The Freedom of Information Act 2000 which came into effect in 2005 was outcome of the major electoral manifestations of the labour party in 1997. This Act confers public the privilege to ask questions from more than 100,000 government bodies.
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The Act is often flaunted by crusaders and other supporters as a vista into government and by government administrations as evidence of their pledge to transparency and accountability. However, in reality, how FOIA works is often far from the ideal criticism envisaged by either group.
The Freedom of Information Act aspires to make certain that transparency and openness within the public sector organisations. It permits members of the public to ask for information held by public authorities. Conversely, it does not put forward carte blanche availability to all information held by the public sector, nor does it offer a system for offering reasons as to how decisions have been arrived at. It supplies the requestor to have an account as to why the information which has called for cannot be furnished, where the information cannot be released or is not available. If the request is not specific, the information may not be released.
According to the Act, it offers new privileges to public to access to information withheld by public authorities. The application of Act is limited to England, Northern Ireland and Wales. For Scotland, a separate Freedom of Information Act will be applicable.
UK Information Commissioner is enforcing the U.K Act and the Scottish Act is being enforced by the Scottish Information Commissioner. A variety of other initiatives offering additional rights to information came into force at the same time:
More than 100,000 UK public authorities are being covered under the Freedom of Information Act, 2000. They are
- local authorities;
- central government agencies and departments;
- the National Health Services, including individual dentists, GPs, pharmacists and opticians;
- armed forces and police;
- educational institutions (colleges , schools and universities);
- The BBC, non-departmental public bodies, regulators, quangos, advisory bodies, publicly owned companies and Channel 4.
The intelligence services, tribunals, courts and security are not covered by the Act.
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The Freedom of Information Act, 2000 has the following salient features:
- Came into effect from 1st of January 2005,
- Has a vast implication on the Public Sector,
- Applicable to Public Authorities,
- impacts all in the organisation,
- Statutory obligation to enforce,
- Permits anyone, no matter where they are or who are they, to seek out whether information is held, and if it is so, to have access to it,
- It is applicable retrospectively,
- Introduces the office of the Information Commissioner,
- Defines immunities covering information that does not have to be divulged,
- Warrants all organisations in the National Health Service to establish and maintain publication schemes that educate the public what information is held,
- Facilitates arrangements for appeal and enforcement,
- If not implemented, it can end up in imprisonment for contempt of court.
The specialty of the FOIA is that any individual who resides anywhere in the world can make a request to supply of information. An individual can make a request for information despite of the fact that whether he is the subject matter of that information or not and may be influenced by its usage or not.
The request for information should be in writing and it can be either send by post or through email or by fax. It should contain the name and address of the individual who seeks the information and should describe what information is needed to be divulged out.
A government officer or a GP (General Practioners) or an authority should retort with a request within 20 working days of its receipt. The deadline may be extended till the payment of fees if any fee is involved. If the government authority transfers such request to another public authority, for instance, the Primary Care Organisation, then it has also 20 working days to respond from the receipt of such request.
According to the Act, a practice is not under duty to obey with vexatious or frequent requests for information. If a reasonable time has elapsed from the previous request, an authority can refuse to offer analogous or significantly similar information.
If the authority feels that he needs some clarification on information sought, then the time limit of 20 working days will start from day when he receives additional information from the information seeker. In case, if the information seeker does not offer any additional information as sought by the authority, then authority is not under duty to comply with the request. Further, if the authority needs further time than the 20 days to forward his answer, then the 20day provision is extended for a considerable period of time.
An authority may refuse to reply on any of the following grounds under FOIA.
- Any personal information regulated by the Data Protection Act, 1998.
- Any information that may injure the commercial interest of a third party or of the public body.
- Any data the dissemination of which would injure the public good.
- If it is proposed for the principle of annoying the authority in retaliation.
- If the appeals for information is repeated or vexatious.
- If the request for information is manifestly unreasonable or obsessive.
- The information is covered up by an exception which is not subject to the Act’s public interest test.
These are called as ‘absolute’ exemptions and are as follows:
- Information available by other sources (Section, p. 21).
- Data offered by security Agencies (Section, p. 23).
- Records from court (Section, p. 32).
- Prerogative of Parliament (Section, p. 34).
- Manner of public affairs in the House of Commons or House of Lords. (Section, p. 36).
- Information of personal nature. (Section 400(except 40(3) (a) (i)).
- Information of confidential (Section, p. 41).
- Any information barred by another enactment (Section, p. 44)
Commercial interests and revelation
For instance, when a query is made about the details of the winning contractor for its PFI projects to DEFRA (Department For Environment, Food and Rural Affairs), the most strange reply was from DEFRA, which replied a few days after the 20 working days deadline had lapsed with an email stating that there needed to be an extension to the deadline since the information requested must be regarded under one of the Act’s immunities to which the public interest test applies. This implies that DEFRA require evaluating whether the public interest in revealing the information outweighs the public interest in retaining it, and whether some extra time will be required to determine this. This exemption in relation to request is covered Section 43 FOIA (Commercial Interests)’.
DEFRA has referred commercial interests (or anything else) as a reason for not identifying the winning contractors for its PFI projects.
The Authority should communicate in writing about his refusal to forward information together with reasons for such refusal. When there is an appeal, the grounds of refusal will be used by the information commissioner to decide whether refusal has been made on justifiable grounds or not. In case, if the information seeker wishes to contest the decision by the authority, the refusal notice should contain the particulars of procedure for appeals against the decision. There should be an internal appeal procedure so that it will be used for redressal of grievances before the information commissioner is being approached. This will preserve both time and money to both the parties concerned.
If an authority fails to react to a decision notice, an enforcement notice will be issued and disobedience could be considered as contempt of court for which a judge may impose an unspecified fine or imprisonment. The procedure for appeal is also described in the Act.
A public authority on receipt of a request for information should first ascertain whether or not it is having such information or not. If the authority is of the opinion that it does not have any information sought by an information seeker and is being held by another authority, then such authority is not required to obtain such information from that authority on behalf of the applicant. The authority should forward contact details of relevant authority to the applicant.
In case, if the information sought by the applicant corresponds with the information already published, then the authority may refer the material already published to the applicant.
Several provinces of FOI implementation are worthwhile to know the intricacy of dealing with the legislation. The important ones to view are:
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- FOI process system / response system
- Compliances cost
- Time expended on processing demand and accumulations.
- Role of senior management employees.
- Key to FOI success depends upon on efficient recordkeeping.
Difference between Freedom of Information Act and Data Protection Act.
There is a basic difference between FOIA and the Data Protection Act. FOIA relates to information held by the authority like governance, procedures whereas a Data Protection Act is concerned with personal data which is exempted under FOIA. Personal information can be released as long as personal information is related to that individual’s function in the public authority and such disclosure does not infringe the provisions of Data Protection principles. In case, if a request made by an applicant for personal information about themselves or about any other individual, then there is no privilege to discern under FOIA and such requests may be entertained under Data Protection Act.
Individuals have the right to access the information in an organisation that holds about them under section 7 of the Data Protection Act. To access such information, it must be held in an electronic system which includes email in this definition or in a ‘pertinent’ filing system. In each instance , the vital test is whether the information is being treated with reference to the individual and in case of an email whether it is with his name in the headline or in the case of a hanging file whether it has their name on it are covered under the Data Protection Act. However, any information is stored by a memo sat on a desk would not be covered. In Durant vs. the FSA (2004) which strengthened this principle. The High Court overruled the idea that information stored other than by reference to an individual was available under the terms of the Data Protection Act. Hence, Durant got access to the FSA’s file that was marked “Durant” and which contained information only about himself. He was denied to see his details from another file covering “Cases” which appeared to include information from his case.
Disclosure of internal emails under the FOIA
The FOI Acts and the Environmental Information Regulations (EIR) 2004 Act is applicable to any written or recorded information retained by or on behalf of a public body, including: emails, paper records, information stored audio or video cassettes , on computer, maps, microfiche, handwritten notes ,photographs or any other structure of recorded information.
There is no restriction for information under FOIA as regards to the form in which the information is held. Hence, internal emails need to be divulged under the Act. It is to be observed that only supplementary email information need to be divulged and exempted information contained in any email may not be divulged. Further, any information contained in the uncompleted meeting notes or draft documents have to be disclosed unless otherwise subject to a qualified or an absolute exemption. Likewise, under section 22 of the Freedom of Information Act, information meant for future publication is normally exempted.
If an authority can justify a logical case that its commercial interests would be injured by revealing details of public money and whether it is responsible for spending, and then such authority would be justified in not disclosing such information.
Information like the public or private lives of the third party information which pertains to family or home life of a person, his personal finances, information on personal references should not be divulged.
According to survey held by change management consultancy partners for Change with the senior U.K government executives revealed that about 79% of government bodies will not be able to fulfil with one of the main provisions of the FOIA which demands that government agencies must reply any query from the public within 20 working days. In case, if the government bodies does not answer the question within 20 working days and in such cases, they have to pay fines and public can take them to the court.
One of the issue in FOIA is that how much it going to cost to the public for getting information and how it going to cost to the government for digging out the information. The authority must inform the applicant in advance, if there is a charge. Charges can be imposed for printing, copying and postage. If the expenditure (excluding printing, copying and postage) to be incurred by the competent authority in replying to a request exceeds £600 for a government department, or exceeds £450 for all other public authorities, then appropriate authorities are not needed to respond at all. According to Lord Falconer, Constitutional Affairs Secretary, all requests for information will be free for the majority of cases and informed that any request which cost less than £450 will be free of charge. In case, if the cost for searching out the information exceeds £600, some governmental agencies may levy a charge. (Swartz 2005).
The Information Commission (IC) had received about 1160 complaints as of July 2005 for having failed to meet the 20-day deadline or refused to divulge information. Though, majority of these complaints have been resolved informally, the IC has issued decision notices on 19 cases.
About 50 percent of complaints made to IC centres around procedural issues and this highlights that some public authorities are still ambiguous about their FOIA obligations. To assist them to comply with the act, the IC has released a list of tips, which insists to be proactive, be prepared to attend anticipated requests and to arrive at a decision on its own merit without bias of setting a precedent.
The U.K government proposes to extend the FOIA to cover all contractors and private companies which execute activities of a public nature. The U.K government stressed in the consultation paper released during November, 2008 that companies under contract with a public body should come forward to subject to same scrutiny as other public sector units subject to FOIA. Thus, U.K government is contemplating to include the building information-access duties into service contracts with private-sector suppliers that involves in delivering public services. Legal experts are of the opinion that the proposal would entail private IT contractors who supply outsourced services to administer FOI requests.
According to U.K government, some private companies are in receipt of lion’s share of tax payers’ money to execute administrative functions of public nature but are not covered under the FOIA. Some private organisations have contract to execute significant work that otherwise be executed by the public authority they contract with. For instance, prisons managed by HM Prison Service are presently covered under the act, but prisons managed by the private contractors are not covered under FOIA.
In satisfying these obligations, it would appear appropriate that they be subject to similar scrutiny as public authorities undergo within the scope of the FOIA.
However, U.K government assured that it will make a consultation with such private contractors on the probable cost and effect on their business before taking any final decision on the subject (Swartz 2008).
Success stories of FOIA in U.K
- Erstwhile Prime Minister of U.K, Tony Blair spoke to the media tycoon Rupert Murdoch three times in the 10 days before the occurrence of the Iraq war. In response to a freedom of information request by the Liberal Democrat peer Lord Avebury, it was revealed that the telephone conversations were among six calls between the above two men detailed by the cabinet. The day after Mr. Blair handed over power to Gordon Brown, the above information was released. However, no information were published on what matters Mr. Blair and discussed in the telephone calls.
- According to inspection reports, about 50 % of all hospital kitchens in U.K are failing to cater essential standards of cleanliness, with proof of medical waste found on food handling equipment, infestations of mice and cockroaches and staff with poor standards of hygiene is employed in the U.K hospitals. Examinations at 380 hospitals in England revealed that nearly twenty percent of hospitals were failing to store food at the correct temperature and 18 had food that was out of date. The findings are the outcome of a Freedom of Information request presented to a quarter of all English local authorities requesting health inspection reports into food preparation areas in hospitals. The report further revealed that vermin, mouse droppings and Cockroaches were found at 11 of the hospitals and 173 hospitals displayed poor cleanliness.
- The data, released following a freedom of information request, exhibited that BBC staff were paid almost £20m in bonuses last year. Mark Thompson, the director general, declined to accept a bonus last year because of a cost cutting measure which led to 6,000 job losses.
- According to the details were revealed to the Times under the Freedom of Information Act, it was revealed that the passes are issued to researchers and secretaries who were employed in peers’ offices and have easy access to ministers, MPs as well as the parliamentary library and other amenities. It is further revealed that after a one-off background check, pass holders can have access to parliament via private entrances for 24 hours a day and for seven days a week and can take guest around and enjoy the facilities like the bars, restaurants and gym.
- New Scientist magazine under the Freedom of Information Act have obtained some vital information which was considered to be secret information previously revealed that the Ministry of Defence (MoD) regarded the risk to the population as “tolerable”. According to documents released by the Ministry of Defence, nuclear missiles stationed at the former RAF base at Green ham Common in Berkshire have actually put 10 million people at risk from radioactive contamination,. It also warned that there was a “realistic” danger of a nuclear missile accidentally exploding or catching fire, engrossing others in flames and airing a plume of radioactive plutonium into the atmosphere.
- Through a freedom of information request, a pay-off of almost £500,000 to a former NHS chief executive has been uncovered. Health Service Journal obtained the information that Chris Town received a redundancy package worth £480,000 which was four times of his salary following the shake-up of the Greater Peterborough primary care trust.
Comparison of FOIA of UK, U.S.A and Canada
The U.S Freedom of Information Act was originally enacted in 1966 and has been modified four times in the past and has given the rest of the world about four decades experience. Courts can alone enforce the provisions of FOIA in America. Both U.S.A and U.K FOI authorises any individual from anywhere in the world can obtain information under FOI. However, a recent amendment in Intelligence Authorisation Act in 2004 prohibits for entertaining requests from foreign residents, governments to receive information. U.S.A has received more than 2, 6 million requests under FOI in 2005 alone whereas the U.K received 38,200 and Canada received about 25,200 requests in 2005.
Canada enacted its Access to Information Act in 1982 and stands as a good model for FOI legislation. In U.K and Canada, information commissioner is entrusted with the responsibility of enforcement of FOIA. Both Canada and U.K have integrated a ‘government veto” into their act – a somewhat tentative commitment to FOI as contrasted to the U.S FOI legislation. Canadian FOI differs from U.S.A and U.K as only Canadian citizen or permanent residents can obtain information under FOI.
If a request is refused, appeals can be made to the information commissioner both in the Canada and United Kingdom and appeals to a higher court can be made to the Federal Court of Canada and to the U.K. information tribunal.
The exact cost of complying with FOI legislation in the three countries is almost not possible to compute. U.S.A spent about the total cost of administering the U.S. FOIA in 2003 was about 23 million. The annual FOI cost is estimated to be around $30 million (Cdn.) according to the government of Canada or approximately $25 million in U.S. dollars. The United Kingdom spent for 18 months period was about 35 million [pounds sterling] per year (about $68 million U.S.). The cost, naturally, relies upon the competence of the response procedures and, hence, to the time dedicated to FOI observance.
The statutory rules for time desired for compliance are generally comparable across the three jurisdictions. The U.K.’s FOI act requires that the authority must fulfil “not later than the twentieth working day following the date of receipt of the complaint.” In the United States, it has twenty working days in which to make a decision on the request.
One of the elements that can influence the competence with which FOI requests are processed is the quantum of training FOI practitioners receive. The Office of Information and Privacy (OIP) of the United States views government FOI staff training seriously, advocating a year to learn the job. FOI practitioners training in the United Kingdom is the duty of each government department. Grades of training in access work differ across departments in Canada, where it is typically bare, voluntary as opposed to obligatory, and takes the shape of voluntary information sessions. The significance of training, however, has been acknowledged, and recommendations are being given to develop training.
Senior management support is also regarded as critical for successful implementation, not only with regard to training, but also the outcome of management’s outlooks toward the work. Manager’s direct involvement in access work and understanding toward employees’ time restraints can do much to make easy access work as well as to advance morale. Senior management has been criticised in each jurisdiction, however, for its lack of support. Senior managers in the United States are supposed to pay little attention to FOI, while their Canadian colleagues are too reactive, exhibiting interest only in precise issues and files. This has also been recognised as a trouble by local authorities in the United Kingdom.
Recordkeeping seems to have augmented toward the top of the agenda since FOIA 2000 was enacted in the United Kingdom. According to a report, “Freedom of Information Act 2000, in the First Six Months about 35 percent of local authorities in England appraised in 2005 observed that FOI had had an optimistic effect on records management, with issues being documented and in growth.
The survey made by U.K. Information Commissioner in a January 2006 stated that twenty-seven percent of public authorities surveyed were of the belief that recordkeeping had improved, and 57 percent was of the opinion that their filing system was likely to change within the next year to conform with FOIA 2000.
Scope for authorities to use dedicated software has also been recognised. In the United States, E-FOIA is said to have had a useful effect on database eminence, but information records management know-how is still being positioned on authorities’ databases. In Canada, the superiority of filing systems has been eased up and despite of perplexity over the definition of “record,” recommendations has been made for overt guidelines in this esteem.
FOI laws are only as fine as the systems that strengthen them. Staffs have to discover to compact with the stress of compliance and a new decision-making procedure. Effective and efficient procedures for producing, managing, handling, and archiving documents and records are vital to their success. Clearly, if a government employee cannot discover information when asked for it, he cannot assess it, make the choice on whether to discharge it, make necessary alteration, or communicate it to the requester within the legislation’s statutory time limit. FOI simply does not work, without good records management. (Holsen Sarah 2007).
A ruling by the Information Tribunal is a triumph for the public’s privilege to discern about matters of national interest. It overturned the U.K government’s protests to the make public of a confidential early draft of a record which was written by the Foreign Office chief press officer ,John Williams about Iraq’s alleged weapons of mass destruction,. It created a doubt on the government’s stand that this draft played no part in the creation of the official record issued in the name of the Joint Intelligence Committee in September 2002. It is to be recalled that the wording of the two documents is remarkably analogous in many places.
This affair seems to corroborate that the administration system set up to administer the Freedom of Information Act is actually operating well and accomplishing its objective of breaking down the British government’s established habits of secrecy. The public craving for accountable and open government is strong. The media’s aptitude to meet that demand is much more certain.
The performance of the FOI Act need to be strengthened and its value to be augmented and the more enquiries resorted to the use of the legislation and more frequently public authorities are required to expand on initial simple responses. Good adherence from public authorities in replying generously to information requests will be rewarded by a decrease in the cost of response and administrative burden, while those who respond by dissemination of incomplete information will find themselves in long negotiations with FOI enquiries.
- Ames, Chris. “Freedom of Information: Secrets We Need to Know.” New Statesman 2007: 16.
- Botterman, Maarten, et al. Public Information Provision in the Digital Age: Implementation and Effects of the U.S. Freedom of Information Act. Santa Monica, CA: Rand, 2001.
- Holsen Sarah.” Freedom of information in the U.K, U.S and Canada. Freedom of Information (FOI) laws are….” Information Management Journal. (2007).
- Noorlander, Peter. “Freedom of Information: A Right to Keep Digging.” New Statesman 2007: 16
- Pozen, David E. “The Mosaic Theory, National Security and the Freedom of Information Act.” Yale Law Journal 115.3 (2005): 628+.
- Swartz, Nikki. “Is the U.K Ready for FOI? “Information Management Journal (2005).
- Swartz, Nikki. “U.K Seeks FOIA Company Compliance.” Information Management Journal. (2008)