial concerns surrounding information disclosure. Due to their lack of contact with FOIA requirements (and other disclosure concerns), non-authorities will quite often be keen to ensure that their business information remains confidential and that disclosure is only allowed following consultation with the particular non-authority.
Public authorities entering into dealings with non-authorities will of course need to contractually safeguard themselves to ensure compliance with the FOIA (i.e "where required by law") and allow disclosure of all necessary information, even if this relates to the non-authority's internal business operations.
Furthermore, public authorities should strongly consider including a discretionary contractual ability for the authority to disclose information. This step reduces the risk of a dispute with the non-authority in relation to whether an exemption could or should have applied to the disclosed information. That is, the non-authority will have no room to argue that the public authorities disclosure was not strictly "required by law".
Regardless of any discretionary ability to disclose information, it is always wise for public authorities to understand the potential exemptions under the FOIA that may apply in any given situation, in order to reassure non-authority business partners and to remain confident in their legal compliance.
The following are just some of the common exemptions under FOIA that may be used by public authorities to justify non-disclosure of information (please seek legal advice prior to relying on any exemptions).
Section 43(1) and (2); the information constitutes a trade secret or disclosure prejudices commercial interests of any person (including the public authority holding it).
Section 41; the information has been provided in confidence and disclosing it to the public would constitute a breach of confidence.
Section 42; the information is subject to legal professional privilege.
Return of information
You should also be aware that non-authorities may wish to contractually request that information is returned after the use/purpose for which it was provided to the public authority. This may be an important safeguarding step for non-authorities, as information that may be considered confidential today may not be so say in 6 or 12 months.
The final decision to disclose
Ultimately, the duty to comply with the FOIA is that of the public authority, who also makes the final decision on disclosure. In doing so the public authority may need also need to apply what is known as the 'public interest test'. The public authority may be required to disclose information in spite of an exemption, where it is in the public interest for the public authority to do so.?
This article was written by Elton Cotton and Bronwen Jones.