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FOIA at UEA - Implementation FOIA Contact Training 14 February 2005.

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Presentation on theme: "FOIA at UEA - Implementation FOIA Contact Training 14 February 2005."— Presentation transcript:

1 FOIA at UEA - Implementation FOIA Contact Training 14 February 2005

2 Overview of Session Section1 - Review of FOI Act Work & Information so far Section 2 – Responsibilities and Accountabilities Who does what? Section 3 – Handling Requests How do we do it?

3 Objectives of Day Understand basics of FOI Act Understand & agree responsibilities and accountabilities Detailed & directed guidance on handling requests Information on exemptions

4 Review – Work to date Objectives of Act Openness, accountability, credibility, culture change Obligations under the Act Responding to requests for information held Confirm or deny existence of information Provide information Publication Scheme

5 Review – Work to date Basic features of Act What is a request In writing & legible Name & contact details of applicant Clear enough to identify what is sought No need to mention FOIA Request received from anyone, anywhere Manner of receipt - via web, via mail, email, in person

6 Review – Work to date Basic features of Act How do we respond? Provide advice & guidance Distributed responsibility for handling requests Assess normality of request Referral to FOIA contact and/or IPO Acknowledgement of receipt – IPO Assess & apply exemptions & fees Provide information within 20 working days Release information in form of applicants choice

7 Responsibilities and Accountabilities Code of Practice for Responding to Requests Background & basis of Code s.45 FOIA, Lord Chancellors Code Imperial College work Approved by Information Framework Project Board Provisions of Code UEA approach to FOIA Organisation of FOIA administration Guidance on responding to requests Evolutionary approach

8 Who does what? (1) UEA Organisation UEA Information Policy Officer Faculty/Division Contact Frontline staff All UEA staff

9 Who does what? (2) Information Policy Officer Recommend Policy & Administer Policy Administration of Requests Communication with requesters Determination of Exemptions & Fees Preparation of documents / redaction Release of information within time frames Staff awareness & training Maintenance of Publication Scheme

10 Who does what? (3) Faculty / Division Contacts Ensure application of policy within Faculty/Division Assist in the administration of Requests Assist in determination of status as valid FOIA request Location and production of documents Assist in determination of Exemptions & Fees Assist in preparation of information for release Assist with maintenance of Publication Scheme

11 Who does what? (4) UEA Staff Know basic responsibilities under Act & act accordingly Redirection of email (ie. Possible requests) Responding to normal requests Referral of possible FOIA requests to FOIA Contacts

12 Workflow – a reminder Receipt of request Assessment of request Determination of work/location/fees Communication with requester Locate/produce documents Assessment of information (eg. Exemptions) Preparation of information/summary Release of information

13 Exercise Winding our way through workflow Examination of workflow of request Assignment of responsibility for actions IPO, Contact, Staff Discussion of workflow – does it work for you?

14 Workflow Does the request mention the Freedom of Information Act? Forward the request immediately to FOIA Contact (Stage 2) (copy in UEA Information Policy Officer) Do you (or your team) have the information requested? Do you wish to answer the request? Are you certain there are no other problems with releasing the information? e.g. personal data, confidential information, commercially sensitive? Answer the request as part of normal UEA business Yes No Requests for Information : Stage 1 - Dealing with Incoming Requests UEA Information Policy Officer Library 01603 593523

15 Workflow (2) Requests for Information : Stage 2 – Assisting applicant & assessing request Does the request fulfil the requirements of the Act? Assist the Applicant Yes No Would the part or all of the request best be handled by another Public Authority? Estimate fees and inform applicant, if necessary. Proceed with the request? Forward part or all of request to other PA Yes No UEA Information Policy Officer to work with relevant Division(s) to locate and retrieve the information Check for exemptions (Stage 3) Yes No Contact Applicant (Stage 5)

16 Workflow (3) Requests for Information : Stage 3 – Checking for exemptions Does an absolute exemption apply? Contact Applicant with appropriate response (Stage 5) Consider duty to confirm or deny No duty to disclose informationDisclose No Yes Does a qualified exemption apply? Consider Exemption (Stage 4) NoYes Absolute Exemptions Include: Already Published Personal Data National Security Court Records Received in confidence Does the information match the request? No Yes IPO to re-contact department(s) for all further information.

17 Workflow (4) Requests for Information : Stage 4 – Applying Qualified Exemptions Would releasing the information: a)Threaten health & safety of any individual b)Commercially disadvantage UEA c)Prejudice prevention of crime d)Reveal information covered by DPA e)Possibly be covered by another exemption Is releasing the information in the public interest? Contact Applicant with appropriate response (Stage 5) Where appropriate consult with department(s) or third parties to assess if an exemption applies No Yes No Yes Withhold information

18 Workflow (5) Requests for Information : Stage 5 – Responding to the Request Is any information being released? Contact applicant. Inform them of Complaints Procedure No Check the required fee has been paid Ensure that letter to applicant covers: Any partial disclosure is explained If part of request has been passed to another Public Authority Any exemptions are explained Yes Assess if the required method of providing the information can be achieved (e-mail, hard copy, in person etc)

19 Tracking requests Tracking system required for audit, management Low tech solution initially (ie. Excel spreadsheet) Single entry point initially Essential components Information about requester (name, contact) Information about request (when, who, where…) Logging of actions/correspondence Dates of actions Bring forward functionality

20 Advice and guidance – Initial Obligation – make reasonable efforts to person who has made, or proposes to make request Underlying philosophy to maximize information available to public Early, frequent communication important but no requirement to follow up if no response Advice & guidance can be given at any point

21 Advice and guidance - Initial When should initial advice be given? Clear request is intended Invalid request due to insufficient or unclear information Refusal due to cost Person with difficulties in making request Need to advise applicant of rights

22 Advice and guidance – Initial What is reasonable? Usual customer service standards Examples Advising of progress & of rights Assisting in focussing of requests Advising of existence of information elsewhere Transcription of voice call + confirmation Provide outline of information held Access to catalogues/indexes

23 Advice and guidance - Ongoing Extension (nb. Clock started) Can inform of more time needed IF public interest test needed Must give estimate of extra time required & must be able to justify to ICO Other legislation – advise if request under other legislation Refusal - Exceed cost limit, exemption Further clarification/modification Fee matters Disclosure issues Information held elsewhere

24 Advice and guidance – 3 RD Party Duty to inform of UEA obligations in advance Amendment to contracting practice Option to inform of release of 3 rd party data UEA approach Communication to contractors Contractual terms amended in ITTs Notification of release of information

25 Exercise Advice and guidance – when, who from, and how Sheet with examples Discussion & dialogue

26 Response Time Base time – 20 working days Working day = non-statutory holiday day Clock starts: Day AFTER receipt of the request Day authority receives information necessary to identify & locate information (but dont delay) Date of receipt of transfer from another authority Receipt of request is when: Delivered, or received in inbox (email) Where re-direction of email exists, date is delivery to alternative address

27 Response Time Extensions/suspension of clock Fee requests (clock restarts where stopped when fee received) NOT because information voluminous where public interest needed to be applied school holidays (but not HE or FE)

28 Response Time Good practice Separate email address for FOI requests Use of automated out of office notices with alternative addresses Alternative addressee aware of FOIA! Acknowledgement of requests And if we dont respond in time? Breach of s.10; if complaint by requester... ICO decision notice; Enforcement notice

29 Fees Fee is discretionary Fee can be imposed if cost is over appropriate limit to locate, retrieve, extract information Appropriate limit = £450 / 18 hours @ £25/hour Limit not for exemption assessment or communicating with applicant No obligation to respond if appropriate limit exceeded Disbursements charged back always UEA policy is no response if request over appropriate limit ; not to charge disbursements if very low

30 Exemptions Presumption of disclosure but exemptions to disclosure permitted or required under Act 23 separate exemptions 2 types of exemption Absolute – 8 exemptions Qualified – 15 exemptions

31 Absolute Exemptions No right to know, exempt information not subject to public interest test Absolute Exemptions of interest S. 21 - Information already accessible S. 40 - Personal data S. 41 - Confidential information

32 S. 21 – Information already accessible Overview - information must be reasonably accessible to applicant Factors affecting accessibility Information itself – format, organisation, holdings Applicant – legal status, skills, disadvantage

33 S. 21 - Information already accessible Examples Information within Publication Scheme Statutory duty to release (eg. Annual reports) Published research Most of this material will be released without reference to Act

34 S. 40 – Personal Data Overview – s.40 exempts information: That is personal data of the applicant, (Part 1) or, Personal information of others where release would contravene data protection principles (Part 2) or, Personal information that no-one can see Applies to personal data within meaning of DPA – identity of applicant critical DPA supercedes FOIA; referral section Duty to confirm or deny covered by s.40

35 S. 40 – Personal Data 3 rd Party data Exempted if release contravenes data protection principles 8 point statutory code, Part 1, Schedule 1, DPA First principle most relevant – information processed fairly & lawfully subject to conditions Factors in assessing contravention of fairness principles How information obtained Expectations of data subject Effect of disclosure on data subject Content of information Public interest in disclosure

36 S. 40 – Personal Data 3 rd Party data – disclosure allowed where: Data subject agrees Disclosure contractually required Compliance with legal obligation of data subject It protects vital interest of data subject Administration of justice, functions of Crown, public interest functions

37 S. 41 – Information in Confidence Exempt from disclosure if: Release would result in breach of confidence action in common law by anyone Information is obtained from any other person Applies to information from another public authority Covers duty to confirm or deny

38 S. 41 – Information in Confidence Confidentiality due to agreement or nature of information or method of acquisition Actionable includes success of action Need for legal interpretation of law of breach of confidence Need to consult 3 rd parties (LC Code)

39 S. 41 – Information in Confidence Is it confidential? Factors to consider are: Must be worthy of protection and not in public domain Existence of express agreement by public authority (BUT agreement must be necessary to exercise function, must be confidential, justifiable to ICO) Is information is clearly, by its nature, confidential (eg. Medical records)? Is protection of similar information longstanding, consistent & well-known practice? Public interest test

40 S. 41 – Information in Confidence Public Interest test for in confidence Breach not actionable if public interest in favour of disclosure Public interest must be specific; no general interest in breach of confidence Authority & requester interests irrelevant Test is also What would a court say?

41 S. 41 – Information in Confidence Public interest factors favouring disclosure Revelation of misconduct/mismanagement of funds Revelation of bad value contract Correction of untrue statements/acts by public authority No harm thereby – old information Public interest factors against disclosure Risk to public or personal safety Damage to public administration Contractual or professional obligations Negative effect on supply of important information

42 Exercise Absolute Exemptions – what exemption, issues to consider Sheet with possible requests Discussion & dialogue

43 Qualified Exemptions Public interest test applies Must assess if public interest better served by disclosure than by non-disclosure Presumption that public interest served by disclosure Must be public interest, not private interest What is the public interest? - Factors to consider are Furthering understanding & participation of public Promoting accountability & transparency in/for decisions and for spending Furthering understanding of decision by public Revealing health & safety information Contribution to scientific advancement Assist in access to justice &/or fundamental rights

44 Qualified Exemptions Examples Section 22 – Future publication Section 31 – Law enforcement Section 37 – Health and Safety Section 39 – Environmental Information Section 43 – Commercial interests

45 S. 22 – Future Publication Information exempt if: Information held with a view to future publication by anyone in future Intent to publish exists at time of request Reasonable to withhold until publication Intent of FOIA is not to force premature publication Cannot use future publication unreasonably

46 S. 22 – Future Publication Publication includes: speech, writing, programme or other communication press releases, announcements, bulletins, CDs, videos, books, journals, newspapers, consultation papers, reports, research, statistics, TV or radio broadcasts

47 S. 22 – Future Publication View to publication must: have a firm intention to publish be in existence at time of request & continuing Publication can be by anyone Rejected or non-published information open to disclosure Advancement of publication date is possible even if reasonable to withhold til publication date

48 S. 22 – Future Publication Public interest re publication is about timing Other factors re public interest: Nature of publication timetable – close/distant Prejudicial effects of release/delay Fairness of release to applicant vis a vis others Pre-publication & publication procedures Pre-existing commitments re publishing Good practice Have record of intention to publish (e.g. Publication Scheme, contract) If public interest in favour of disclosure, publish?

49 S. 31 – Law Enforcement Information is exempt if release would prejudice: Prevention of detection of crime Apprehension or prosecution of offenders Administration of justice Assessment/collection of tax or duty Civil proceedings by authority arising from Crown investigation Only applies to information not exempted under s.30 (ie. authority has prosecution responsibility)

50 S. 31 – Law Enforcement Prevention or detection of crime information, or apprehension or prosecution of offenders - examples Intelligence about anticipated criminal activities Planned police operations, strategies & tactics Information whose release would facilitate the commission of an offence Information whose release would prejudice fair trial of any person

51 S. 31 – Law Enforcement Public interest test factors re prevention or detection of crime information, or apprehension or prosecution of offenders: Degree & likelihood of prejudice Effect of crime on individuals, society and/or economy Incremental effect of other disclosures

52 S. 37 – Health & Safety Exempt if likely to: Endanger physical or mental health of any individual Endanger the safety of any individual Key concept is risk of harm Wide interpretation of health & safety by courts Individual need not be identifiable; can be part of distinct group of persons

53 S. 37 – Health & Safety Physical or mental health includes Impairment, injury, illness, disease Recurrence, aggravation, acceleration, deterioration of pre-existing condition Emotional & psychological well-being; not necessary to be pathological Safety includes: Protection from harm Freedom from danger

54 S. 37 – Health & Safety Factors to consider are: Likelihood of endangerment Susceptibility of individual to harm Examples of exempted information - disclosure would : Allow anyone, group, to be identified/located & then targeted for attack Lead to anyone being threatened or harrassed Cause distress (eg. Graphic information about deceased persons)

55 S. 37 – Health & Safety Public Interest considerations Never in public interest to endanger health and safety Awareness of risk is in public interest Size & likelihood of risk Nature and seriousness of outcome Possibility that disclosure help health and safety of others Danger could be managed by other means

56 S.39 – Environmental Information Information covered by Environmental Information Regulations (2004) is exempt Referral section – requests must be handled under EIR regime – no choice DEFRA guidance forthcoming Request & information in any format

57 S. 39 – Environmental Information Environmental information includes: State of elements of the environment Factors affecting or likely to affect environment Measures affecting or likely to affect environment, Reports on legislation Economic analyses within measures State of human health including food chain Terms defined (eg. Air, land) broadly

58 S. 39 – Environmental Information Specific issues covered by EIR: GM crop trials, Pesticide testing, Diseased cattle, Land use planning Includes information held by, or for, authority Information can be in any format Information not limited by geography or time Further guidance forthcoming

59 S. 43 – Commercial Interests Information exempt if it is: Trade secret If disclosed, would, or would be likely to prejudice commercial interests of any person (including authority holding information) Trade secret is Used in trade or business If disclosed, would cause harm Information over which the owner limits dissemination and/or publication

60 S. 43 – Commercial Interests Commercial interest is: Business, trade or profession Both as purchaser & supplier Ability to successfully participate in commercial activity Not a financial interest (ie. financial position) Any person is Company, sole trader, partnership or business (i.e. 3 RD party) Authority itself

61 S. 43 – Commercial Interests Prejudice to commercial interests is: Damage to business reputation or confidence in it Detrimental impact on commercial revenue Weakening of competitive position Existing at the time of request But NOT solely assertion of prejudice

62 S. 43 – Commercial Interests 3 rd Party information factors: Terms upon which information given/received Expectations of 3 rd party Relationship between 3 rd party and authority Prejudice must be demonstrable Objection of 3 rd party to release

63 S. 43 – Commercial Interests Examples of exempt information: Research & plans for new product Manufacturing cost information Sales forecasts Plans – Marketing, Strategic business Relating to preparation of competitive bid Viability of company Information supporting application for license

64 S. 43 – Commercial Interests Public interest test factors: Extent of prejudice / value of trade secret Existing public interest in disclosure of commercial information Effect on future provision of information to authority & therefore ability to fulfil role Effect on bargaining position during contractual negotiations Effect on ability of individual to conduct commercial transactions with authority Timing of commercial sensitivity

65 Exercise Qualified Exemptions – what exemption, issues to consider Sheet with possible requests Discussion & dialogue

66 Disclosure of Information Format/manner Choice of applicant Reasonableness Summary or document? Information to be released, not documents Excessive documents not in spirit of FOIA Refusal of disclosure Whole or part? Redaction – Print / electronic format Obligations / Protocol Inform applicant of reason for non-disclosure Availability of appeal/complaint mechanism

67 Complaints Mandatory under Act Internal review at first instance Proposed 2 stage internal UEA process Applicant has right to complaint to Information Commissioner Office (s. 50) ICO has power to request UEA information and issue notices to UEA If UEA doesnt comply with notice, high court proceedings for contempt possible

68 FOIA at UEA - Implementation FOIA Contact Training 15 December 2004

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