FOIA at UEA - Implementation FOIA Contact Training 14 February 2005
Mar 28, 2015
FOIA at UEA - Implementation
FOIA Contact Training
14 February 2005
Overview of Session
Section1 - Review of FOI Act Work & Information so far
Section 2 – Responsibilities and Accountabilities Who does what?
Section 3 – Handling Requests How do we do it?
Objectives of Day
Understand basics of FOI Act Understand & agree responsibilities and
accountabilities Detailed & directed guidance on handling
requests Information on exemptions
Review – Work to date
Objectives of Act Openness, accountability, credibility, culture
change Obligations under the Act
Responding to requests for information held Confirm or deny existence of information Provide information
Publication Scheme
Review – Work to date
Basic features of Act What is a request
In writing & legible Name & contact details of applicant Clear enough to identify what is sought No need to mention FOIA
Request received from anyone, anywhere Manner of receipt - via web, via mail, email, in person
Review – Work to date
Basic features of Act How do we respond?
Provide advice & guidance Distributed responsibility for handling requests Assess ‘normality’ of request Referral to FOIA contact and/or IPO Acknowledgement of receipt – IPO Assess & apply exemptions & fees Provide information within 20 working days Release information in form of applicant’s choice
Responsibilities and Accountabilities Code of Practice for Responding to Requests
Background & basis of Code s.45 FOIA, Lord Chancellors Code Imperial College work Approved by Information Framework Project Board
Provisions of Code UEA approach to FOIA Organisation of FOIA administration Guidance on responding to requests
Evolutionary approach
Who does what? (1)
UEA Organisation
All UEA staff
Frontline staff
Faculty/Division Contact
UEA Information Policy Officer
Who does what? (2)
Information Policy Officer Recommend Policy & Administer Policy Administration of Requests
Communication with requesters Determination of Exemptions & Fees Preparation of documents / redaction Release of information within time frames
Staff awareness & training Maintenance of Publication Scheme
Who does what? (3)
Faculty / Division Contacts Ensure application of policy within Faculty/Division Assist in the administration of Requests
Assist in determination of status as valid FOIA request Location and production of documents Assist in determination of Exemptions & Fees Assist in preparation of information for release
Assist with maintenance of Publication Scheme
Who does what? (4)
UEA Staff Know basic responsibilities under Act & act
accordingly Redirection of email (ie. Possible requests) Responding to normal requests Referral of possible FOIA requests to FOIA
Contacts
Workflow – a reminder
Receipt of request Assessment of request Determination of work/location/fees Communication with requester Locate/produce documents Assessment of information (eg. Exemptions) Preparation of information/summary Release of information
Exercise
Winding our way through workflow Examination of workflow of request Assignment of responsibility for actions
IPO, Contact, Staff
Discussion of workflow – does it work for you?
Workflow
Does the request mention the Freedom of Information Act?
Forward the request immediately to FOIA Contact (Stage 2)(copy in UEA Information Policy Officer)
Do you (or your team) have the information requested?
Do you wish to answer the request?
Are you certain there are no other problems with releasing the information? e.g. personal data, confidential information, commercially sensitive?
Answer the request as part of normal UEA business
Yes
Yes
Yes
Yes
No
No
No
No
Requests for Information : Stage 1 - Dealing with Incoming Requests
UEA Information Policy OfficerLibrary01603 [email protected]
Workflow (2)Requests for Information : Stage 2 – Assisting applicant & assessing request
Does the request fulfil the requirements of the Act?
Assist the Applicant
Yes
No
Would the part or all of the request best be handled by another Public Authority?
Estimate fees and inform applicant, if necessary.Proceed with the request?
Forward part or all ofrequest to other PA
Yes
No
UEA Information Policy Officer to work with relevantDivision(s) to locate and retrieve the information
Check for exemptions (Stage 3)
Yes
No
Contact Applicant (Stage 5)
Workflow (3)Requests for Information : Stage 3 – Checking for exemptions
Does an absolute exemption apply?
Contact Applicant with appropriate response (Stage 5)
Consider duty to confirm or deny
No duty to disclose information Disclose
No
Yes
Does a qualified exemption apply?
Consider Exemption (Stage 4)
No Yes
Absolute ExemptionsInclude:Already PublishedPersonal DataNational SecurityCourt RecordsReceived ‘in confidence’
Does the information match the request?
No
Yes
IPO to re-contactdepartment(s) for allfurther information.
Workflow (4)Requests for Information : Stage 4 – Applying Qualified Exemptions
Would releasing the information:a) Threaten health & safety of any individualb) Commercially disadvantage UEAc) Prejudice prevention of crimed) Reveal information covered by DPAe) Possibly be covered by another exemption
Is releasing the information in the public interest?
Contact Applicant with appropriate response (Stage 5)
Where appropriate consult with department(s) orthird parties to assess if an exemption applies
No
Yes
No
Yes
Withhold information
Workflow (5)Requests for Information : Stage 5 – Responding to the Request
Is any information being released?
Contact applicant.Inform them of Complaints Procedure
No
Check the required fee has been paid
Ensure that letter to applicant covers:• Any partial disclosure is explained• If part of request has been passed to another Public Authority • Any exemptions are explained
Yes
Assess if the required method of providing theinformation can be achieved (e-mail, hard copy, in person etc)
Tracking requests
Tracking system required for audit, management Low tech solution initially (ie. Excel spreadsheet) Single entry point initially Essential components
Information about requester (name, contact) Information about request (when, who, where…) Logging of actions/correspondence Dates of actions Bring forward functionality
Advice and guidance – Initial
Obligation – make ‘reasonable’ efforts to person who has made, or proposes to make request
Underlying philosophy to maximize information available to public
Early, frequent communication important but no requirement to follow up if no response
Advice & guidance can be given at any point
Advice and guidance - Initial
When should initial advice be given? Clear request is intended Invalid request due to insufficient or unclear
information Refusal due to cost Person with difficulties in making request Need to advise applicant of rights
Advice and guidance – Initial
What is reasonable? Usual customer service standards Examples
Advising of progress & of rights Assisting in focussing of requests Advising of existence of information elsewhere Transcription of voice call + confirmation Provide outline of information held Access to catalogues/indexes
Advice and guidance - Ongoing
Extension (nb. Clock started) Can inform of more time needed IF public interest test needed Must give estimate of extra time required & must be able to
justify to ICO Other legislation – advise if request under other
legislation Refusal - Exceed cost limit, exemption Further clarification/modification Fee matters Disclosure issues Information held elsewhere
Advice and guidance – 3RD Party
Duty to inform of UEA obligations in advance Amendment to contracting practice Option to inform of release of 3rd party data UEA approach
Communication to contractors Contractual terms amended in ITTs Notification of release of information
Exercise
Advice and guidance – when, who from, and how
Sheet with examples Discussion & dialogue
Response Time
Base time – 20 working days Working day = non-statutory holiday day Clock starts:
Day AFTER receipt of the request Day authority receives information necessary to identify & locate
information (but don’t delay) Date of receipt of transfer from another authority
Receipt of request is when: Delivered, or received in ‘inbox’ (email) Where re-direction of email exists, date is delivery to alternative
address
Response Time
Extensions/suspension of clock Fee requests (clock restarts where stopped
when fee received) NOT because information voluminous where public interest needed to be applied school holidays (but not HE or FE)
Response Time
Good practice Separate email address for FOI requests Use of automated out of office notices with
alternative addresses Alternative addressee aware of FOIA! Acknowledgement of requests
And if we don’t respond in time? Breach of s.10; if complaint by requester... ICO decision notice; Enforcement notice
Fees
Fee is discretionary Fee can be imposed if cost is over ‘appropriate limit’ to
locate, retrieve, extract information Appropriate limit = £450 / 18 hours @ £25/hour Limit not for exemption assessment or communicating
with applicant No obligation to respond if appropriate limit exceeded Disbursements charged back always UEA policy is no response if request over appropriate
limit ; not to charge disbursements if very low
Exemptions
Presumption of disclosure but exemptions to disclosure permitted or required under Act
23 separate exemptions 2 types of exemption
Absolute – 8 exemptions Qualified – 15 exemptions
Absolute Exemptions
No right to know, exempt information not subject to public interest test
Absolute Exemptions of interest S. 21 - Information already accessible S. 40 - Personal data S. 41 - Confidential information
S. 21 – Information already accessible Overview - information must be
‘reasonably accessible’ to applicant Factors affecting accessibility
Information itself – format, organisation, holdings
Applicant – legal status, skills, disadvantage
S. 21 - Information already accessible Examples
Information within Publication Scheme Statutory duty to release (eg. Annual reports) Published research
Most of this material will be released without reference to Act
S. 40 – Personal Data
Overview – s.40 exempts information: That is personal data of the applicant, (Part 1) or, Personal information of others where release would
contravene data protection principles (Part 2) or, Personal information that no-one can see
Applies to ‘personal data’ within meaning of DPA – identity of applicant critical
DPA ‘supercedes’ FOIA; ‘referral’ section Duty to confirm or deny covered by s.40
S. 40 – Personal Data
3rd Party data Exempted if release contravenes data protection principles
8 point statutory code, Part 1, Schedule 1, DPA First principle most relevant – information processed fairly & lawfully
subject to conditions
Factors in assessing contravention of ‘fairness’ principles How information obtained Expectations of data subject Effect of disclosure on data subject Content of information Public interest in disclosure
S. 40 – Personal Data
3rd Party data – disclosure allowed where: Data subject agrees Disclosure contractually required Compliance with legal obligation of data
subject It protects vital interest of data subject Administration of justice, functions of Crown,
public interest functions
S. 41 – Information in Confidence
Exempt from disclosure if: Release would result in breach of confidence
action in common law by anyone Information is obtained from any other person
Applies to information from another public authority
Covers duty to confirm or deny
S. 41 – Information in Confidence
‘Confidentiality’ due to agreement or nature of information or method of acquisition
‘Actionable’ includes success of action Need for legal interpretation of law of
breach of confidence Need to consult 3rd parties (LC Code)
S. 41 – Information in Confidence
Is it confidential? Factors to consider are: Must be worthy of protection and not in public domain Existence of express agreement by public authority
(BUT agreement must be necessary to exercise function, must be confidential, justifiable to ICO)
Is information is clearly, by its nature, confidential (eg. Medical records)?
Is protection of similar information longstanding, consistent & well-known practice?
Public interest test
S. 41 – Information in Confidence
Public Interest test for ‘in confidence’ Breach not ‘actionable’ if public interest in
favour of disclosure Public interest must be specific; no general
interest in breach of confidence Authority & requester interests irrelevant Test is also ‘What would a court say?’
S. 41 – Information in Confidence
Public interest factors favouring disclosure Revelation of misconduct/mismanagement of funds Revelation of bad value contract Correction of untrue statements/acts by public authority No harm thereby – ‘old’ information
Public interest factors against disclosure Risk to public or personal safety Damage to public administration Contractual or professional obligations Negative effect on supply of important information
Exercise
Absolute Exemptions – what exemption, issues to consider
Sheet with possible requests Discussion & dialogue
Qualified Exemptions
Public interest test applies Must assess if public interest better served by disclosure
than by non-disclosure Presumption that public interest served by disclosure Must be ‘public’ interest, not ‘private’ interest What is the ‘public interest? - Factors to consider are
Furthering understanding & participation of public Promoting accountability & transparency in/for decisions and for
spending Furthering understanding of decision by public Revealing health & safety information Contribution to scientific advancement Assist in access to justice &/or fundamental rights
Qualified Exemptions
Examples Section 22 – Future publication Section 31 – Law enforcement Section 37 – Health and Safety Section 39 – Environmental Information Section 43 – Commercial interests
S. 22 – Future Publication
Information exempt if: Information held with a view to future publication by
anyone in future Intent to publish exists at time of request Reasonable to withhold until publication
Intent of FOIA is not to force premature publication
Cannot use future publication unreasonably
S. 22 – Future Publication
Publication includes: speech, writing, programme or other
communication press releases, announcements, bulletins, CDs, videos, books, journals, newspapers, consultation papers, reports, research,
statistics, TV or radio broadcasts
S. 22 – Future Publication
‘View to publication’ must: have a firm intention to publish be in existence at time of request & continuing
Publication can be by anyone ‘Rejected’ or non-published information open to
disclosure Advancement of publication date is possible
even if reasonable to withhold til publication date
S. 22 – Future Publication
Public interest re publication is about timing Other factors re public interest:
Nature of publication timetable – close/distant Prejudicial effects of release/delay Fairness of release to applicant vis a vis others Pre-publication & publication procedures Pre-existing commitments re publishing
Good practice Have record of intention to publish (e.g. Publication Scheme,
contract) If public interest in favour of disclosure, publish?
S. 31 – Law Enforcement
Information is exempt if release would prejudice: Prevention of detection of crime Apprehension or prosecution of offenders Administration of justice Assessment/collection of tax or duty Civil proceedings by authority arising from Crown
investigation Only applies to information not exempted under
s.30 (ie. authority has prosecution responsibility)
S. 31 – Law Enforcement
Prevention or detection of crime information, or apprehension or prosecution of offenders - examples Intelligence about anticipated criminal activities Planned police operations, strategies & tactics Information whose release would facilitate the
commission of an offence Information whose release would prejudice fair trial of
any person
S. 31 – Law Enforcement
Public interest test factors re prevention or detection of crime information, or apprehension or prosecution of offenders: Degree & likelihood of prejudice Effect of crime on individuals, society and/or
economy Incremental effect of other disclosures
S. 37 – Health & Safety
Exempt if likely to: Endanger physical or mental health of any individual Endanger the safety of any individual
Key concept is risk of harm Wide interpretation of health & safety by courts Individual need not be identifiable; can be part of
distinct group of persons
S. 37 – Health & Safety
Physical or mental health includes Impairment, injury, illness, disease Recurrence, aggravation, acceleration, deterioration
of pre-existing condition Emotional & psychological well-being; not necessary
to be pathological Safety includes:
Protection from harm Freedom from danger
S. 37 – Health & Safety
Factors to consider are: Likelihood of endangerment Susceptibility of individual to harm
Examples of exempted information - disclosure would : Allow anyone, group, to be identified/located & then
targeted for attack Lead to anyone being threatened or harrassed Cause distress (eg. Graphic information about
deceased persons)
S. 37 – Health & Safety
Public Interest considerations Never in public interest to endanger health and safety Awareness of risk is in public interest Size & likelihood of risk Nature and seriousness of outcome Possibility that disclosure help health and safety of
others Danger could be managed by other means
S .39 – Environmental Information
Information covered by Environmental Information Regulations (2004) is exempt
Referral section – requests must be handled under EIR regime – no choice
DEFRA guidance forthcoming Request & information in any format
S. 39 – Environmental Information
Environmental information includes: State of elements of the environment Factors affecting or likely to affect environment Measures affecting or likely to affect environment, Reports on legislation Economic analyses within measures State of human health including food chain
Terms defined (eg. Air, land) broadly
S. 39 – Environmental Information
Specific ‘issues’ covered by EIR: GM crop trials, Pesticide testing, Diseased cattle,
Land use planning
Includes information held by, or for, authority Information can be in any format Information not limited by geography or time Further guidance forthcoming
S. 43 – Commercial Interests
Information exempt if it is: Trade secret If disclosed, would, or would be likely to prejudice
commercial interests of any person (including authority holding information)
Trade secret is Used in trade or business If disclosed, would cause harm Information over which the owner limits dissemination
and/or publication
S. 43 – Commercial Interests
Commercial interest is: Business, trade or profession Both as purchaser & supplier Ability to successfully participate in commercial
activity Not a financial interest (ie. financial position)
Any person is Company, sole trader, partnership or business
(i.e. 3RD party) Authority itself
S. 43 – Commercial Interests
Prejudice to commercial interests is: Damage to business reputation or confidence
in it Detrimental impact on commercial revenue Weakening of competitive position Existing at the time of request But NOT solely assertion of prejudice
S. 43 – Commercial Interests
3rd Party information factors: Terms upon which information given/received Expectations of 3rd party Relationship between 3rd party and authority Prejudice must be demonstrable Objection of 3rd party to release
S. 43 – Commercial Interests
Examples of exempt information: Research & plans for new product Manufacturing cost information Sales forecasts Plans – Marketing, Strategic business Relating to preparation of competitive bid Viability of company Information supporting application for license
S. 43 – Commercial Interests
Public interest test factors: Extent of prejudice / value of trade secret Existing public interest in disclosure of commercial
information Effect on future provision of information to authority &
therefore ability to fulfil role Effect on bargaining position during contractual
negotiations Effect on ability of individual to conduct commercial
transactions with authority Timing of commercial sensitivity
Exercise
Qualified Exemptions – what exemption, issues to consider
Sheet with possible requests Discussion & dialogue
Disclosure of Information
Format/manner Choice of applicant Reasonableness
Summary or document? Information to be released, not documents Excessive documents not in spirit of FOIA
Refusal of disclosure Whole or part?
Redaction – Print / electronic format Obligations / Protocol
Inform applicant of reason for non-disclosure Availability of appeal/complaint mechanism
Complaints
Mandatory under Act Internal review at first instance Proposed 2 stage internal UEA process Applicant has right to complaint to
Information Commissioner Office (s. 50) ICO has power to request UEA information
and issue notices to UEA If UEA doesn’t comply with notice, high court
proceedings for contempt possible
FOIA at UEA - Implementation
FOIA Contact Training
15 December 2004