FOIA at UEA - Implementation FOIA Contact Training 14 February 2005

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


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


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


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


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


‘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)


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


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?’


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


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


‘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


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)


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


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


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


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)


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


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


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


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


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


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

Documents

FOIA at UEA - Implementation FOIA Contact Training 14 February 2005