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BE
CAREFUL WHAT YOU WRITE - THEY HAVE THE RIGHT TO SEE IT
Freedom
of Information Act 2000
Key
Issues
-
Substantial
obligations imposed on public authorities by the Act
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Company
contracts with public authorities may need confidentiality clauses
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Public
authorities may refuse confidentiality clauses
The
Freedom of Information Act 2000 (“the Act”) was passed on 30
November 2000 and must be brought fully into force by 30 November 2005.
The
Act allows individuals access to information held by public authorities
(and those providing services on behalf of a public authority) and also
imposes various obligations on them.
The
Act grants 2 basic rights. The individual is entitled to be told by the
public authority whether the information requested exists (“the duty
to confirm or deny”) and to have that information communicated to him.
The
right of access to information is subject to certain restrictions that
are set out in a number of exemptions in the Act.
These
rights apply to information in existence before and after the Act was
passed.
Who
will it affect?
Only
public authorities are affected by the Act however “public
authority” has a wide definition.
Schedule 1 of the Act sets out a list of bodies which are public
authorities under the Act and includes government departments, local
authorities, NHS bodies (including for example, dentists and
pharmacists), educational establishments, the police, the Houses of
Commons and Lords, the BBC and advisory and regulatory bodies such as
the Broadcasting Standards Commission.
This list can be extended under section 4 of the Act and a body
may be deemed a public authority only in relation to part of their
activities.
A
body may also be designated a “public authority” by the Secretary of
State under section 5 of the Act. This may be done if a person is
neither listed in Schedule 1 nor capable of being added to the Schedule
under section 4 and is exercising a function of a public nature, or is
providing services under a contract made with a public authority that
are a function of the public authority.
Publicly
owned companies as defined by the Act are also public authorities under
the Act.
Who can
apply?
Any
UK citizen can request access to information.
What
information can be seen?
The
Act extends the existing rights of individuals to see personal
information under the Data Protection Act 1998, to all
information held by public authorities (subject to various exemptions
under the Act).
A
public authority is deemed to “hold” information if it is held by
another person on its behalf. A
public authority does not hold information for the purposes of the Act
where it is held by the public authority on another person’s behalf.
What
are the exemptions?
There
are exemptions in the Act to the public authorities’ duty to confirm
or deny. Some exemptions are absolute in relation a particular category
of information such as trade secrets or confidential information.
Some
exemptions are subject to a public interest test (such as law
enforcement). In these cases, the duty to confirm or deny does not arise
if the public interest in exempting the information from disclosure
outweighs the public interest in the event that it was disclosed.
What
are the other obligations of the public authority under the Act?
Very
briefly, the Act imposes various obligations on the public authorities
in addition to the basic duty to confirm or deny.
The public authority has a duty to:
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Adopt
and maintain publication schemes approved by the Information
Commissioner
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Respond
to requests within 20 days
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Assist
and advise individuals who have made requests
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Transfers
request to other authorities if would provide requested information
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Consult
with 3rd parties if disclosing information pursuant to a
request may affect its interests, legal or otherwise.
How
might the Act effect private companies?
Government
guidance to public authorities is that they should refuse
confidentiality clauses unless it would commercially unviable for the
public authority to refuse the inclusion of the clause in the contract.
Accepting such clauses should be capable of being justified to
the Information Commissioner who oversees the enforcement of the Act.
Authorities
should not accept information from third parties “in confidence”
unless the information is confidential in nature.
Companies
entering into contracts with public authorities could find that it is
not possible to make a contract confidential.
If there is no confidentiality clause in a contract, it is
possible that a request could be made by a member of the public to see
it.
No
right of action exists in civil proceedings against a public authority
for failure to perform any duties under the Act
How can
companies prepare for this?
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In any
other dealings with a public authority, confirm in writing, if
appropriate, the confidential nature of information disclosed
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Be
aware that the public authority has a duty to consider consulting
with third parties where disclosure of information may affect third
party interests. A public authority should consult the third
party if this would assist it in deciding whether the information is
exempt from disclosure. If no confidentiality clause is in an
existing contract, it may be possible to make representations at
this stage to try to prevent disclosure. An agreement to consult in
new contracts could also be considered.
For
further information, contact us
Please
read our Legal Notice
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