HR conference for school leadersFreedom of Information Act requests

Freedom of Information Act RequestsRos Foster, Partner, Browne Jacobson LLP11 October 2016

Information Law – How is it relevant?• Every piece of recorded information may be

disclosable on request• The fact that disclosure may be inconvenient or

embarrassing is no defence – generally information will be disclosable unless an exemption applies

• Information legislation imposes requirements as to the use and storage of information

Real requests?• What plans are in place to protect the town from a

dragon attack?• Please list all types of animals you have frozen since

March 2012 including the type and quantity of each animal?

• How much money has the Trust spent on pornography in the last twelve months?

• How many holes in privacy walls between cubicles have been found in public toilets and within council buildings in the last ten years?

• How many bodies are there in mortuaries that have been unclaimed for ten years?

Requirements of a valid requestA valid request must:1. be in writing2. provide a name and address for correspondence3. provide a reasonable description of the information

requestedIf valid, a request must be dealt with promptly an in any

event within 20 working days

Calculating 20 working days• Need to consider 2 deadlines• S10 FOIA says “promptly” and in any event within 20

working days• Working Days usually means Monday to Friday• For Schools 20 working days means School Days• Teacher Training Days/Inset Days not School Days• Long stop date of 60 working (Monday to Friday) days• Calculate 20 school days and then calculate 60

Monday to Friday working days• Must respond within the earlier of the two deadlines• Especially important during school holidays

FOIA – Practical considerations• FOIA relates to information held at the date of the

request• No obligation to create information to respond to a

request• The right is to ‘information’ not specific documents

(although caution is required in relation to some information such as receipts)

• FOIA applies to information held by third parties on behalf of the school such as contractors

• Remember FOIA is tantamount to disclosure to the whole world – care is therefore required when disclosing information

Duty to confirm or deny• Once it is established that the request is valid and the

information is held the next obligation is to consider whether to confirm or deny that you hold the information

• Some exemptions allow you not to confirm or deny where to do so would impede the operation of the exemption – so for example where a request is made for copies of complaints about an individual to confirm that complaints have been made would indicate that they exist

Responding to a request – things to considerIs the requester requesting information about themselves? (if

so, this is a SAR and must be dealt with under DPA)Does the school hold the information?

1. Is it already in the public domain or intended to be published?

2. Is the information available by other means, including by way of the school’s publication scheme?

3. Will it take more than 18 hours/£450 to locate? 4. Is the request repeat or vexatious? 5. Is the request unclear or very wide?6. Prima facie the information will have to be disclosed

unless one or more of the statutory exemption(s) apply(ies)

FOIA - ExemptionsThere are two types of exemptions. Absolute and Qualified.

• Most of the exemptions provided by FOIA are “qualified”, meaning that even if the exemption is engaged, the information requested should be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it

• Absolute exemptions are just that and the public interest test does not apply

• Often more than one exemption is engaged. Where this is the case, where practicable, set them all out.

Absolute ExemptionsThe absolute exemptions provided by FOIA are:

• Section 21 (information accessible by other means)• Section 23 (security matters)• Section 32 (Court records)• Section 34 (parliamentary privilege)• Section 36 (in relation to information held by the House

of Commons and House of Lords)• Section 40(1) (subject access requests)• Section 40(2) (where disclosure to the public would

contravene any of the data protection principles)• Section 41 (information provided in confidence)• Section 44 (disclosure prohibited by any enactment)

Qualified ExemptionsThe qualified exemptions provided by FOIA are:

• Section 22 (information intended for future publication)• Section 24 (national security)• Section 26 (defence)• Section 27 (international relations)• Section 28 (relations within the UK)• Section 29 (the economy)• Section 30 (investigations and proceedings conducted by public

authorities)• Section 31 (law enforcement)• Section 33 (audit functions)• Section 35 (formulation of government policy)• Section 36 (prejudice to effective conduct of public affairs)• Section 37 (communications with Her Majesty)• Section 38 (health and safety)• Section 39 (environmental information)• Section 42 (legal professional privilege)• Section 43 (commercial interests)

The Public Interest Test• There is no definition of ‘public interest’ in FOIA (or in

any other piece of legislation)

• Guidance from the IC says that it is something which serves the public interest. It is not something which the public is interested in

• A qualified exemption can only apply where the public interest in maintaining an exemption outweighs the public interest in disclosing it or confirming or denying it is held

Public Interest Test – relevant factors to consider• Promoting transparency and providing the full picture• Promoting public understanding• Ensuring good decision making and standards of

integrity are upheld• Ensuring justice and fair treatment for all• Ensuring best use of resources and fair competition• Remove suspicion of wrongdoing

Public Interest Test – irrelevant factors• Technical or incomplete information• Poor record keeping• Embarrassing Information• Identity or motives of the requester (unless the

request is vexatious)• Private interests• A risk that the information will be

misunderstood/misused

Relevant exemptions• Section 21 – Information accessible by other means• Section 22 – Information intended for future

publication• Section 36 – Prejudice to the effective conduct of

public affairs• Section 40 – Personal Information• Section 41 – Information Provided in Confidence• Section 41 – Legal Professional Privilege

Section 21 Information Accessible by other means• Absolute exemption so consideration of the public

interest test not necessary• Ensures that the school does not become a first choice

source of information which can be obtained elsewhere

• Exemption applies even if the requester will have to pay a fee to access the information

Section 22 Information for future publicationA public authority has an obligation to proactively publish information

through a publication scheme (S19 FOIA)‘Publication’ means information addressed to the public at large or a

section of it. It includes announcements, press releases, speeches, interviews, articles, policies etc.

S22 protects an authority in ensuring that individual requests do not dictate publication timetables or force publication prematurely

To rely on the exemption three criteria must be met:-(a) information must be held with a view to publication (there need

not be a set date at the time of the request)(b) the intention to publish must exist at the time of the request(c) it must be reasonable in all the circumstances for the information

to be withheld until the future date of planned release

S.22 Applying the Public Interest TestThe public interest in this exemption relates to when the

information will be publishedThe further away the publication the harder it is to rely on this

exemptionThings to consider when applying the public interest test:(a) Will there be a detrimental effect if the information is

published early e.g. will publishing give rise to unnecessary public concern

(b) Is simultaneous disclosure possible(c) Would disclosure affect any pre publication procedures(d) Would disclosure affect any publication procedures(e) Have any previous undertakings being provided in relation

to the release of the information

S36 (2) Prejudice to the effective conduct of public affairs• Recognises need for public authorities to have “safe space”

in which to discuss difficult/controversial/sensitive issues and options

• Applies to information, the disclosure of which would inhibit or be likely to inhibit, the free and frank provision of advice, the free and frank exchange of views for the purposes of deliberation or otherwise prejudicial

• Opinion of “qualified person” required• Qualified exemption – must consider public interest

S36 (2) Applying the public interest testWould disclosure:• inhibit the free and frank exchange of views and opinions• inhibit consideration and debate of a full range of options• deter the giving of adviceIf yes, then disclosure may not be in the public interest

Or would disclosure• facilitate public participation in the formulation of policy• provide assurance on how decisions are taken• inform public debate• justify large scale expenditure or a departure from routine or

standard practiceIf yes, disclosure may be in the public interest

S40 (2) Personal Information• One of the more complicated exemptions in FOIA and where

FOIA and DPA have the greatest interaction

• Allows for third party personal data to be withheld where to disclose would result in breach of one or more data protection principles

• Usually results in redaction as opposed to total refusal

• Fairness of disclosing information about senior staff generally assumed – greater protection for more junior staff

• Distinction drawn between personal and public/professional life

S40 (2) Applying the public interest test• The exemption is absolute so strictly the public

interest test does not need to be applied

• BUT whether the information can be released will depend on whether the release will interfere with the rights of the data subject, the data protection principles or whether one of the exemptions contained in the DPA can/needs to be relied on

• Some of this analysis requires an examination of the public interest

S40 examples• A Hospital Trust was asked to disclose the names, job titles,

departments and specialty of all Band 7 and above managers and staff employed by the Trust. All disclosed bar names – withheld under S40(2)

• Request of a public authority for all the names and direct telephone numbers in a department – all but the most senior withheld under S40(2)

• A Trust was asked how many staff had been sacked or disciplined regarding the treatment of a patient whose death was referred by a Coroner’s Court. Refused to confirm or deny pursuant to S40(5)

• Request for the internet usage of 3 named members of staff – withheld under S40(2)

• Request for the highest amount paid under a redundancy package - withheld under S40(2)

S41 Information provided in confidence• Absolute exemption, no need to consider public

interest• Must be obtained from another party in circumstances

which would give rise to an actionable breach of confidence – not terms of a contract negotiated between two parties

• If publication in the public interest then disclosure permitted. Therefore consideration of the public interest required

• Must show that the actionable breach would succeed not just that it is arguable

• Substance not form will determine whether confidential

S42 Legal Professional Privilege• Applies to any legal advice received by the school

• Qualified exemption – must still consider public interest in disclosing

• Need not confirm or deny if to do so would give rise to information that could be used to base a claim (i.e. fact that you obtained legal advice means there could be grounds for a claim)

S42 Applying the public interest testPublic interest in maintaining exemption usually substantialFactors in favour of maintaining privilege

• Schools must be able to make decisions in a fully informed legal context. Such advice can only be given where lawyers have all relevant information

• Lawyers must be able to present the full picture including strengths and weaknesses of a matter and arguments against a particular decision

• Disclosure of legal advice may prejudice the school’s ability to protect and defend its legal interest

S43 Commercially sensitive information• Applies to information, disclosure of which would or would

be likely to, prejudice the commercial interests of any person – this includes schools and any third parties the school does business with such as consultants and contractors

• Must be able to show risk of real and significant prejudice, not hypothetical possibility

• Relates to commercial, not financial, interests• Consider context, nature of market etc.• Qualified interest – sensitivity deemed to decline over time

and once contract has been awarded• Consider whether the information was obtained in

confidence

Redaction and Extraction• Exemptions may apply to only part of the information

that has been requested such that some information will still need to be disclosed. It may be that only the pricing schedule of a contract is commercially sensitive, for example, or that only certain sections of a report contain personal data

• In those circumstances, the information to be withheld should be redacted if possible

• On occasion, exempt information is inextricably linked with that which can be disclosed. In those circumstances the safest course may be to extract the non-exempt information into a separate document.

• The right under FOIA is to information not documents (although some care is required here)

FOIA – Can I charge?• It is generally not possible to charge for responding to

FOIA requests• An exemption is available if the cost of dealing with

the request, in terms of identifying, locating and providing the information, would exceed the prescribed amount – currently £450, calculated as 18 hours at £25 per hour

• Cannot charge for considering whether an exemption applies or redacting the information

• If the school estimates that this limit is likely to be exceeded, it may decline to deal with the request

• Alternatively it can offer to provide the information but charge the requestor for the costs incurred in doing so. If the requestor agrees to meet those charges you must proceed.

Vexatious / Repeat requests• S14 FOIA allows authorities to decline to deal with

requests on grounds that they are vexatious or repeated

• The repeat exemption will apply where the authority has received a previous request that is the same or substantially similar

• The vexatious exemption applies in respect of requests that are vexatious and will require you to consider the identity and motivation of the requestor.

Complaints to the ICOA requester may complain to the ICO if:

• the response took longer than 20 days• information was withheld and they believe that an

exemption(s) has been wrongly applied• the calculation of any costs contravenes the Fees

Regulations• the school has in some other way mishandled the

request

EnforcementFOIA is regulated by the IC• She cannot impose a fine in respect of the handling of an

individual FOIA request. If a complaint to her office is upheld she will publish a decision notice on his website and can order the school to disclose the information in question to the requester

• If the IC becomes concerned about the general performance of the school in meeting its obligations under FOIA, she may monitor the school for a set period before deciding whether to exercise any of her other powers in respect of the school

• The ICO’s principal enforcement powers under FOIA are the issue of a decision notice requiring disclosure and an enforcement notice. The latter is very rarely used.

Offences• The IC has wide powers of entry and inspection and it

is a criminal offence to obstruct any of her officers in the exercise of those powers

• More generally, it is a criminal offence to alter, deface, block, erase, destroy or conceal any record with the intention of preventing the disclosure of information to which the requestor would otherwise have been entitled

• The offence applies where a request has been made for information and the requestor would have been entitled to that information either under S1 FOIA

• The offence is punishable with a fine of up to £5,000 in the Magistrates’ Court

Do’s• Respond quickly to requests and within the 20 working day

time limit• Remember the school is obliged to provide advice and

assistance to the requester• Apply the public interest test where necessary and explain

how it has been applied• Think about the wider implications of disclosing or

withholding information and the need to inform any stakeholder

• Consider the readability of your reply; use plain English, good grammar and avoid abbreviations and jargon

• Offer an internal review.

Don’t• Try and withhold information without clear justification

under one or more of the exemptions or exceptions allowed

• Wilfully destroy or alter any documents that are the subject of a request. Under the legislation this is a criminal offence for the individual responsible.

• Destroy records outside of the retention schedule within the school’s Records Management Policy

Any questions?

Further information www.brownejacobson.com/education

Contact us

Ros Foster0207 337 1015 ros.foster@brownejacobson.comwww.brownejacobson.com/education

Please noteThe information contained in these notes is based on the position at March 2016 . It does, of course, only represent a summary of the subject matter covered and is not intended to be a substitute for detailed advice. If you would like to discuss any of the matters covered in further detail, our team would be happy to do so.

© Browne Jacobson LLP 2016. Browne Jacobson LLP is a limited liability partnership.