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Freedom of information: how to manage it

Freedom of information (FOI) should not be confused with data protection and the recently implemented General Data Protection Regulation (GDPR) or the even more recently implemented regulations on the accessibility of websites.

FOI refers to the provisions of the Freedom of Information Act (FOIA) 2000, which provides public access to information held by public authorities. It does this in two ways:

  • public authorities are obliged to publish certain information about their activities;
  • members of the public are entitled to request information from public authorities.

The Act covers any recorded information that is held by a public authority in England, Wales and Northern Ireland, including town, parish and community councils. Recorded information includes printed documents, computer files, letters, emails, photographs and sound or video recordings. The Act came fully into force on 1 January 2005.

The principles which underline the legislation are as follows:

  • Everybody has a right to access official information. This means that information should be kept private only when there is a good reason to do so and it is permitted by the Act; disclosure of information should be the norm.
  • An applicant (requester) does not need to give a council a reason for wanting the information. On the contrary, the council must justify refusing them information.
  • Councils must treat all requests for information equally, except under some circumstances relating to vexatious requests and personal data. Councils should treat all requesters equally, whether they are journalists, local residents, public authority employees or foreign researchers.
  • Since councils should treat all requesters equally, they should only disclose information under the Act if they would disclose it to anyone else who asked. In other words, councils should consider any information released under the Act as if it were being publicly released to the whole world.

The Act is primarily an expression of the idea that all activity undertaken by public authorities should be done openly and transparently and should be able to withstand scrutiny. A rule of thumb for councillors and officers is to continually ask themselves whether they would be comfortable if what they were doing was made public. The Freedom of Information Act shines the light of day on council affairs and puts the public in charge of where that light is shone.

We probably all know of issues or things which our councils do and which would be convenient if they were kept private. We know that once they are publicly discussed there will be a big debate about them or even active opposition to them. However, that’s democracy! Most council decisions should be made out in the open and councillors should be prepared to defend their decisions. The only really valid exceptions are discussions of salaries and other personnel matters relating to individual staff and commercially sensitive information such as tenders, which could damage the council’s ability to obtain value for money or a supplier’s ability to compete.

Councils may also be aware of the use of vexatious FOI requests by members of the public in an attempt to overwhelm a council with work and bring it grinding to a halt, or alternatively to scour a council’s records in the hope of finding something damaging to use against them. The ironic thing about approaches like this is that often the targets for the vexatious behaviour are council members but the people who always end up toiling to respond to them are the clerk and other staff.

The best approach for councils if they want to minimise the number of FOI requests that they have to respond to and create a feeling of being an open, transparent organisation is to publish as much information as possible before being asked to do so. A council must publish certain information, set out in a “publication scheme”, and helpfully the Information Commissioner’s Office (ICO) provides guidance for town, parish and community councils on what a publication scheme should contain. This guidance is tucked away on the ICO website but it can be found at: https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fico.org.uk%2Fmedia%2Ffor-organisations%2Fdocuments%2F1266%2Fparish_council_information_guide.doc.

This guidance came out in 2009, and no publication scheme should now be dated before this. Note, however, that there is nothing to stop a council publishing more information about its affairs, which in turn will reduce the scope for additional FOI requests.

There are circumstances where a council can refuse to respond to an FOI request or respond to it in a limited way. In some cases, there will be a good reason why you should not make public some or all of the information requested. You can refuse an entire request under the following circumstances:

  • It would cost too much or take too much staff time to deal with the request.
  • The request is vexatious.
  • The request repeats a previous request from the same person.

There are also some exemptions, including requests relating to personnel and commercially sensitive data as mentioned above, as well as things that are unlikely to affect the local council sector, such as information related to national security. Clearly, however, the more open and transparent a council decides to be, the less likely it is that it will need to respond to FOI requests.

Anyone wanting access to more detailed information about the workings of the Freedom of Information Act should consult the following section of the ICO website:

https://ico.org.uk/for-organisations/guide-to-freedom-of-information/. This guidance can be downloaded in PDF format at: https://ico.org.uk/media/for-organisations/guide-to-freedom-of-information-4-9.pdf.

A full discussion of publication schemes is available at: https://ico.org.uk/for-organisations/guide-to-freedom-of-information/publication-scheme/.

Nick Randle OBE is Managing Director of Local Government Resource Centre Associates (LGRC). Founded in 2013, LGRC is an independent professional services provider focused on the town, parish and community council sector. LGRC works to bring best practice to every aspect of a local council’s activities – from community strategy and planning through to service delivery and council governance and administration. It provides consultancy services, training, locum and interim staff, and outsourcing capabilities. LGRC staff and associates are a mixture of skilled local council practitioners and functional specialists. They have a wide range of experience and a significant record of successful client assignments. For more information, visit www.lgrc.uk or email info@lgrc.uk.

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Written by Nick Randle OBE, Managing Director, Local Government Resource Centre Associates
As appeared in Clerks & Councils Direct, March 2021
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