The Freedom of Information Act

The Freedom of Information Act

The current Code of Practice on Access to Government Information will cease to have effect from 1 January 2005. Disclosure of information by public authorities will, from 1 January 2005 be regulated by the Freedom of Information Act.

Members of the public, including foreign nationals and companies, will have the legal right to access a huge array of information on the actions of public bodies (including private companies acting in a public capacity). No one needs a reason to access information from public authorities – if you want it, you will get it.

The Act should not be confused with the Data Protection Act 1998 that concerns the processing of personal data and regulates the release of personal information.

Private companies

The Act will have implications for private companies. Businesses can no longer assume that merely by marking communications “commercial in confidence” that commercial information will be protected.

The Act provides an opportunity to learn more about how public sector customers operate and what they expect from their private sector suppliers. It will also mean that competitors, customers, suppliers and interest groups will be able to access information that public authorities hold about your company.

If the disclosure would amount to an actionable breach of the public authority’s duty of confidence to your company it may be exempt from disclosure, but if the disclosure is only arguably a breach of confidence, the information will not be exempt. And if the information held by the public authority amounts to a trade secret or the disclosure of the information held would prejudice the commercial interests of your company, the information will still be disclosed if it is in the public interest to do so.

If your company does business with the public sector, including under any PPP scheme, the G-Cat or S-Cat schemes and whether as a primary supplier or sub-contractor, the Freedom of Information Act will have an impact on how your company works.

So what can you do to be prepared?

(a) Find out from your public sector clients who their Freedom of Information Act officer is, how their policies work and who will pay for producing the information requested.

(b) Establish who from your company is authorised to approve and deal with the release of confidential information to a public authority.

(c) Review the management of information given to public authorities. Is the information given without sufficient reason or in an unnecessary level of detail?

(d) Establish clear policies and processes for claiming confidentiality and insuring these claims are effective.

(e) Require your public sector clients to inform you before they disclose information in response to a Freedom of Information Act request.

(f) Tell your public sector clients up front what information you are giving them about your company which you consider to be exempt from the Freedom of Information Act disclosure.

(g) Get legal advice – you may need to commence legal proceedings quickly to protect information provided to a public authority – either against the authority if they propose to release, or in support of the authority in resisting the release of information.

The public sector will disclose everything if there is no justifiable reason for withholding it. Take steps now to minimise your own business risk and the potentially conflicting Freedom of Information Act compliance risk of your public sector clients.

The public sector

Public bodies include Government departments, local authorities, the NHS, schools, and the police. Such bodies need to get systems in place for processing Freedom of Information Act requests. They need to identify the information they have and where it is. The Act is retrospective and applies to information held by the public authority before 1 January 2005.

A designated person should be appointed to consider whether or not any of the exemptions contained within the Act apply. A pool of staff should be trained in the main provisions of the Act in order to deal with Freedom of Information Act requests.

Public authorities should prepare a policy for dealing with public sector suppliers. Individuals will be able to ask to see tender documents, contracts and even invoices so public authorities should ensure that their private sector suppliers are aware that confidential information about them could be disclosed to the public and to commercial rivals.

No charge can be made by the public sector authority for any but the most extensive requests. Therefore, they must be dealt with quickly and efficiently.

Charges for complying with requests will be set out in Regulations governed by the Act.

Private citizens

Requests can be made of public authorities for any kind of information whether recorded on paper or computer files, internal emails, audio or video recordings, brochures and photographs. Accessible information includes information about how the decisions of public authorities are made and how they spend public money. Public authorities must respond to all requests within twenty days.

Fees for requests have been cancelled for requests which cost less than £450 (equivalent to two and a half days’ work). This means that most requests will be free.

Conclusion

The solution for public authorities is good records management. It is critical that files are named and numbered and cross-referenced properly. Filing must be kept up to date.

A generous fee structure by the Government and ministerial commitment to openness is good news for the citizen. If public authorities prepare properly they will have nothing to fear. Get your systems in place now and understand what is coming and nothing should change other than our understanding about what is going on in the corridors of power.