Freedom of Information Act 2000 – an outline

The Freedom of Information Act gives individuals and businesses a general right of access to information held by public authorities, whether obtained before or after the Act was passed on 30 November 2000. It will be implemented in stages, with full implementation by January 2005. Any businesses dealing with public authorities will be concerned about keeping their commercially sensitive information confidential.

The implementation of the Act is to be policed by the Information Commissioner.

Public authority

A wide range of bodies are listed as being public authorities for the purposes of the Act, including:

• All government departments, and various other central and local government bodies
• The armed forces (other than special forces and units assisting GCHQ)
• Health authorities and various educational institutions
• Police authorities
• Inland Revenue
• Various advisory committees and agencies
• The Bank of England

The Secretary of State has the power to designate other bodies as public authorities, e.g. companies which exercise an outsourced function from a public authority.

Publication schemes

Public authorities are required to develop a publication scheme. This will act as a "guide" to the information a public authority intends to publish routinely, and outlines the type of information, the manner in which it is to be published and if there is a fee payable to obtain it.

The Information Commissioner has published a number of pro forma schemes for different public authorities (such as schools) to facilitate their preparation of schemes.

Publication schemes need to be approved by the Information Commissioner, and many public authorities will by now have adopted their schemes, which will be publicly available (often on their websites).

The general right to information

The Act provides a right of access to all recorded information held by public authorities, subject to certain exemptions. Any person making a request to a public authority for identified information is entitled to:

• be informed in writing by the authority whether it holds information of the description specified in the request; and
• if so, to have that information communicated to him.

Fees can be charged by public authorities for providing requested information, these being subject to limits set by the Secretary of State. Public authorities generally have 20 working days in which to respond to a request.

Information and exemptions

The starting point is that any information held by a public authority can be requested under the Act.

There are several exemptions to the general right to information, which public authorities can use to refuse disclosure. Some exemptions are absolute, while others are qualified. Public authorities can only invoke qualified exemptions where the public interest in disclosing the information is outweighed by the public interest in using the exemption.

Exemptions to note by businesses are:

• an absolute exemption for information available to the applicant by other means;
• a qualified exemption for personal data if to disclose the information would breach the Data Protection Act;
• an absolute exemption if the requested information was provided to the public authority in confidence, i.e. if the information were disclosed, it would be an actionable breach of confidence;
• a qualified exemption for any commercially sensitive information and trade secrets.

It should also be noted that third parties do not have any right to prevent disclosure – it is up to public authorities to determine if the various exemptions apply (though the authorities will be subject to public law considerations in so doing).

Guidance

The Information Commissioner has published guidance (available at www.informationcommissioner.gov.uk) on the exemptions relating to information provided in confidence and commercially sensitive information/trade secrets. He has also published guidance on the public interest test (which applies in particular to the exemption relating to commercially sensitive information and trade secrets).

It should be noted that the basis on which third parties can seek to agree with public authorities that information should be treated as confidential is limited – the Secretary of State for the Department of Constitutional Affairs has issued an access code under section 45 of the Act, which makes it clear that public authorities are not able to "contract out" of their obligations under the Act by agreeing overly restrictive confidentiality provisions.

There has been some suggestion that businesses contracting with local authorities should seek to agree provisions in their contracts, under which local authorities would need to notify them if requests were made for information relating to the relevant contracts under the Act (which would give businesses a right of action to seek an injunction to prevent disclosure). The ability to do this may be limited, particularly having regard to the guidance issued by HM Treasury on standardisation of PFI contracts (SoPC3).

Implications

Businesses should be aware that information they have provided to a public authority may be disclosed to the public under the Act. Therefore, businesses should ensure that any sensitive information that is given to public authorities is provided in confidence.

On the other hand, the Act will also provide businesses with the opportunity to obtain information held about themselves and other businesses from public authorities (subject, of course, to the various exemptions to disclosure).

For further information please contact Bill Carr at [email protected] or on +44 (0)20 7367 2002