The Freedom of Information Act (FoIA) 2000 was introduced to ensure that public authorities in receipt of taxpayers’ money are transparent about how they exercise that authority. Under the FoIA, public authorities in England, Wales and Northern Ireland must routinely make public certain types of information about their activities, including accounts, policies and procedures, and must respond when members of the general public request information from them – a Freedom of Information (FoI) request. The Freedom of Information (Scotland) Act 2002 gives the same rights to people in Scotland.
Who can I request information from?
The FoIA applies to organisations designated as public authorities. Public authorities include publicly funded schools, colleges and universities, the NHS, the police and emergency services, government departments and local councils and museums, galleries, theatres and companies that are publicly funded or owned. Members of parliament and political parties are not public authorities for the purposes of the FoIA. Although the BBC is designated as a public authority, under Schedule One, Part VI of the FoIA it only has to provide information if it is held for “purposes other than those of journalism, art or literature”. This can give the BBC quite broad powers to decline FoI requests. In general, you cannot make an FoI request to a private company or business. For example, you could make an FoI to a publicly-owned library, but not to a privately-owned bookshop.
If you are unsure whether or not the organisation you want to request information from counts as a public authority, you can check with the Information Commissioners’ Office. (The ICO also publishes guidance on how to submit FoIs.)
What information can I request?
An FoI can be used to request access to all recorded information held by public authorities. This includes emails, letters, computer files, printed documents, and audio and video recordings, but does not extend to information that is unrecorded. For example, the written minutes of a meeting would be disclosable, but if no minutes were taken then the public authority would not be obliged to ask attendees what took place to answer an FoI. The FoIA also applies to recorded information not authored by the public authority itself – for example, letters received from members of the public.
You cannot request your own personal data via an FoI. This can be done by making a Subject Access Request instead.
How do I make a Freedom of Information request?
The FoIA obliges public authorities to publish information about how to submit an FoI request. (See here for an example from the NHS and here for an example from the police.) Most public authorities have a dedicated web page for this information where you can submit an FoI via an online form or search for the email address of the person you should send your request to.
How should I word my Freedom of Information request?
- Always open by making it clear that you are requesting information under the terms of the FoIA – for example, by stating: “Under the Freedom of Information Act 2000 I am writing to the request the following information.”
- Then provide a numbered list of the information you are requesting. Make sure you are not asking for information that is already publicly available by checking whether the public authority in question has released the information as part of its regular publication scheme. Some public authorities also maintain a public database of previous FoI requests that you can check. Public authorities can decline requests that would incur excessive time or cost to answer (see below), so be as specific, succinct and realistic with your questions as you can be.
- Where possible, request information with reference to a set time period. For example, don’t submit the following request to Bromley Borough Council: “Please tell me how much you’ve collected in fines from Fixed Penalty Notices for parking offences.” Do say: “Please tell me how much you’ve collected in fines from Fixed Penalty Notices for parking offences from 1st Jan 2021 to 31st March 2021.”
- If you can, provide information about how you would like the information to be set out. For example, don’t say to governors of a primary school: “Please tell me what health and safety training you made available to your employees from 1st Jan 2021 to 31st March 2021.” Do say: “Please send me the title and a short summary of the health and safety training you made available to your employees from 1st Jan 2021 to 31st March 2021.” Specify the format in which you want to receive the information and where it should be sent, e.g.: “Please provide the information in the form of an MS Word document and send it to [email protected].”
- Show willingness to refine your request by referencing Section 16 of the FoIA. Section 16 (see below) places public authorities under a legal duty to provide advice and assistance to people seeking information, often by issuing guidance about how they can refine their request in a way that makes it answerable. For example, state: “Before declining my request, please provide advice and guidance under Section 16 of the Freedom of Information Act 2000 about how it could be refined in a way that would enable you to comply.
- Make it clear why disclosure is in the public interest. For example, if you are making an FoI about health and safety standards at a publicly-owned museum, you might say: “Disclosure of this information is in the public interest because it will enable the public to evaluate safety standards at the museum.”
- Include your full name and contact information.
Example Freedom of Information Request
Under the Freedom of Information Act 2000 I would be grateful if you could provide the information requested below. Please provide the information in the form of MS Word documents and send it to me, Mr Joe Elliott Bloggs, at [email protected].
1. Please provide the minutes of all meetings of the Local Governing Body of South Nottingham Academy between 1st Jan 2021 and 31st March 2021.
2. Please provide details about the amount of money spent on Health and Safety training at South Nottingham Academy between 1st Jan 2021 and 31st March 2021.
3. Please provide the names of all third-party providers contracted to provide Health and Safety training at South Nottingham Academy between 1st Jan 2021 and 31st March 2021
4. Please provide a list of all the incidents recorded under South Nottingham Academy’s Health and Safety Policy that occurred between 1st Jan 2021 and 31st March 2021. Please provide the date and a short description of each incident.
If you are unable to answer my request as currently worded, please provide advice and guidance under Section 16 of the Freedom of Information Act 2000 about how it could be refined in a way that would enable you to comply.
Before declining disclosure on the grounds of an exemption, please be mindful that public authorities have a duty to be transparent and disclose information that is in the public interest. Disclosure of the information I have requested will enable the public to evaluate the work of the Governors and Senior Management Team at South Nottingham Academy and to assess its health and safety standards and is therefore in the public interest.
Finally, please recall the Information Commissioner’s Office Guide to Freedom of Information: “When estimating the cost of compliance… [y]ou cannot take into account the time you are likely to need to decide whether exemptions apply, to redact (edit out) exempt information, or to carry out the public interest test.
Joe Elliott Bloggs
What happens after I submit my Freedom of Information request?
Under Section 10 of the FoIA, public authorities must respond to your FoI request within 20 working days of receiving it. If a public authority is unable to answer within the legal time frame they must notify you of this and specify when an answer will be forthcoming. If a public authority fails to respond to your FoI request entirely you can complain to the Information Commissioner’s Office.
When can a Freedom of Information request be refused?
Public authorities have the right to decline FoI requests that are vexatious, or which ask for substantially the same information as a previous request made by the same person. In general, the FoIA contains a strong presumption in favour of disclosure, but there are a number of exemptions that public authorities can invoke to refuse to disclose information. A minority of exemptions are ‘absolute’ but the majority are ‘qualified’, meaning that a public authority must conduct a public interest test before relying on these exemptions to refuse to disclose information.
Absolute exemptions apply to the kind of information that might prejudice a criminal investigation or contravene laws on confidentiality or data protection. For example, a public authority could rely on an absolute exemption to refuse to provide court documents relating to an ongoing criminal trial or information that might endanger national security.
Qualified exemptions apply to broader categories of information, such as details that might be commercially sensitive. But if a public authority relies on a qualified exemption it must be able to demonstrate that the risks of disclosure outweigh the public interest in disclosing the information. For example, contracts between the NHS and private companies would technically engage the exemption against disclosing commercially sensitive information. But the public interest in assessing value for money in publicly funded healthcare might well outweigh the need to protect the commercial interests of private companies.
If a public authority refuses an FoI request it must notify you of this, listing the exemptions it is relying on and, where the exemption is qualified, explaining why the risks of disclosure outweighs the public interest in accessing the information.
Even if they do not disclose the information you have requested, public authorities generally have a responsibility to tell you whether or not they hold it. This is called the duty to confirm or deny. Public authorities can only claim an exclusion from the duty to confirm or deny if public knowledge of whether or not the information is held would in itself be prejudicial. For example, the police could refuse to confirm or deny whether they held information about a witness testifying in a court case because this information might prejudice the outcome of the case.
Some of the more common reasons for FoI refusals are explained below. It is sensible to take into consideration likely grounds of refusal when submitting your request – for example, by citing the Information Commissioner’s Office guidance on cost as shown in the example above.
Section 12 – Cost
Under Section 12, public authorities can refuse to comply with an FoI request if the cost of retrieving the information exceeds £600 for requests concerning central government, parliament or the armed forces, or £450 for all other public authorities. Costs are estimated according to the number of staff hours required to determine whether the information is held, to locate and retrieve it, and to extract the relevant details. Time spent establishing whether exemptions apply, conducting the public interest test or redacting information does not count towards the calculation of costs. If a public authority declines an FoI request on Section 12 grounds it should provide information about how the request can be refined to make it fall within with the cost limit. Some public authorities may also agree to provide the information if you offer to pay the additional costs associated with retrieval.
Section 21 – Information is already reasonably available
Section 21 of the FoIA gives public authorities an absolute exemption from providing information if it can already be reasonably accessed by the public elsewhere. Before submitting an FoI, it is worth checking the publication scheme of the public authority in question and reviewing any previous FoI requests it may have made public to ensure the information is not already available. You can generally find a public authority’s publication scheme by doing a web search – for example, “Birmingham City Council publication scheme”. To see previous FOI requests submitted to the public authority in question, you can check the database of the website WhatDoTheyKnow. If a public authority declines to provide information on the basis of a Section 21 exemption it should signpost where you can find it.
Section 22 – Information intended for future publication
Public authorities do not have to disclose information that they ‘definitely intend’ to publish, provided it is reasonable not to disclose it until publication. For example, a public authority does not have to disclose financial information that will eventually be published in its annual report. If your FoI is refused on these grounds but you do not believe the public authority in question will disclose the information you require, you can always resubmit your FoI after the information is published and draw attention to the omission.
Section 43 – Trade secrets and prejudice to commercial interests
Public authorities frequently have relationships with commercial third parties who may provide some of their products or services. For example, while the NHS is a public authority and is therefore subject to the FoIA, it also pays private commercial providers to deliver some of its services. Private providers have a legal right to protect the trade secrets they rely on to be commercially successful. Under Section 43, information concerning the relationship between a public authority and a commercial provider may be declined if the commercial interests of the provider are deemed to outweigh the public interest in disclosure.
What can I do if I think my Freedom of Information request has been wrongly refused?
The FoIA imposes a responsibility on public authorities to disclose information in the interests of transparency and public accountability. To justify non-disclosure, a public authority must be able to demonstrate significant negative consequences that have a realistic possibility of arising as a direct result of disclosure. In other words, the presumption is in favour of disclosure and public authorities should not be unduly obstructive in responding to FoI requests.
If a public authority refuses your request you should ask it how to refine it. Section 16 of the FoIA obliges public authorities to provide advice and guidance to requestors about how to do this. When you have refined the wording of your request you can submit it again. Refined requests should be clearly signposted as such, thereby making it difficult for public authorities to treat a refined request as a repeated or vexatious request.
If your FoI is refused or you are unhappy with the response, you should ask the public authority in question to review its decision. If this does not result in a satisfactory outcome, you can make a complaint to the Information Commissioner’s Office. You should keep a careful record of your FoI correspondence, including submission and response dates and any refinements, in case you need to make a complaint.