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Checklist for responding to FOI requests

Under section 8 of the Freedom of Information Act 2000 (FOIA), all requests for information must:

  • Bin writing (although requests made under the Environmental Information Regulations 2004 (SI 2004/3391) (EIR 2004) do not need to be).
  • State the name of the applicant and an address for correspondence; this can be an email address.
  • Describe the information requested.

A public authority must respond to a request within 20 working days following the date of receipt (section 10(1), FOIA).

 

Log the request

All requests for information made to a public authority are subject to the provisions of FOIA whether the request refers to FOIA or not. It would be of little value to attempt to record all such requests, but many authorities have adopted a logging system for more complex requests or those requests that expressly refer to FOIA to monitor the effectiveness of their internal compliance procedures and ensure time limits are complied with.

 

Is the information in a publication scheme?

If the requested information is listed in the authority’s publication scheme FOIA assumes that the information is readily available, and there is no need for the applicant to rely on FOIA to obtain it. If the information is available itself directly through the publication scheme, for example, as a download, it is sufficient to direct the applicant to the relevant web page. If the applicant requires a hard copy of the information or the publication scheme merely lists the information rather than allowing direct access to it, the information will need to be collated in the same way as any other information request. Given that information listed on the publication scheme should be readily accessible, the applicant should not have to wait 20 working days to receive it.

 

Communications with applicant

There is no statutory requirement to acknowledge receipt of an information request. However, it is good practice to send an acknowledgment of the request with an estimate of when the applicant can expect to receive the information. Courteous management of requests is important as many freedom of information requests arise from complaints about other matters.

 

A notice refusing to provide the information requested must be in the statutory format described in section 17 of FOIA and should state:

  • That the information is exempt from disclosure
  • Which exemption(s) apply
  • If the exemption is qualified, the reason why the public interest test favours withholding the information
  • The Procedure for appealing the refusal

 

Standard letters to communicate with applicant

We have published a FOIA and EIR correspondence toolkit, which contains standard letters that a public body can send to deal with an information request. The letters provide standard wording for several different types of response. Standard response letters to freedom of information requests are also available from the Ministry of Justice.

 

Should advice and assistance be offered?

Section 16 of FOIA imposes a duty on public authorities to offer advice and assistance to those who have or propose to make a request for information.

  • Advice and assistance should be offered where:
  • he authority requires further information from the applicant to identify and locate the information requested. (The 20 working day time limit will not start until the request has been clarified.)
  • he authority does not hold the requested information but can direct the applicant to the appropriate authority.
  • Compliance with the request would exceed the cost limit but the applicant may be able to refine the request to bring it within the cost limit. (The 20 working-day time limit will continue to run.)

 

Under section 45 of FOIA, the Secretary of State is required to issue a code of practice for use by public bodies when dealing with freedom of information requests under FOIA. Compliance with a section 45 code of practice will satisfy the statutory obligation under section 16 of FOIA to advise and assist.

 

Is the information held by or on behalf of the authority?

All information held by or on behalf of the public authority is subject to FOIA including, for example, information held by a private contractor on behalf of an authority. It is therefore important to ensure that contracts between a public authority and its contractors require co-operation when responding to requests for information. Some private information deposited with public authorities is also caught by FOIA.

 

Collating the information

Section 11 of FOIA states that the authority must, as far as reasonably practicable, provide the applicant with the requested information in their preferred format. This may include photocopies, a tape or even a verbal explanation of the information. If they do extract or collate information, authorities must include all the requested data from the original that constitutes “information”, including headings or logos (Independent Parliamentary Standards Authority v Information Commissioner and another (EA/2012/0242)).

The applicant can also request to inspect the information in person or receive a digest or summary of it. The costs and time taken to convert information into the preferred format can be taken into account when calculating the “appropriate limit” for costs relating to providing the information (see charging a fee). Disbursements such as photocopying and postage costs can be charged even where the appropriate limit is not reached.

 

Charging a fee

Public authorities may charge for:

  • Disbursements (photocopying, postage and so on) in accordance with their internal charging policies.
  • Determining whether the information is held and locating, retrieving and extracting the information, but only if the costs of doing so, together with any applicable disbursements, exceed the appropriate limit.
  • The appropriate limit is £600 for central government bodies and £450 for all other public authorities (regulation 3, Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (SI 2004/3244)(Regulations). The cost of an individual officer’s time is £25 per hour (regulation 4(4), Regulations).
  • Where the appropriate limit has been exceeded, the authority may:
  • Provide the information free of charge;
  • Provide the information on receipt of the fee (calculated on the basis of the above factors); or
  • Refuse the request.
  • If the authority intends to charge a fee, the costs of providing the information must be estimated in advance or the authority risks carrying out the work before the applicant agrees to meet the costs of proceeding with the request. The amount of fee charged and paid, which subsequently exceeds the actual costs should be reimbursed to the applicant. Therefore, unless the authority can estimate the fee accurately, it risks having to recover and potentially reimburse relatively small amounts to applicants where it has overestimated. It may be more cost-effective to provide the information for free or to assist the applicant to reframe their request and bring it within the appropriate limit.
  • The costs of answering more than one request may be aggregated in the following circumstances:
  • Where two or more requests are received “by one person, or by different persons who appear to the public authority to be acting in concert or in pursuance of a campaign” (section 12(4), FOIA).
  • The requests relate to the same or similar information (regulation 5(2)(a), Regulations).
  • The requests are received within any period of 60 consecutive working days (regulation 5(2)(b), Regulations).
  • There is no appropriate limit for information falling under the EIR 2004 (regulation 8, EIR 2004)

 

Is the information exempt from disclosure?

If the information falls within an exemption under FOIA, determine whether:

  • The information can be disclosed in any event (for example, because the authority chooses not to apply the exemption, or in the case of confidential information from third parties, consent to disclose has been obtained from those third parties).
  • The information can be edited or redacted before publication and the remainder disclosed.
  • In the case of any information the authority wishes to withhold, the public interest in maintaining the exemption outweighs the public interest in disclosure. If information is withheld the refusal notice must comply with section 17 of FOIA.

 

Vexatious and repeated requests

Public authorities are not required to respond to vexatious requests (section 14, FOIA). It is the request, not the applicant, that must be vexatious. Examples of vexatious requests could include requests that are:

  • Aimed at disrupting the work of an authority.
  • Aimed at causing distress to individuals.

Similarly, public authorities are not obliged to respond repeatedly to the same or a substantially similar request from the same applicant until a reasonable period has passed.

 

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