Freedom of Information (FOI) Act
The Freedom of Information Act 2000 (FOI) came into force on 1 January 2005. The Act permits requests from any person for information from a “public authority” (as defined in s.3(1) FOI) and entitles individuals to a general right of access to recorded information (regardless of the age of the information), subject to certain exemptions.
The FOI is relevant to researchers as requests for information may include a request for research data made to a researcher working for, in, or with a university or research institution; or a researcher may wish to make a request for information to any of the public authorities subject to the Act.
This legal framework is subject to the recent approval of the Intellectual Property Act 2014. Clause 20 of the new Act introduces an additional exception into the Freedom of Information Act (S.22A: ‘Research’). Specifically, this exception relates to pre-publication research information, and potentially further protects the confidentiality of research data and data sharing before their commercialisation.
1. Making a request for information
A request needs only to be in writing, giving the name and correspondence address of the requestor, together with particulars of the information requested.
2. Receiving a request for information
Most requests for information form part of routine business, as researchers habitually share information and they should apply the normal research considerations of ethics, privacy and data protection and confidentiality. However, where a specific FOI request is made, or where there are legal or ethical reasons not to provide certain information, the FOI request may have to be considered and an FOI practitioner may need to be consulted.
The FOI confers two rights on the general public:
- the right to be informed whether a public body holds certain information
- the right to have such information communicated to the requester
A public authority has to provide the information requested, unless it is covered by either an absolute exemption, or by a qualified exemption which is subject to a public interest test, in which case the public authority (or the Information Commissioner at appeal stage) has to decide whether the public interest in non-disclosure outweighs that of disclosure. The exemptions are listed in Part II of the Act.
Examples of exemptions include information that would prejudice the formulation of government policy, the effective conduct of public affairs, national security or international relations; as well as those that apply to whole categories such as information about investigations and proceedings conducted by public authorities, court records, trade secrets or exemptions relating to personal information.
The Information Tribunal (now called the Information Rights Tribunal, which hears appeals from notices issued by the Information Commissioner under legislation including the FOI and DPA) and the Upper Tribunal (for appeals concerning national security) have ruled on the question of whether statistical data presented in an anonymised form do not constitute personal data in certain circumstances; and if so, are therefore not exempt under the FOI.
A request for information can be refused if: it would cost too much to comply (in excess of £600 for any government department, Houses of Parliament, Northern Ireland Assembly, National Assembly for Wales, armed forces; or £450 for any other public authority); the request is vexatious or repeated; or the information is exempt from disclosure under one of the exemptions in the Act. If information is refused, an explanation of which exemption(s) is being relied upon must be given. There are no exemptions for embarrassment or for incorrect or out of date information. An absolute refusal to release information will be given if the request is covered by an absolute exemption, which are listed in section 2(3) of the Freedom of Information Act. Any refusal must be set out in a written refusal notice which includes an explanation of how to request an internal review of the authority’s decision. An appeal can be made to the Information Commissioner.
Further readingFreedom of Information Act 2000 – Act in full (PDF) (211Kb) ‘The duty to confirm or deny’ – ICO document (PDF) (45Kb) Department of Health v the ICO – Legal judgement (PDF) (210Kb) APG v ICO & MoD – Legal judgement (PDF) (216Kb)