Chapter 02: Your duty to answer requests for information
The new rights of access
The Freedom of Information Act provides greater access to information
held by public authorities in two ways:
by requiring public authorities to adopt and maintain a publication
scheme (Annex A); and
by giving individuals the right of access, on request, to information
held by public authorities.
There are two aspects to this general right of access:
the right to be told whether or not the public authority holds the
information; and
if that is the case, to have the information communicated to them.
These rights apply in respect of recorded information which is held by
a public authority.
Which bodies are covered by the right of access?
The Freedom of Information Act applies to information that is held by
a "public authority" and sets out which bodies and offices are
considered "public authorities" for the purpose of the Act.
The majority of these bodies are listed in Schedule 1 to the Act and this
includes bodies such as:
government departments (this includes Executive Agencies);
Parliament, the Northern Ireland Assembly and the National Assembly
for Wales;
the armed forces (but not Special Forces or units working with Government
Communications Headquarters);
local authorities;
NHS bodies;
the Police; and
wholly publicly-owned companies.
Bodies can be added to and removed from this list.
If non-departmental public bodies (NDPBs) which are legally separate
from their sponsoring departments are covered by the Act, they will usually
be listed separately in Schedule 1.
Further details on what is a 'public authority' can be found at Annex
B.
What information is covered by the right of access?
All recorded information held by a public authority is covered by the
right of access. "Holding" information includes holding a copy
of a record produced or supplied by someone else. The following are some
factors that may need to be considered before deciding whether the information
that has been requested falls within this category.
Some or all of the information is held by another public authority.
If some or all of the requested information is not held by the authority
that has received the request but it appears that it might be held by
another public authority then it may be necessary to transfer the request
to the second authority. Further information can be found in the chapter
on transferring requests.
Information that is held on behalf of someone else.
If a public authority only holds information on behalf of someone else,
for example a department holding Trade Union information on their computer
system, then that public authority may not have to provide the information
in response to a Freedom of Information Act request. Whether information
is held on behalf of someone else is a difficult question and will depend
on the precise circumstances involved. If you are dealing with a request
and you think that the relevant information may only be held on behalf
of someone else then it is important to seek advice.
Information, not documents. The Freedom of Information
Act entitles individuals to have access to information and not to documents.
It may often be the case that the easiest way to provide the information
is to supply a copy of the relevant document since a document may contain
the information that has been requested. However, it may also contain
a great deal of other information. Special provisions apply where the
request asks for information to be provided in a particular form, for
example, by sending the applicant a copy of the information.
Recorded information. The right of access applies
to information recorded in any form. This includes:
information that is held electronically (such as on a laptop computer
or an electronic records management system);
information that is recorded on paper (such as a letter, memorandum
or papers in a file)
sound and video recordings (such as a CD or video tape);
It will even include notes that have been written in the margins of a document, note pad or post-it note.
Increasingly, government records take the form of emails. It is the responsibility of all members of staff to manage their email messages appropriately. This means staff must identify email messages that are records of their business activities and those that are not.
It is important that email messages that form part of the official record are saved for as long as business needs require and are moved from email accounts and personal folders and stored corporately in accordance with departmental record management procedures.
Email messages that do not form part of the official record should be managed within the mailbox in the short term but permanently deleted when no longer required.
Stored information
The right of access also applies to information that is in storage,
for example if it is in the public authority's filing systems or an
out-sourced records unit. There are special provisions concerning information
that has been transferred to the National Archives or a similar place
of deposit.
You should ensure that you have access to all of the information held
by your authority which has been requested by the applicant before making
any decision on release. You should ensure that all information is requested
from your authority's registry, or any out-sourced records storage,
in good time to allow you to respond to the request in its entirety
within 20 working days.
Different rules apply in relation to information which has been transferred
to The National Archives by a department. Any information in The National
Archives is deemed to be held by The National Archives.
Therefore, the decision on releasing material rests with The National
Archives who will consult the department which placed the material there
where this is required by the Act.
If information is held by The National Archives you should:
respond to the applicant, stating that your authority does not
hold the information but that it has been transferred to The National
Archives, and
Recommend that they make a new request to The National Archives.
Postal enquiries to The National Archives should be directed to:
Reader Information Services Department
The National Archives
Kew, Richmond
Surrey
TW9 4DU
Information that has been deleted or amended.
The right of access to information under the Act applies to information
held by your public authority at the time that the request is received.
If it appears that requested information has been deleted or amended,
it is important to identify:
whether the information was deleted or amended before the request
was received; or
whether the information was deleted or amended after the request
was received.
Information that was deleted from the system before the request was
received
Instructing a computer to delete a particular item may not result in
the item being destroyed immediately. At least for a period, the information
might still be retrievable albeit with substantial cost and disruption
to the system. However, where it is the intention that data should be
permanently deleted, and this is not achieved only because the technology
will not permit it, authorities may regard such data as having been
permanently deleted. This information is no longer considered to be "held" by
the authority and does not have to be retrieved or provided in response
to a request.
This approach is not justified where the information has only been temporarily
deleted and is stored in such a way that it could easily be recovered,
for example from the Deleted Items folder in Outlook. This information
is still considered to be "held" by the Department and may
have to be provided if a request is received.
Information amended before a request was received
It is possible that you will hold multiple versions of a piece of text.
If you are in any doubt about which version or versions should be
disclosed, you should consult your FOI practitioner.
Information that is deleted or amended after the request was received
Information held by an authority must not be deleted or amended in order
to avoid complying with a FOI request. Altering, defacing, blocking,
erasing, destroying or concealing information in order to avoid providing
it in response to an FOI request may constitute a criminal offence under
section 77 of the FOI Act for which the person convicted will be held
personally responsible.
If requested information is deleted from any computer, hard copy records
management system or electronic filing system in line with the authority's
standard records management practices after a request is received, the
information is not considered to be held by the public authority. This
will only apply if it can be shown that the person who made the deletion
had no knowledge of the request and that they were following standard
records management practice and timetables when they deleted the information.
Do you "hold" the information?
In some cases it may not be clear whether information which is physically
present on your premises or systems is properly to be regarded as "held" by
your public authority. Examples include:
private material brought into the office by Ministers or officials;
material belonging to other people or bodies;
Trade Union material;
constituency material; and
material relating to party political matters.
If you are in doubt about whether your public authority 'holds' material
which is on your premises or systems, it is essential to seek advice.
From time to time, you will receive requests for information which your
authority does not hold, but which may be held by another public authority.
You should let the applicant know that your authority does not hold the
information in question but the information may be held by someone else
and suggest they re-apply to the other public authority. When you respond
you must provide the applicant with contact details.
In certain circumstances you may decide to transfer the request to another
public authority. You must firstly consider whether the applicant is likely
to object to the transfer. If you conclude the applicant is unlikely to
object then you must get confirmation from the other body first that:
it holds the information; and
it is willing to accept the transfer before you do so.
The transfer must take then place as soon as is practicable. The transfer
must be noted on your FOI tracking log. You must also let the applicant
know that their request has been transferred.
