Means of disclosure
Once a decision has been taken to release information, the key consideration
for an authority is the form in which it is to be released. Public authorities
will hold information that is covered by the right of access under the
Act in many different forms. Applicants may request information that
is included in minutes of meetings, e-mails, maps, audio recordings,
video recordings and information held in any format by your department.
Sometimes applicants will request information in a particular form,
perhaps asking for a copy of the minutes of a particular meeting. It
is important to remember that the right of access is to information,
not documents. But if it is reasonable to comply with an applicant's
request as to the form in which information is disclosed, you are obliged
to comply with that request.
If the applicant requests a copy of the information in a permanent form,
(or any other form acceptable to them), for a summary or digest of the
information, or to come and inspect a record containing the information,
you must, when considering whether you can release the information,
also consider whether it is reasonable to provide the information in
the format requested.
When considering whether you can release the information in the format
requested by the applicant you should consider:
Whether the format is easily replicable - eg.
can you easily copy the maps requested, do you have audio copying
equipment?
The cost of providing the information in the format requested -
would providing the information in the format requested by the applicant
take the cost of processing the request over the fees threshold.
If this occurs, you should write to the applicant, stating that
a fee is payable for releasing the information in the format requested.
You should also give active consideration to whether the information
can be released in another format which would not incur a cost.
If this is possible, you should alert the applicant to this fact
in the same letter.
Use of Crown Copyright
Public authorities should be aware that information which is disclosed
under the Act may be subject to copyright protection. If an applicant
wishes to use any information in a way that would infringe copyright,
for example by making multiple copies, or issuing copies to the public,
he or she would require a licence from the copyright holder. HMSO have
issued guidance on this subject in relation to Crown Copyright, which
is available on HMSO's website, or by contacting HMSO at
HMSO Licencing Division
St Clements House
2-16 Colegate
Norwich NR3 1BQ
Tel: 01613 621000
Fax: 01603 723000
Third Party Copyright
Public authorities complying with their statutory duty under sections
1 and 11 of the Freedom of Information Act to release information to
an applicant are not breaching the Copyright, Designs and Patents Act
1988. The FOIA specifically authorises release of the information to
an applicant, even if it is in such a form as would otherwise breach
the copyright interests of a third party.
However, the Copyright Designs and Patents Act 1988 will continue to
protect the rights of the copyright holder once the information is received
by the applicant.
Refusing to release information
Section 17 notices
If you refuse any part of a request for information in reliance on
a substantive exemption, you must explain which exemption you are relying
on and why.
If the exemption you are relying on is qualified by a public interest
test, you must explain why the balance of the public interest comes
down against disclosure.
If you are considering the application of a qualified exemption and
cannot answer within the 20 working day limit, you must (within that
limit) inform the applicant of which exemption you are considering and
give a time estimate for when you will reply.
There are limited provisions in the Act enabling you not to give these
explanations where to do so would itself undermine the exemption in question.
Suggested model s17 notices for use in straightforward or routine cases
are included in the standard paragraphs. It is important that, when you
refuse information, you ensure that the applicant is given the full reasoning
behind the refusal.
But it is important to note that in more complex cases, the precise drafting
of s.17 notices may be very sensitive, and require careful, expert handling.
Redactions
Information which should not be released can be deleted from any document
the other contents of which will be released, for instance by 'black-penning'
the information to be protected. If an applicant has requested all the
information in a particular document but it is necessary to redact some
of that information because it is exempt, you should make it clear that
redactions have taken place, and cite the relevant exemption as to why
the information has been redacted.
It is important to bear in mind however, that the Freedom of Information
Act applies to information, and not documents. Whilst the information
requested is likely often to be contained in a document, this does not
mean that the document has to be released with exempt material redacted
from it. Rather, it may be more appropriate to release solely the information
that can be released by creating a new document with only that information
contained. This is likely to be particularly relevant where the majority
of the information contained in the document does not fall within the
scope of the applicant's request.
If you are making redactions from electronic documents you need to be
aware that technological advances may allow redactions to be reversed.
If you have to make redactions to documents which will be released in
electronic format, you should consider copying the information to a new
document, and making an indication where a redaction has taken place and
citing the exemption and sending this new document to the applicant.
If you consider that redactions have to be made to documents in order
to release the information requested you should consider contacting your
local FOI specialist.
Monitoring decisions
Your authority will have an IT system and procedures for managing FOI
and EIR information requests to enable you to record your handling of
these requests.
This record will enable your department to identify implementation issues,
to develop its publication scheme and to assess its performance in the
handling FOI and EIR information requests. Furthermore, this record will
be essential for your authority's monitoring report to the DCA on the
information requests that have been received and processed.
By following your authority's monitoring procedures and ensuring that
your FOI expert is notified at all the points outlined in the flowchart
you will assist your authority to keep an accurate central record of FOI
and EIR information requests.
