Freedom of Information Act 2000
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Freedom of Information Act 2000 and Environmental Information Regulations 2004
DHSSPS Procedures Manual
A Guide for use by all staff, in the Department of Health, Social Services and Public Safety, for progressing a Request for Information under the Freedom of Information Act and the Environmental Information Regulations
Issued by Information Management Branch
DHSSPS Procedure Manual – Updated March 2014 Contents
Section 1 INTRODUCTION
Section 2 INFORMATION ACCESS REGIMES
What do these Information Access regimes do? Who can make a request for information? What information is covered by the right of access? Do we ‘hold’ the information?
Section 3 ROLES AND RESPONSIBILITIES
All Staff Local Information Managers (LIMs) Business Area Management The FOI Unit Senior Management & Directors Central FOI Team (OFMDFM) Departmental Solicitor’s Office (DSO)
Section 4 PROCESSING A REQUEST FOR INFORMATION (RFI)
Recognising an RFI Information available by other means A Valid RFI Mixed or Hybrid Requests Receipt of an RFI RFI Logging and Tracking Obtaining a Reference Number from FOI Unit Internal Transfer of an RFI External Transfer of an RFI Weekly Notification of RFIs to FOI Unit Clarifying an RFI Search & Retrieval of Records Information has been destroyed or cannot be located Estimate Fee – Charging a Fee (if appropriate) Reviewing information Protective Markings Consulting Third Parties Formal Consultation with Third Parties Informal Consultation Releasing All Information
2 Records Schedules When are Schedules not required? Considering possible exemptions Withholding All Information Withholding Some Information Redacting or Blanking Out Information RFI File Retention Procedural guidance for Ministers agreed by the Executive (covers Executive- related matters, North/South matters, East/West matters, information held by Assembly Committees)
Section 5 THE INTERNAL REVIEW PROCESS
Initiating a Review Handling a Review Procedures to be followed by the FOI Unit on receipt of a review application Procedures to be followed by the Director of Personnel & Corporate Services (as Reviewing Officer)
Section 6 REVIEW BY THE INFORMATION COMMISSIONER The Information Commissioner Procedures to be followed by the FOI Team on receipt of a request for papers by the Information Commissioner The Information Tribunal
Section 7 APPLYING THE PUBLIC INTEREST TEST
Section 8 EIR EXCEPTIONS
DHSSPS Procedure Manual – Updated March 2014 APPENDICES
Appendix 1 Redaction or Blanking Out
Appendix 2 Outline of Process
4 P a g e | 5
INTRODUCTION
1.1 This manual provides detailed guidance to staff responsible for dealing with Requests for Information (RFI) made under either the Freedom of Information Act 2000 or the Environmental Information Regulations 2004 .
1.2 The overall aim is to provide staff with guidance and information required to enable them to recognise and manage RFIs and also to encourage consistency and best practice in the operation of the Freedom of Information Act (FOIA) and the Environmental Information Regulations (EIRs).
1.3 This manual outlines the approach to managing RFIs and should be read in conjunction with any additional guidance issued by the Freedom of Information Unit in Information Management Branch (IMB).
1.4 The management of requests for personal information under the Data Protection Act 1998 (DPA) is not dealt with in this document but is dealt with in the Department’s Data Protection Manual.
1.5 This manual is accessible to all staff on the Departmental Intranet and will be updated regularly by the FOI UNIT to reflect changing circumstances.
1.6 If there is any doubt about the practice to be followed you should consult with staff in the Information Management Branch.
Further Advice and Guidance
1.7 Further advice and guidance on the administration of RFIs can be obtained from the FOI UNIT. Staff may also wish to refer to the Freedom of Information section on the Departmental Intranet which has a wide range of material ranging from general awareness training to detailed guidance on FOI exemptions.
1.8 The links in this paragraph provide contact details for staff in the FOI UNIT, DHSSPS Local Information Managers, NICS Departmental Information Managers, and HSC FOI Liaison Officers.
DHSSPS Procedure Manual – Updated March 2014 INFORMATION ACCESS REGIMES
2.1 Legislation which provides the general right of access to information from is:
The Freedom of Information Act (FOIA) 2000 ; and
The Environmental Information Regulations (EIRs) 2004
2.2 The FOIA covers all the policy and administrative information held by this Department. EIRs expand the legal right of access to environmental information, i.e. the state of the elements of the environment (such as air, water, landscape, substances, energy, noise, radiation, waste emissions, discharges and other releases into the environment) and the interactions between them.
What do these Information Access regimes do?
2.3 These Information Access regimes, which are totally retrospective, establish statutory rights for anyone:
to be told whether the information requested is held by us; and
the right of access to that information (where possible in the format requested, for example, photocopy, electronic copy).
2.4 Requests for Information (RFIs) under the FOIA and the EIRs are subject to certain FOI exemptions or EIR exceptions.
2.5 The FOIA also establishes arrangements for enforcement and appeal through the Information Commissioner’s Office and the Information Tribunal.
2.6 All RFIs dealt with under FOI/EIRs must be responded to promptly or in any event within 20 working days of receipt. It is important to note however that the 20 working day deadline is the maximum, not the minimum, time limit.
Who can make a request for information?
2.7 Anyone can make a request for information under the FOIA and EIRs. The Act makes no distinction between requests from people who are citizens of, or who are currently in the UK, Europe or any country in the world. All requests must be treated the same irrespective of the country of origin.
DHSSPS Procedure Manual – Updated March 2014 What information is covered by the right of access?
2.8 All recorded information held by the Department is covered by the right of access. ‘Holding’ information includes holding a copy of a record produced or supplied by someone else. The following are some factors that may need to be considered before deciding whether the information that has been requested falls within this category.
Some or all of the information is held by another Department. If some or all of the requested information is not held by this Department, but might be held by another Department, then it may be necessary to transfer the request. Further information can be found in paragraph 4.20 of this manual which deals with transferring requests.
Information that is held on behalf of someone else. If the Department only holds information on behalf of someone else, for example, holding Trade Union information on their computer system, then the Department may not have to provide the information in response to a request. Whether information is held on behalf of someone else is a difficult question and will depend on the precise circumstances involved. If you are dealing with a request and you think that the relevant information may only be held on behalf of someone else then it is important to seek advice from the FOI UNIT.
Information not necessarily documents. The FOIA/EIRs entitles individuals to have access to information and not necessarily to documents. However, it may often be the case that the easiest way to provide the requested information is to supply a copy of the relevant document since it may contain the information being requested. Note that a requester may wish to view original documents or request disclosed information to be sent electronically or in hard copy.
Recorded information. The right of access applies to information recorded in any form. This includes:
information that is held electronically (such as on a laptop, PC, Blackberries/hand-held computer or IT networks);
information that is recorded on paper (such as a letter, memorandum or papers in a file); and
sound and video recordings (such as a CD, DVD or video tape).
notes that have been written in the margins of a document, on a note pad or post-it note are included as part of the recorded information.
DHSSPS Procedure Manual – Updated March 2014 Stored information. The right of access also applies to information that is in storage, for example, if it is in the Department’s Central Registered File System or an out-sourced record storage site. Where Departmental information is now held by Public Records Office Northern Ireland (PRONI) the request will need to be transferred by agreement to PRONI.
Do we ‘hold’ the information?
2.9 In some cases it may not be clear whether information which is physically present on the premises or the Department’s systems is properly to be regarded as ‘held’ by the Department. Examples include:
private material brought into the office by Ministers or officials;
material belonging to other people or bodies;
Trade Union material;
constituency material; or
material relating to party political matters.
2.10 If there is any doubt about whether the Department 'holds' material which is on premises or Departmental systems, seek advice from the FOI UNIT.
DHSSPS Procedure Manual – Updated March 2014 ROLES AND RESPONSIBILITIES
All Staff
3.1 All staff should be fully aware of their responsibilities and obligations under the Freedom of Information Act (FOIA), the Environmental Information Regulations (EIRs), and their interface with the Data Protection Act (DPA). All staff should be able to recognise and handle requests for information under these regimes. FOI and Records Management are also included as items on induction training for new staff joining the Department.
3.2 All staff have to recognise the importance of being vigilant when dealing with written correspondence or in the case of EIRs verbal enquiries, so that requests for information which are not part of normal business processes1 can be logged and answered as quickly as possible by their Local Information Manager/business area. If staff are in any doubt, they should immediately pass the correspondence or enquiry to their line manager or consult the FOI UNIT.
3.3 All staff should have received a FOI Staff Handout (also on the intranet) containing information and contact details for key staff trained in dealing with RFIs. Please contact FOI UNIT if you require a copy
Local Information Managers (LIMs)
3.4 LIMs play a key role in the information access process. Their role is to:
manage RFIs through to conclusion (including Final Action Sheet) liaise with FOI Unit as required help to estimate fees liaise/correspond with the person making the request liaise/correspond with third parties2 liaise with Senior Management review information make the decision disclose the information
1 Where the information requested would be provided within 20 working days as part of normal business processes, for example, requests for leaflets, it should be processed as normal and not treated as an FOI request. 2 Except when the requestor is from the media. In these cases LIMs should liaise with Information Office inform the Information Office of any requests received from the media
3.5 Generally, LIMs should have the authority to deal with all requests. They should liaise with key people, make the decision and their decision should be endorsed by a Senior Civil Servant (usually Gr5)
3.6 A current list of LIMs and their contact details is available.
Business Area Management
3.7 Business Area Management must enable compliance with the FOIA by ensuring that LIMs are given:
every assistance to progress RFIs promptly access to key staff.
The FOI Unit
3.8 The FOI Unit manages the FOI business of the Department by:
providing FOI training and awareness providing advice and guidance to LIMs managing the NICS FOI tracking system managing appeals managing the Department’s Publication Scheme
Senior Management and Directors
3.9 A member of the Senior Civil Service must endorse all FOI/EIR decisions on requests (i.e. the appropriate Senior Civil Servant in the relevant business area must endorse any decision to withhold or disclose FOI/EIR information).
Central FOI Team
3.10 The Central FOI Team within OFMDFM provides assistance and advice on handling RFIs across the NICS. It also:
identifies, and co-ordinates responses to, round-robin requests collates requests received across the NICS for submission to Secretary of State and Ministers for information
Departmental Solicitor’s Office (DSO) 3.11 The DSO will advise on the legal application of the FOIA/EIRs. Their role is not to decide on which exemption, if any, applies to an RFI but to advise if the application of exemption(s) proposed by the LIM is legal. PROCESSING A REQUEST FOR INFORMATION (RFI)
Recognising an RFI
Normal Business
4.1 Staff throughout the Department provide information as part of their day-to- day business processes, for example, requests for information leaflets, annual reports etc. It is not intended that RFI handling processes replace existing business processes that are functioning well.
4.2Where the information requested is provided as part of normal business processes, it should be processed as normal and not recorded as an RFI. However, staff should take into account the 20 working day turnaround requirement of FOI/EIR when answering all information requests.
Requests received from MLAs and MPs (e.g. AQs, PQs, and POEs)
4.2a If you receive a request from a MLA or MP directly in to your branch, please contact the FOI Unit for who will advise if it should be handled as an FOI request
Information available by other means
4.3 Once logged with the LIM, the LIM will determine if the information requested is accessible by other means (e.g. already published and included in the DHSSPS Website).
4.4 If the information is available by other means, acknowledge receipt of the request and inform the requester where the information is available by using the appropriate Standard Letter 2 (SL2) .
A Valid RFI
4.5 A RFI is deemed valid and must be processed where it meets the criteria under Section 8 of the FOIA, namely:
it has been received in writing (it may be an e-mail);
states the name of the requester and address for correspondence (e-mail address acceptable); and
describes the information requested. describes the information requested.
Requests for environmental information under the Environmental Information Regulations (EIRs) may also be made verbally.
4.6 The requester does not have to quote either the FOIA or the EIRs to have their request treated as such.
4.7 The FOIA and EIRs means that the Department has to deal with more complex requests for information. These are requests for information which go beyond the day-to-day correspondence that we normally deal with. RFIs may be straightforward, for example,
where the Department holds the information and no exemptions apply; or
where the Department does not hold the information.
Or RFIs may be complex for a variety of reasons, for example,
requests may involve consultation with other public bodies or with third parties;
it may be unclear as to whether or not the information sought is exempt;
requests on issues which have a high public profile;
requests which may relate to financial interests;
requests which may be part of an orchestrated campaign;
mixed/hybrid request i.e. request for information under FOI and EIR and/or DPA; or
where requests are considered precedent setting/sensitive – in which case the Central FOI Team should be consulted before any decisions are taken.
Mixed or Hybrid Requests 4.8 These are complex requests to process. For instance, a request may ask for "all the information about my case" and this may well give rise to the need to consider the request and different parts of it under all three regimes, i.e. FOI, DPA and EIR 4.9 A mixed request must also be processed within the appropriate timescale. For instance, a request which contains information which is both personal information under the DPA and information to be considered under the FOIA should be processed within 20 working days. If this is not possible, the FOIA information should be provided within 20 working days with an acknowledgement that the release of other information under the Data Protection Act is being considered. Receipt of an RFI in your business area
4.10 An RFI may be received in any business area within the Department. It is therefore important that all staff are familiar with the handling processes required to deal with an RFI.
4.11 All staff need to be vigilant when dealing with correspondence or verbal enquiries so that RFIs which are clearly outside normal business processes are filtered out and passed immediately to the LIM who can in turn ask IMB to log it appropriately. A list of current Local Information Managers is available.
4.12 As the 20 working day turnaround starts the day following the day of receipt, it is essential that full details of the RFI are passed to the LIM or IMB immediately if the request is received directly into the business area. In the event of the LIM not being available the RFI must be passed IMB so that it can be logged and acknowledged.
RFI Logging and Tracking
4.13 Upon receipt of a Freedom of Information request into the FOI mailbox , the FOI Unit will establish which LIM is best placed to manage the request. Whenever a request is clear and has been accepted by a LIM, the FOI Unit will send an acknowledgement letter to the requestor and log the request on the NICS and Departmental FOI tracking systems. These systems generate a unique FOI reference number for the request. The unique FOI reference number must be included in the title of all records relating to the request.
It is important that an audit trail is kept of actions taken in the handling of an RFI. and anything relating to the request must be kept in the relevant container. This will aid any subsequent internal review.
Management of the FOI request
4.14 The FOI Unit will create a container for the request in TRIM. A TRIM link to the container will be sent by email to the LIM. The container title will include the unique FOI reference number as well as the surname of the requestor
Example: Freedom of Information Request DHSSPS 999/07 12345 - Bloggs
The original request along with any clarification correspondence must be stored in the container.
As the request is progressed, the Local Information Manager will create the following records: Records Schedule 1, Records Schedule 2 and Estimate of Cost (if required). There may be other relevant records e.g. third party correspondence, public interest test, fees request etc. These records must be stored in the container and titled appropriately. The response to the request, drafted using the appropriate standard letter template, along with the appropriate Senior Civil Servant/Grade 5 approval must also be stored in the container. If the response is issued by email, the email must be stored (catalogued) in the container also.
Relevant Records
4.15 All relevant records must be copied into the FOI container for the request. This includes records both records within TRIM and any paper records there may be. These records must be clearly identified as copies, scanned in where necessary, and must include the unique FOI reference number in the titles.
Example: Copy of minutes of Board Meeting – December 2007 DHSSPS 999/07 12345
Titling FOI records
4.16 To facilitate easy retrieval of information it is important that records are titled properly. For example
Original Request – Health Statistics - DHSSPS 1000/07 23456 Clarified Request – Health Statistics - DHSSPS 1000/07 23456 Acknowledgement Letter – Health Statistics - DHSSPS 1000/07 23456
Where the subject of a request and/or the nature of the information contained within a document is sensitive and needs to be restricted an access control should be applied.
Finalising records
4.17 As with all electronic records in the Department’s EDRM system, records must be made final at the appropriate time. For example, the FOI acknowledgement letter should be made final once it has been sent. Similarly, the email or letter containing the final response should be made final once it has been sent.
Tracking System and Notification to FOI Unit
4.18 Whenever the response to the request has been issued the LIM must notify the FOI Unit and complete the Final Action sheet saved in the relevant TRIM container. Responses to FOI requests which contain significant disclosure of information will be published on the Department’s web-site.
Access Controls 4.19 Access Controls restricting access to information should be applied to individual documents contained within the container as required.
In exceptional circumstances, Access Controls restricting access to FOI request containers may be applied but the FOI Unit must be contacted before controls are applied.
Handling requests spanning Directorates
4.20 A request for information (RFI) may be received into the Department which requires action in two or more Directorates.
The LIM who receives the request must manage the request if he/she has significant input to it and it will be that LIM’s responsibility estimate and manage fees and disbursements and to correspond with the requester/third parties.
If the LIM has no input it should be transferred by agreement to another LIM.
It is important that the LIM in each Directorate, holding information relative to the RFI, is involved in the preparation of answering the request i.e. searching and retrieving, estimating fees and applying exemptions.
All LIMs involved should meet to discuss the request and agree on how it is to be managed.
Records Schedule 1 (RFI 4) – Each LIM must complete this document for all information held by his/her respective Directorate. The LIM managing the request should save a copy of each completed Records Schedule 1into the appropriate container in TRIM
Records Schedule 2 (RFI 5) – This document will contain details of those records being disclosed and those being withheld. It is the responsibility of each LIM to meet with staff within their own Directorate to review records, discuss appropriate exemptions and seek approval from their respective Senior Civil Servant in relation to the information owned by that Directorate. It will then be necessary for all LIMs involved to meet to co-ordinate a final Records Schedule 2 for issue to the requester.
The LIM managing the request will prepare the final Records Schedule 2 (RFI 5) and seek approval of his/her Senior Civil Servant before issue. One copy of Records Schedule 2 should be issued to the requester and the other copy saved into the appropriate container in TRIM.
Internal Transfer of an RFI 4.21 The LIM should determine whether the RFI is relevant to their Directorate. If it is not relevant, the RFI (and the unique reference number) must then be transferred by agreement to the appropriate LIM. Again it is emphasised that any transfer must be done as soon as possible. The transfer must be recorded on the RFI Monitoring Spreadsheet and by IMB on the FOI Tracking System.
External Transfer of an RFI
4.22 The LIM should determine whether or not the RFI relates to this Department. If it does not, the LIM should consult with the relevant public authority to confirm that they will accept the request if it is subsequently transferred. Before transferring the request, the LIM must issue Standard Letter 15 (SL 15) to obtain agreement from the requester. Alternatively, agreement may be sought by contacting the requester by phone or e-mail and simply recording agreement3. The applicant’s agreement should then be forwarded with the request to the Public Authority to whom the request is transferred.
Acknowledging and Recording an RFI
4.23 The RFI will be acknowledged as soon as possible after receipt by IMB using the appropriate Standard Letter 1 (SL 1). The Public Information Leaflet will also be enclosed with SL1. Note: the 20 working day clock starts on the day after the RFI is received. A request is received when it is delivered to the public authority or when it is delivered to the inbox of a member of staff. The date of receipt is not the date the request is passed to the appropriate person for processing.
Details of progress on the RFI will be recorded on the RFI Monitoring Spreadsheet and input by IMB onto the FOI Tracking System. An Activity Log (RFI 2) has been provided to assist progressing an RFI – when completed it should be retained with the other RFI papers in the appropriate container in TRIM.
Note: Papers relating to RFIs will be kept for 3 years.
Clarifying an RFI
4.24 The Department has a duty to provide advice and assistance, so far as it would be reasonable, to people who have made or propose to make requests for information.
3 If the requestor is a member of the media, any contact must be made through the Information Office 4.25 If the request is unclear or is very broad, the LIM must contact the requester to seek clarification or a narrowing of the request. Standard Letter 3 (SL 3) can be used or it may be quicker to telephone the requester.
4.26 It is important to note that a request is not deemed to be valid until clarification is received. However the ICO frowns upon requests were clarification is not sought at the earliest opportunity after receipt and equally seeking clarification should not be used as a delaying tactic.
4.27 It is important that a detailed record is kept of any letters, e-mails and telephone conversations with requesters in the course of providing advice and assistance.
Search & Retrieval of Records
4.28 The LIM should, as soon as possible, arrange for the search and retrieval of the relevant records. This search should cover all information storage – paper and electronic.
4.29 A Records Schedule 1 (RFI 4) listing and describing the records covered by the request, and the search terms/key words used in the search, must be completed and held in the RFI container. Further details on Records Schedules can be found in paragraph 4.61 of this manual.
Information has been destroyed or cannot be located
4.30 If the requested information is not held e.g. destroyed in accordance with any branch disposal schedules, the requester should be notified using the appropriate Standard Letter 14 (SL 14). There is no requirement to seek the information from another source.
4.31 If however the requested information cannot be found and you are certain the department has it, consult the FOI Unit. It is important that a thorough search is conducted and details of the search are recorded e.g. which systems or files were searched.
Estimate Fee - Charging a Fee (if appropriate)
4.32 The FOI Act affords the Department the opportunity not to comply with expensive requests. A LIM must give consideration to whether the cost of search and retrieval will exceed the appropriate limit i.e. £600.
4.33 The £600 limit covers the time taken to locate and retrieve the information and for the first “read through”. It does not cover the time taken to consider the decision i.e. whether an exemption applies and the public interest test. The £600 limit is based on the time of a member of staff being assessed at £25 per hour, irrespective of grade. It therefore allows for 24 hours of free time before the fee threshold is reached. It is important to estimate fees for all requests for use in cases where linked requests are received.
4.34 For requests, which cost less than £600 no standard fee may be charged, but the Department can charge the full cost of disbursements (photocopying, printing and posting). It is important that fees are estimated as soon as possible so that the requester can be informed of any charges at the outset.
4.35 If responding to the request would cost more than £600 the Department is not obliged to comply with the request. However, if this situation should arise, please contact the FOI Unit in the first instance for guidance. Fees Guidance is also available on the ICO’s website.
4.36 The amount to be charged will be the entire fee that is calculated. The LIM must advise the applicant immediately using the appropriate Standard Letter 4 (SL 4) if they think fees are appropriate.
4.37 The 20 working day time limit is suspended pending receipt of the fee. Details relating to fees must be saved to the relevant container, on the RFI monitoring spreadsheet and input by IMB to the FOI Tracking System.
4.38 If the fee is received, issue the appropriate Standard Letter 5 (SL 5) and proceed to deal with the request. The 20 working day clock resumes once the fee has been received.
4.39 If the fee has not been paid within 3 months, issue the appropriate Standard Letter 6 (SL 6), inform IMB who will update the RFI monitoring spreadsheet and FOI Tracking System and close the RFI container. A copy of the letter must be held in the RFI container.
Reviewing information
4.40 The LIM, in conjunction with appropriate staff if necessary, should carry out a detailed review of each record listed on the Records Schedule 1 (RFI 4) to establish its relevance to the information requested and to evaluate whether any of the FOI and/or EIR exemptions apply. Relevant records should be listed on the Records Schedule 2 (RFI 5) which will subsequently be sent to the requester.
4.41 As well as links to guidance on exemptions issued by Information Commissioner’s Office (ICO) there is further guidance via the FOI pages on the IMB section of the Intranet. Section 7 of this manual deals with the public interest test. 4.42 If none of the exemptions apply, the item of information is considered disclosable.
4.43 If application of the public interest test is being actively considered and it is likely that this could exceed the 20 working day time limit, the requester should be informed using the appropriate Standard Letter 7 (SL 7) and given a target date for receipt of a full response. It should be noted that this will only apply in exceptional cases where every effort has been made to deal with the request promptly. IMB should be informed so the RFI monitoring spreadsheet and FOI Tracking System can be updated and a copy of the letter should be held in the relevant container.
Protective Markings
4.44 Protective markings are not in themselves a reason to withhold information, but they may be an indication that the information might be covered by an exemption. Consulting Third Parties
4.45 When considering the information to be released, staff should check whether any third party may have sent or supplied the information or have a close and direct interest in it.
4.46 If necessary, other Departments, public authorities or other third parties affected by disclosure of the information should be consulted. It is important to allow as much time as possible for this consultation and to ensure that the identity of the requestor is not revealed.
Note: Where consultation is required the request must still be responded to within 20 working days.
4.47 Examples of third party information which the Department may hold are: contracts; tendering for contracts; other commercial information; information provided by foreign governments; information provided by other public authorities; or personal information about individuals.
4.48 Consultation with third parties may play an important part in considering whether exemptions apply, particularly exemptions relating to confidentiality, commercial sensitivity and relations with devolved and international partners. However, even where this information is not exempt, you may need to think about informing third parties or obtaining their views on the release of the information. 4.49 It is important to remember that any views expressed by third parties concerning release of information provided by them to the Department are not binding. The Department holds the information, and as such, the Department is under the statutory duty to provide access to the information, not the third party. The only real exception to this is when the third party considers that the release of the information would be an actionable breach of confidence i.e. if the information is disclosed the provider or a third party could take the Department to Court. The Department has to take the final decision as to whether information should be released or not and a refusal by a third party to consent to the release of information is not binding.
Formal Consultation with third parties
4.50 Formal consultation should be carried out when the release of records, which would be exempt under Section 40 (personal information) or Section 43 (Commercial Interests) is being considered on public interest grounds.
4.51 When dealing with such requests for information, LIMs should bear in mind that the consideration of these exemption provisions is important. They require that a LIM shall only disclose information after having carefully considered whether disclosure of the information sought would be in the public interest.
4.52 Consideration must be given to relevant public interest factors for and against release. Therefore, public interest factors in favour of both withholding and disclosing the information must be clearly set out on paper to support the decision and recorded in the relevant container.
4.53 Release in the public interest should occur unless the public interest factors in support of withholding the information (including the privacy rights of a person) are of such significance that they outweigh the public interest factors in favour of disclosure.
4.54 Where such release is contemplated in the public interest, formal consultation must take place prior to any decision to release being taken.
4.55 If, following such consultation, the consultee remains opposed to the disclosure of the information then the final decision rests with the Department.
4.56 In all cases where formal consultation is being initiated Standard Letter 8 (SL 8) and Standard Letter 9 (SL9) should be used.
4.57 Formal consultation must be initiated as soon as possible following receipt of the request.
Informal Consultation
4.58 LIMs should consult, informally, with requesters and/or third parties where dialogue may improve understanding the issues of a particular case. 4.59 Informal consultation can be very helpful in terms of:
obtaining supporting views on the application of an exemption; supporting the basis for a decision; identifying the context of records which may be helpful in terms of establishing the sensitivity or otherwise of the records; assisting in a decision regarding the possible need for formal consultation; refining the exact nature of a request for information; or discussing potential disclosure of 3rd party information.
Releasing All Information
4.60 The LIM must record all information being released on the Records Schedule 2 (RFI 5). The information being released should be issued to the requester using the appropriate Standard Letter 11 (SL 11).
4.61 The RFI monitoring spreadsheet and FOI Tracking System will be updated by IMB and a copy of the letter and details of all information being released held in the relevant container.
Records Schedules
4.62 Records Schedule 1 (RFI 4) lists and describes the records sources searched, the key words/terms used in the search and the records, identified as being within the remit of the request application. Records Schedule 2 (RFI 5) lists and describes the records released to the requester and the records withheld along with details of exemptions applied.
4.63 It is recommended that each schedule lists each record sequentially by number and contains the following information:
the date of the record;
the author of the record and either the person or persons to whom it is addressed or the title of the record, if it is a report or a submission of some kind; a brief but sufficient description of the record or its contents;
[if appropriate] a clear indication of the parts(s) relevant to the request, e.g. “paragraph 5 or lines 2 – 14 on page 3”.
4.64 There may be rare occasions when records can be grouped rather than listed individually. This should only be used as a last resort where the number of records is particularly large. Where grouped all must be traceable. Seek advice from FOI Unit.
4.65 Records Schedule 2 (RFI 5) must be issued to the requester and a copy held in the container. The Schedule should contain the appropriate information from Records Schedule 1 (RFI 4) and should clearly set out exemptions applied, and indicate in broad terms the reasons they apply and any Public Interest considerations.
When are Schedules not required?
4.66 The FOI Act allows public bodies to respond to requests on the basis of refusing to confirm or deny the existence of such records. The use of the refusal to confirm or deny provision will be justified only in certain situations. These provisions are necessary because in some instances merely confirming the existence of information will directly or implicitly disclose withheld information.
Considering possible exemptions
4.67 If the LIM feels there is a reason to withhold the information, he/she must consider the exemptions they wish to apply.
4.68 If one or more exemptions apply, the LIM must establish whether the exemption is ‘absolute’ or ‘qualified and subject to a public interest test’. See Section 7 of this manual for guidance on the application of the public interest test.
4.69 If the exemption is ‘absolute’, or withholding all or part of the information on the basis of the particular ‘qualified’ exemption is supported by the public interest test, then that information should be withheld.
Withholding All Information
4.70 If the decision is to withhold all of the information, the appropriate Standard Letter 12 (SL 12) and Records Schedule 2 (RFI 5) should be issued setting out which exemptions apply and explaining why it is in the public interest to withhold the information.
4.71 The RFI monitoring spreadsheet and FOI Tracking System will be updated and a copy of the letter and Records Schedule 2 (RFI 5) should be saved in the relevant container.
Withholding Some Information 4.72 If the decision is to withhold some of the information, the information being released and the appropriate Standard Letter 13 (SL 13) should be issued to the requester. The letter and Records Schedule 2 must set out which exemptions apply and explains why it is in the public interest to withhold some of the information.
4.73 The RFI monitoring spreadsheet and FOI Tracking System will be updated and a copy of the letter and Records Schedule 2 (RFI 5) should be saved in the relevant container.
4.74 The original records containing the full information and a copy of the redacted version of any record which is partially disclosed will be marked for retention for at least 3 years after the last action on the request including internal review or appeal process, if appropriate.
Redacting or Blanking Out Information
4.75 The Lord Chancellor’s Code of Practice on Records Management, created under Section 46 of the FOI Act, states that where a complete document cannot be made available ‘Authorities should consider whether parts of records might be released, if the sensitive information were blanked out’.
4.76 Redaction is the separation of disclosable from non-disclosable information by blocking out individual words, sentences or paragraphs or the removal of whole pages prior to the release of the document.
4.77 Information which should not be released can be deleted from any document, for instance by 'black-penning' the information to be protected, and leaving the other contents which will be released. If a requester has requested all the information in a particular document but it is necessary to redact some of that information because it is exempt, you must make it clear that redactions have taken place, and cite the relevant exemption to explain why the information has been redacted.
4.78 It is important to bear in mind however, that the FOIA and EIRs apply to information, and not documents. Whilst the information requested is likely to be contained in a document, this does not mean that the document has to be released with exempt material redacted from it. It may be more appropriate to release information by creating a new document containing only that information that can be disclosed. This is particularly relevant where the majority of the information contained in the document does not fall within the scope of the request.
4.79 If you are making redactions on 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 Word document, indicating where a redaction has taken place, citing the exemption and sending this new document to the requester.
4.80 More detailed guidance on how to carry out redaction is contained in Appendix 2 of this manual.
RFI File Retention
4.81 The RFI File and associated papers will retained on TRIM for 3 years after the last action on the request or 3 years after the time limit for completion of the entire internal review or appeal process, if appropriate.
4.82 Only in exceptional circumstances will this time limit be increased. .
Further procedural guidance
4.83 Further guidance including guidance on Executive-related matters, North/South matters, East/West matters, information held by Assembly Committees etc. will be updated on the FOI Intranet page THE INTERNAL REVIEW PROCESS
Initiating a Review
5.1 The requester has the right to ask for an internal review within two calendar months of the issue of the standard letter giving a decision on the request about any aspect of the request handling process, for example, fee charge, decision to withhold, application of exemptions, length of time.
5.2 When a requester asks for a review of the Department’s response to their original request for information, the internal review process must be initiated.
5.3 In the first instance the requester, as instructed by the letter giving the original decision, will write to the Departmental Information Manager who will initiate the review process.
5.4 The FOI Unit will send the review request to the Head of Information Management Branch who will conduct the review. The FOI Unit will advise the LIM that a review request has been received.
Handling a Review
5.5 The review is a fresh decision in terms of the evaluation of the evidence and the application of the Act. The reviewing officer can consider new arguments put forward by the requester.
5.6 If the decision not to release all or part of the information is upheld by the Head of Information Management Branch the internal review mechanism within DHSSPS is deemed to be exhausted. The requester then has the right of appeal to the Information Commissioner. 5.7 The LIM will be notified of the internal review decision. 5.8 Internal reviews have to be completed in a reasonable timescale. As a matter of best practice it is recommended that:
simple considerations should be dealt with within 20 working days of receiving the complaint.
complex reviews - in particular where it is necessary to reconsider the public interest test – may take longer than 20 working days.
5.9 If it becomes clear at any stage of the internal review that the deadline set will be exceeded, the requester should be kept fully informed. A secondary deadline should also be set. Where an internal review will exceed the set deadline the FOI Unit should be kept informed.
Procedures to be followed by the FOI Unit on receipt of a review application 5.10 The FOI Unit will acknowledge the request indicating target completion date. 5.11 The Head of Information Management Branch, should make a decision within 20 working days of receiving the papers. However, if it is apparent that the internal review will take longer than the target time, for example, because of the complexity of the particular case, he/she should inform the requester and explain the reason for the delay.
5.12 The Head of Information Management Branch may wish to discuss details of the case with the LIM and request relevant papers.
5.13 When the review has been completed the FOI Unit will ensure that the results are recorded.
5.14 The decision letter will give the requester the right of appeal to the Information Commissioner.
5.15 The requester should be advised that such an appeal must be made in writing, should include copies of all relevant correspondence and should be sent to:
The Information Commissioner Wycliffe House Water Lane Wilmslow CHESHIRE SK9 5AF REVIEW ON APPEAL BY THE INFORMATION COMMISSIONER
The Information Commissioner
6.1 An independent appeal may be made to the Information Commissioner if a requester is not satisfied with the decision of the internal reviewer.
6.2 The Information Commissioner's Office is the independent statutory body which polices the operation of the Freedom of Information Act and the Environmental Information Regulations as well as the Data Protection Act.
6.3 Under the FOI Act the Information Commissioner performs the following roles:
The Commissioner may issue general guidance on good practice or "practice recommendations" directed at particular authorities.
If the Commissioner has received a request for a decision or considers certain information is relevant to determine whether a public authority has complied with Part I of the Act or the Codes of Practice he/she may serve an information notice on any public authority requiring it to provide that information.
Where the Information Commissioner considers a complaint, he/she will issue a decision notice setting out his/her view on whether the Act has been complied with. Where a breach of the Act is identified, the notice will specify the steps which must be taken by the authority in order to comply with that requirement and the timescale for compliance.
If the Commissioner is satisfied that a public authority has failed to comply with any of the requirements of Part I of the Act, he/she may serve on the authority an enforcement notice requiring the authority to take particular steps within a specified time to comply with those requirements.
Failure to comply with an Information, Decision or Enforcement Notice may be dealt with as though the public authority had committed contempt of court.
Procedures to be followed by the FOI Unit on receipt of a request for papers by the Information Commissioner
6.4 The FOI Unit will inform the relevant LIM and will send all relevant papers to the Information Commissioner without delay. 6.5 The following details should be recorded on the RFI monitoring spreadsheet:
date request received from Information Commissioner; and
date papers forwarded to Information Commissioner. 6.6 It should be noted that the Information Commissioner has the statutory authority to access all documents including those where an exemption has been claimed. The complete set of records coming within the scope of the request should be sent to the Information Commissioner, showing what information has been withheld and grounds for non-disclosure specifying the exemption(s) that apply and detailing the public interest test carried out.
6.7 The following details should also be recorded once the Information Commissioner’s decision has been made:
date of Commissioner’s decision;
date information sent to requester (If appropriate); and
records now sent to requester from the Commissioner (if appropriate)
The Information Tribunal
6.8 The Information Tribunal will hear appeals against notices issued by the Commissioner.
A requester or a public authority may appeal to the Information Tribunal against a decision notice. A public authority may also appeal to the Information Tribunal against an information notice or an enforcement notice served on it. On hearing the appeal the Information Tribunal may uphold the notice in its entirety, substitute an alternative notice or dismiss the notice.
The decision of the Information Tribunal may in turn be appealed on a point of law to the High Court of Justice in Northern Ireland.
Appeals from these notices can be heard by the Information Tribunal (a tribunal which is specifically for matters concerning enforcement notices or decision notices issued by the Information Commissioner). APPLYING THE PUBLIC INTEREST TEST
7.1 Where the public interest test applies to exemptions, the circumstances of each particular case and the exemption that covers the information will require careful consideration.
7.2 Where more time is required to reach a decision as to the balance of the public interest test the time limit to respond to the requester can be extended. However this must be minimal within a reasonable period and not seen as a stalling tactic in answering the request.
In this circumstance, the appropriate Standard Letter 7 (SL 7) must be issued as soon as possible. The RFI monitoring spreadsheet should be updated along with the RFI file.
7.3 The Freedom of Information Act does not define ‘the public interest’ and the following information is merely indicative. Some examples of the kinds of public interest considerations that might be taken into account include: i. In favour of disclosure -
the right of the public to have access to information;
disclosure will reveal reasons for decisions;
the accountability of administrators and scrutiny of decision-making processes; the need for the public to be better informed and more conversant on public affairs; the information will make a valuable contribution to the public debate on an issue; and accountability for the use of public funds.
ii. In favour of non-disclosure -
the need to preserve confidentiality having regard to the subject matter and the circumstances of the information;
where release of the records could impair a future decision; where premature release could contaminate the decision making process; where release of the records could impair the integrity and viability of the decision making process to a significant or substantial degree without a compensating benefit to the public;
when broader community interests must be considered, as distinct from those of the requester and the subject of the information; and the need to avoid serious damage to the proper working of government at the highest level.
7.4 If invoking any grounds for non-disclosure, the LIM must set out a reasoned argument as to why they apply and what precisely the effect of disclosure would be.
7.5When considering the public interest, appropriate weighting should be given to the arguments both for and against release. If the arguments are equally balanced then disclosure must be favoured over retention. Such an approach is consistent with the Act and more likely to withstand any subsequent internal review or appeal to the Information Commissioner. EIR EXCEPTIONS
8.1 Revised and strengthened Environmental Information Regulations (EIRs) also came into force on 1 January 2005. Like the FOIA they give access rights to any person, anywhere in the world, but they deal specifically with information relating to any decisions, activities and policy formulation that may have an impact on the environment.
8.2 The definition of environmental information is broad and includes such things as water pollution statistics, information about the built environment, the food chain, details of the public authority's health and safety policies, cost benefit analysis, details of discharges and emissions, and any information relating to policies, plans and programmes that affect, or are likely to affect, the environment.
8.3 The EIRs cover not only public authorities covered by FOI, but also other organisations carrying out functions of public administration towards the environment or under the control of public authorities and performing environmental functions.
8.4 The main features of the EIRs are:
Requests may be made orally or in writing. The public authority must reply within 20 working day. There is a limited range of qualified exemptions, all of which are subject to a public interest test. There is no upper limit for the cost of meeting a request beyond which the request may be refused.
8.5 Environmental information is exempt information under Section 39 of the FOIA. Any request for environmental information must be dealt with under the EIRs regime.
8.6 Similar to the FOI Act, there are certain exceptions under the EIRs, however, the Department should exercise a presumption in favour of disclosure. All EIR exceptions are subject to the public interest test. Information relating to emissions is subject to only a limited set of exceptions. There is no blanket exception for security bodies.
8.7 In all cases, the public interest in maintaining the exceptions must outweigh the public interest in disclosing it.
8.8 Further information is available on the ICO’s website 8.9 Under the EIRs the Department may refuse to disclose the information requested if: it does not hold that information when the requester’s request is received; the request is manifestly unreasonable; the request is formulated in too general a manner and the Department has complied with its duty under regulation 9 by giving assistance; the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; (see refusal to disclose information in paragraph 8.10); the request involves the disclosure of internal communications within the Department; or the information requested includes personal data where the requester is not the data subject. (see Personal Data in paragraph 8.12).
8.10 The Department may also refuse to disclose the information requested if the disclosure would adversely affect:
(a) International relations, defence, national security or public safety; (b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature; (c) intellectual property rights e.g. copyright or trademark; (d) the confidentiality of the proceedings of that or any other public authority, unless the information relates to information on emissions; (e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest unless the information relates to information on emissions; (f) the interests of a person who voluntarily supplied information to the Department; or (g) the protection of the environment to which the information relates, unless it relates to information on emissions.
8.11 The Department may respond to a request by neither confirming nor denying that such information exists and is held by the Department, where such confirmation or denial would adversely affect any of the above and would not be in the public interest.
8.12 There are also circumstances when the Department should not disclose personal data. This is:
(a) in a case where the information falls within paragraphs (a) to (d) of the definition of “data” in Section 1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of the public otherwise than under these Regulations would contravene -
any of the data protection principles, or
section 10 of that Act (right to prevent processing likely to cause damage or distress) and in all the circumstances of the case, the public interest in not disclosing the information outweighs the public interest in disclosing it, and
(b) in any other case, that the disclosure of the information to a member of the public otherwise than under these Regulations would contravene any of the data protection principles if the exemptions in section 33A(1) of the Data Protection Act 1998 (which relate to manual data held by public authorities) were disregarded;
(c) by virtue of any provision of Part IV of the Data Protection Act 1998 the information is exempt from section 7(1) of that Act and in all the circumstances of the case, the public interest in not disclosing the information outweighs the public interest in disclosing it. Appendix 1 Redaction or Blanking Out
Appendix 2 Outline of Process REDACTION OR BLANKING OUT
Introduction
1. Redaction is carried out in order to protect sensitive details from a document. It should be used when one or two individual words, a sentence or paragraph, a name, address or signature needs to be removed. If so much information has to be withheld from a page that the document becomes nonsensical, the entire page should be removed, forming an extract rather than a deletion. In such cases it is for those creating redacted documents for release to use their judgement, in consultation with the FOI Unit, as to what is necessary to present the information requested.
2. Under the FOIA and the EIRs requesters may ask that information be presented to them in any form. If, however, the level of resources required to do the scanning would make this unduly onerous, the FOIA allows the organisation to set aside the requester’s stated preference on the grounds of practicability (FOIA, Section 11).
3. The Act also permits that a summary of the document be transcribed. If a large percentage of the document needs to be redacted, this option of summarising its contents may be worth considering as a more viable alternative to redaction.
4. In order to conform fully with requests for information, it is essential that only exempt material be redacted. A whole sentence or paragraph should not be removed if only one or two words are non-disclosable, unless release would place the missing words in context and make their content or meaning clear. Reviewers should also consider that earlier statements in a document might suggest the content of removed material. For example, if a paragraph refers to reports from overt sources and the following paragraph refers to reports from covert sources, as well as removing the words ‘covert sources’ ‘overt sources’ would also need to be removed or the meaning of the missing words from the second paragraph can be inferred.
5. Once redactions have been identified and agreed with any other interested parties, decisions need to be recorded. Simply keeping a copy of the released copy of a document may be enough, with a note explaining the reasons for redaction. If multiple requests are made for the same information, this will also show what decisions have been made in prior requests.
6. If more detailed records of decisions are required, this can be done on a standard form recording as much of the following information as is relevant:
Precise details of the material removed (this need not describe the content, but should show which section of the document has been withheld); The reason for non-disclosure of the information. If one or more FOI exemptions apply, these should be noted, along with the particular reasons they apply in this case; and
Any comments made by reviewers and other individuals consulted.
7. Redaction must always be carried out on a copy, leaving all the information contained in the original document intact. There is a range of redaction methods, and any may be used effectively according to what best suits. This may depend on issues such as the structure and content of the document, the degree of confidentiality, cost and time available.
8. However, whichever method is employed, the end result must ensure that the redacted material cannot be seen or guessed due to incomplete redaction. This means being certain that words cannot be made out when the document is held up to light or that the ends, top or bottom of text are not visible.
9. Before redacting any information, or you are unsure of what is required, it is recommended that you read the National Archives guidance on Editing exempt information from paper and electronic documents prior to release