Freedom of Information Act 2000

Click Stockport Viaduct for Home Page

226 - 230 Wellington Rd Sth
Stockport
SK2 6NW

Telephone: 0161 429 6498

09 March 2006

Freedom of Information Act 2000 and General Practice

The GPC have issued a useful Question and Answers paper which also includes a link to a Model FOI publication scheme adapted for General Practice from our colleagues at Wessex LMC  (http://myweb.tiscali.co.uk/lmclive/genguide/ifoi/ifoi.html ). In addition the paper covers issues such as Timescales for Compliance, Exemptions, Charging for Disclosure, Vexatious Requests.

With effect from 1 January 2005, the Freedom of Information Act 2000 gives people the right to request, in writing, information from public authorities. It is intended to promote a culture of openness and accountability amongst public sector bodies, and therefore facilitate better public understanding of how public authorities carry out their duties, why they make the decisions they do, and how they spend public money.

The FoI Act will operate in conjunction with the Data Protection Act 1998 which enables individuals access to information about themselves.

Who and what does the Act apply to?  

The FoI Act applies to all recorded information held by English, Welsh and Northern Irish “public authorities” that does not fall within the Data Protection Act (or the Environmental Information Regulations).

The relevant section including General Practice is Schedule 1, Paragraphs 44 & 45 which states that a public authority includes:

44.    Any person providing general medical services, general dental services, general ophthalmic services or pharmaceutical services under Part II of the National Health Service Act 1977, in respect of information relating to the provision of those services.

45. Any person providing personal medical services or personal dental services under arrangements made under section 28C of the National Health Service Act 1977, in respect of information relating to the provision of those services.

Practices should particularly note that the Act only relates to information relating to the provision of GMS & PMS. 

The rights conferred by the FoI Act may be exercised by anyone, including, but not restricted to, people living abroad, non-UK citizens, journalists, political parties, lobby groups and commercial organisations.

Publication Scheme.

Publication schemes are a requirement of section 19 of the Freedom of Information Act 2000. It is the duty of all public authorities to adopt and maintain a publication scheme that has been approved by the Information Commissioner. This duty is a statutory one and is enforceable.

If it appears to the Information Commissioner that an authority has not complied with its duties under section 19, the Commissioner can issue an “enforcement notice” which specifies the steps the authority must take, and the appropriate time limits, to comply with their obligations.

If the authority then fails to comply with an enforcement notice then the Commissioner can certify this in writing to the court which may inquire into the matter and deal with the authority as if it had committed a contempt of court (section 54). The penalty for an authority, whilst it remains in a state of non-compliance with the Act and in contempt of court, would be a fine.

Information included in the publication scheme needs to be routinely available to anyone who consults it.

A publication scheme is both a public commitment to make certain information available and a guide to how that information can be obtained.  The scheme also details how much it will cost if there are any charges.

It is anticipated that the more comprehensive the information available through a publication scheme, the fewer the requests for additional information.

It is important to ensure that publication schemes are kept up to date.

General right of access.

Anyone has a right to ask public authorities for any information they hold. However some of the records requested may contain exempt information which does not have to be provided when responding to a request.

The Act also allows for access to information regardless of when that information was created or how long it has been held by the public authority.

Requesting Information.

Written request –

Requests for information must be made in writing including e-mail. The request must state the name and address of the person applying for the information and the information required.

It is recommended that each practice records every request under the FoI Act. This will assist in reviewing the type of information that is being requested and also if one particular person/organisation is a regular applicant under the Act. 

Timescale –

Public authorities generally have 20 working days in which to respond to a request.

Public Authorities have a duty to provide assistance –

Public authorities are required to provide advice and assistance to people who have made or who are thinking of making a request. This will help applicants understand their rights under the Act and identify the information they want.

Charges –

The Act states that costs in respect of staff time are not recoverable unless they would exceed £450 when costed at £25 per hour (i.e. 18 hours). Therefore, unless retrieval of the information will take more than 18 hours of staff time practices can only charge reasonable costs. For example, in most cases, photocopying and printing would be expected to cost no more than 10p per sheet of paper. 

Other costs that may be taken into account make reference to section 11(1) of the FOI Act which states that public authorities have a duty to give effect to an applicant's preferred format for receiving information, so far as this is reasonably practicable. This may include:

• summarising the information;
• providing the applicant with a copy (for example by photocopying or printing);
• allowing the applicant reasonable opportunity to inspect a record containing the information;
• producing material in an applicant's preferred format (for example by putting it onto CD-Rom, video or audio cassette); or
• translating information into a different language at the request of the applicant although in some cases, authorities may be required by other legislation to produce information in a particular format or a different language at no additional cost (and should not therefore charge for it as part of complying with the FOI Act). For example, the requirement to make reasonable adjustments for disabled people under the Disability Discrimination Act 1995 could require an authority to produce material in a format such as Braille or on audio tape. Another example would be translating information into Welsh when required by the Welsh Language Act 1993.

The 20 days for responding to requests is put on hold until the fee is paid. If the fee is not paid within 3 months it is assumed the applicant no longer wants the information.

Response –

The applicant can either ask for a copy of the information they seek, the chance to inspect the records, or even to be provided with a summary of the information. The public authority should try and provide the information in the form requested unless it is unreasonable to do so. If any of the information requested is exempt the applicant must be told which of the exemptions has been relied on to withhold the information.

Exemptions –

There are a number of exemptions from the general rights of access which include for example:-

• information relating to national security, that would prejudice international relations, is commercially sensitive or confidential.

• Information available under the Data Protection Act.

• Personal data relating to other people that would breach the Data Protection Act.

• Information already available to the applicant. Therefore if information is available through a publication scheme the public authority can direct the applicant to the scheme.

• Information which it is in the public interest to withhold.

• Information is exempt information if it constitutes a trade secret.

• Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).

• If the cost of retrieving the information would exceed £450.

Complaints

If the applicant is not happy with the response they receive they must first complain to the public authority. If they are still unhappy they may complain to the Information Commissioner who will decide whether the request has been handled properly. 

Consequences of not adhering to the requirements of the FoI Act.

Non-compliance:-

In the event of a complaint from an individual that their request for information has not been dealt with satisfactorily, Section 51 of the Act enables the Information Commissioner to serve an information notice. This requires the authority to provide information relating to the application. If the public authority fails to comply with this, the Commissioner can certify this in writing to the High Court.

Section 54 deals with the consequences for a non-compliant authority. The non-compliance can be dealt with by the court as if the public authority had committed a contempt of court (punishment for which is fines, or the maximum penalty of two years imprisonment for the accountable person within the authority (i.e. the senior partner!). These proceedings are dealt with within the civil law. 

The one criminal offence within the Act is under Section 77. If any person alters, defaces, blocks, erases, destroys or conceals any record held by a public authority with the intention of preventing the disclosure of information to an applicant who has made an individual request, he/she is guilty of an offence. If found guilty, the person will be liable on summary conviction of a fine (up to £5,000) or even imprisonment.

Further Information:   

Information Commissioner:- www.informationcommissioner.gov.uk

General advice and information about the FoI Act :-

http://www.foi.gov.uk/feesguide.htm

Or for the anoraks the legislation can be found at:

http://www.legislation.hmso.gov.uk/acts/acts2000/20000036.htm#aofs