Freedom of Information - A free for all?
On New Year's Day 2005, the Freedom of Information Act 2000 (the FOI) came fully into force, opening up a new world of opportunities and threats for both the public and private sectors.
Background
The Act gives individuals (including foreign nationals) and companies rights to information held by over 100,000 public bodies in England, Wales and Northern Ireland. There are similar arrangements for Scotland under devolved legislation. The "right of access" applies to information, in any form, held by a public authority at the time of the request. The legislation is retrospective and extends to information recorded before the Act took effect.
Public bodies that are subject to the new disclosure requirements include schools, universities, police authorities, the NHS, government departments and local authorities. These bodies may hold information relating not only to their own activities and policies but also about third parties acquired in connection with their regulatory, licensing and supervisory functions. Some bodies may also be landowners and information relating to their properties may also be accessed under the FOI. As one would expect, some public authorities, notably the Secret Intelligence Service, the Security Service and Government Communications Headquarters are exempt from the FOIA's requirements.
The only charge that can be made for the supply of information under the FOIA relates to disbursements, such as photocopying and postage, unless the cost of locating and extracting the information is high and exceeds a prescribed limit (£450 for the public sector, or £600 for the government) which would then permit the full cost to be charged.
"Information access requests" can be made by post or email and must be responded to within a short timeframe, usually 20 days. Only the competing public interests for and against disclosure can be taken into account when a request is made. The interests of anyone wishing to prevent access to the information are irrelevant and there is nothing to prevent information being obtained by e.g. commercial rivals or potential litigants.
There is a right of appeal against a refusal to disclose information, initially to the Information Commissioner and then to the Information Tribunal.
Practical Implications
The FOI provides a general right of access to a very wide range of information (including in relation to projects, tenders and planning matters) which could give rise to opportunities and risks for developers and others involved in the property industry.The FOI could also prove a useful tool for special interest groups such as environmental campaigners or anyone concerned about council expenditure, for example.
However, the opportunities to gain significant information (such as pricing terms awarded or tendered by competitors) may be limited due to the list of 24 exemptions. These include defence, "communications with Her Majesty", the formulation of government policy, information provided in confidence and commercial interests. Several of the exemptions are "absolute", the remainder being "qualified" i.e. requiring consideration of whether the public interest in maintaining the exclusion is outweighed by the public interest in disclosure – the "public interest test".
The FOIA provides that it is a criminal offence to destroy data if a valid request has been made under the Act. There have been reports of Whitehall departments and councils shredding documents in anticipation of the FOI coming into force and it has also been reported that the London Mayor has admitted that his office had a "shredding week" to destroy documents ahead of the new disclosure rules.
Environmental Information Regulations
The public also have rights to access environmental information as a result of the Environmental Information Regulations 2004 (the EIR), which also came into force on 1 January 2005. "Environmental information" has a wide meaning and includes such matters as road-building or housing policies, in addition to the usual environmental matters.
Rights of access to information under the EIR are broader than under the FOIA and there are fewer exemptions, none of which are absolute. Requests can be oral as well as in writing and a reasonable charge can be made for providing the information. Time limits for the responding to requests under the EIR are similar to the FOIA.
Protection Against Disclosure
Other than information about individuals protected under the Data Protection Act, third parties have very little protection against the new disclosure requirements of the FOIA and the EIR. They do not even have to be notified that information relating to them has been, or will be, disclosed. In reality, it is of little comfort that the Code of Practice recommends that reasonable steps are taken to give third parties notice of disclosure, or at least to notify them afterwards.
The only practical step available to third parties when providing information to a public body is to specify whether it is considered confidential. This opens up the possibility of obtaining an injunction to prevent disclosure at a later date, although it cannot be guaranteed. However, information that is merely embarrassing or commercially sensitive cannot be kept secret.
Finally
Despite commentators predictions that the numerous exemptions would render the freedom of information legislation no more than a damp squib, the last few months since 1 January, have seen a series of controversial revelations based on freedom of information disclosures. These include such matters as the background to Railtrack's administration, MP's expense claims, the Prime Minister's guest list at Chequers and judge's pensions. It is likely that there will be many others!
It is clear that the FOI and The EIR represent both opportunities and risks across the board and any commercial organisation that takes advantage of these could steal a march on its rivals and competitors.
