APPENDICES
¶Duties of the Information Commissioner in relation to the Freedom of Information Act 2000 4.90 The Commissioner has a number of powers and duties under FOIA. Whilst FOIA has not been
the subject of extensive evidence before the Inquiry, it is useful to summarise the provisions of FOIA to the extent that they relate to the Commissioner in order to understand the entire framework of the regulatory position.
¶4.91 The purpose of the Act is stated at the outset to be, "to make provision for the disclosure of information held by public authorities or by persons providing services for them".424
¶4.92 The FOIA creates a general right of access, on request, to information held by public authorities.
On receipt of a freedom of information claim a public authority has two corresponding duties. Firstly, a duty to inform a member of the public whether or not it holds the information requested and secondly, if it does hold that information, to communicate that fact to the person making that request.425 A critical distinction between the DPA and the FOI is that whilst under the DPA a request for data is limited to data held about yourself as a data subject, there is no such constraint in relation to information held by the public authority that is sought under the FOIA.
¶4.93 The basic duty is supplemented by an additional duty to aid individuals in making requests
and ensuring that they frame their FOI requests appropriately.426 A public authority is to be taken to have complied with this duty in any particular case if it has conformed with the provisions of this Code in relation to the provision of advice and assistance in that case. The duty to assist and advise is enforceable by the Information Commissioner. If a public authority fails in its statutory duty, the Commissioner may issue a decision notice under s50, or an enforcement notice under s52.
¶4.94 At the heart of the FOIA is the definition of public authority – namely those bodies against
whom the right to information can be asserted. Section 3 of the Act defines a public authority as any body, person or office-holder listed in Schedule 1, designated by order under s5 and publicly owned companies as defined in s6. Schedule 1 sets out a broad range of public bodies subject to the Act, including central Government departments, local government, strategic health authorities and primary care trusts, governing bodies of maintained schools, police authorities and a wide range of committees and commissions exercising public functions.
¶4.95 The Act contains a number of provisions which provide for exemptions from disclosure in
relation to certain types of information. There are two forms of exemption: an absolute exemption which is an absolute bar to disclosure, and qualified exemption which is subject to a public interest test, balancing the public interest in maintaining the exemption against the public interest in disclosure.
¶4.96 The absolute exemptions include information that: i) is accessible by other means, ii) relates
to or deals with security matters iii) is contained in court records, iv) the disclosure of which would infringe parliamentary privilege, v) information held by the House of Commons or the House of Lords, where disclosure would prejudice the effective conduct of public affairs, vi) information which (a) the applicant could obtain under the Data Protection Act 1998; or (b) where release would breach the data protection principles, vii) information provided in confidence, viii) where disclosure of the information is prohibited by an enactment; incompatible with an EU obligation; or would commit a contempt of court.427
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¶4.97 The Act also contains qualified exemptions which introduces a two stage test. First, the
public authority must decide whether or not the information is covered by an exemption and second, the authority must disclose the information unless the application of a public interest test is such that the public interest outweighs disclosure.
¶4.98 A number of qualified exemptions relate to particular classes of documents, namely
information which that: i) is intended for future publication ii) required for the purpose of safeguarding national security, iii) is held for purposes of investigations and proceedings conducted by public authorities, v) relates to the formation of government policy, ministerial communications, advice from government legal officers, and the operation of any ministerial private office, vi) relates to communications with members of the Royal family, and conferring honours, vii) prevents overlap between FOIA and regulations requiring disclosure of environmental information, viii) is covered by professional legal privilege, and ix) is a trade secret.428
¶4.99 A number of qualified exemptions relate to particular harm that may be occasioned by
compliance with the duty to disclosure. These include where disclosure would prejudice: i) defence or the capability, effectiveness or security of any relevant forces, ii) international relations, iii) relations between any administration in the United Kingdom and any other such administration, iv) the economic interests of the UK, v) law enforcement (e.g., prevention of crime or administration of justice), vi) the auditing functions of any public authorities, or vii) would in the reasonable opinion of a qualified person prejudice the effective conduct of public affairs, prejudice collective responsibility, or inhibit the free and frank provision of advice or exchange of views, viii) would endanger physical or mental health, or endanger the safety of the individual, (ix) would endanger commercial interests.429
circumstances (set out in Part II): where an absolute exemption is conferred on the public authority, or where in all the circumstances of the case the public interest in maintaining an exemption outweighs the public interest in disclosing the information. In the first instance, it is for the public authority to determine whether there are grounds for an exemption to apply, and if necessary, conduct a balancing exercising with the public interest in disclosure. If the person seeking the information is dissatisfied with the response there is a route of complaint to the Information Commissioner who must determine whether there are proper grounds for the information to be withheld and must issue a decision notice setting out the decision reached by the ICO.
¶4.101 It is important to note that for four public authorities listed under Schedule 1, the Act has
limited effect. For example, Part VI of Sch 1 provides that the BBC, the Channel Four Television Corporation, the Gaelic media service and the Sianel Pedwar Cymru (the Welsh television channel known as S4C) are subject to the Act only in respect of information which is "held for the purposes other than those of journalism, art or literature". The purpose of this exemption is to protect journalistic activities from possible compromise. This section of the Act was recently analysed by the Supreme Court, which held that information held predominantly for the purposes of journalism does not fall within the scope of the Act, even if the information is held for other purposes as well.430
¶4.102 The Office of the Information Commissioner oversees the operation of the Act. Part IV of
¶FOIA gives the Information Commissioner a number of enforcement powers.
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