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Freedom Of Information Act 2000

EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Freedom of Information Act 2000 which received Royal Assent on 30 November 2000. They have been prepared by the Home Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

3. In December 1997, the Government issued a White Paper entitled "Your Right to Know" (Cm 3818) on its proposals for a Freedom of Information Act. It sought views by 28 February 1998. More than 550 responses to the White Paper were submitted. Copies were placed in the Library of both Houses of Parliament and published on the Internet.

5. The Act creates new rights of access to information. It is intended to supersede the Code of Practice on Access to Government Information. The Act amends the Data Protection Act 1998 and the Public Records Act 1958.

8. The main purpose of the Act is to implement the principles set out in the White Paper in so far as it is appropriate to do so by primary legislation. Some matters will be dealt with in secondary legislation, codes of practice or by administrative action.

9. The Act:

10. The Act is in eight parts.

11. This Part:

12. This sets out the circumstances in which information is "exempt information" for the purposes of the Act. Some of the exemptions apply to a class of information; others rely on the application of a prejudice test or other consequences of disclosure.

13. This requires the Secretary of State to issue a code of practice providing guidance to public authorities on various administrative matters, including the practices which authorities should follow when dealing with requests for information. It also requires the Lord Chancellor to issue a code of practice providing guidance to public authorities on the keeping, management and destruction of their records.

14. Part III places a duty on the Commissioner to promote good practice and public authorities' compliance with the Act, their publication schemes and codes of practice. The Commissioner is also obliged, where he considers it expedient, to disseminate information to the public about the Act. The Commissioner is permitted to charge fees with the consent of the Secretary of State for such services. Part III also enables the Commissioner to make practice recommendations specifying what a public authority should do to comply with the codes of practice and requires the Commissioner to lay annual reports before Parliament.

15. This enables an applicant who is not satisfied with the response by a public authority to a request for information to apply to the Commissioner for a decision on whether the authority has acted in accordance with the provisions of the Act. Subject to certain conditions, for example, the exhaustion of other means of complaint, the Commissioner is under a duty to reach a decision.

17. This states the circumstances in which an applicant or a public authority may appeal to the Tribunal when a decision notice, information notice, or enforcement notice has been served. It also states the circumstances in which a party to an appeal to the Tribunal can appeal to the courts on a point of law. It lays down the circumstances in which the Tribunal can hear appeals against the issue of a certificate in national security cases. It also provides for appeal procedures through amendments to the Data Protection Act 1998 as detailed in Schedule 4.

18. This effectively replaces the largely discretionary provision for access to public records under the Public Records Act 1958 with a new statutory regime; provides for the access to be enhanced in respect of information contained in records more than thirty years old by disapplying a number of the exemptions in Part II; regulates the relationship between the Lord Chancellor (or appropriate Minister in Northern Ireland) and public authorities in relation to certain information contained in historical records, and makes further provision in relation to decisions relating to certain transferred public records.

19. With some exceptions and modifications this Part extends the Data Protection Act 1998 provisions about subject access and data accuracy to all personal information held by public authorities. Schedule 6 makes specific provision to extend the 1998 Act to include relevant personal information processed by or on behalf of both Houses of Parliament and makes other minor amendments to that Act.

provides for a power to make provision relating to environmental information;

provides for a power to repeal or amend existing statutory bars to disclosure;

provides for disclosure of information between the Commissioner and specified ombudsmen.

creates an offence of altering etc. records with intent to frustrate a right of access;

saves existing powers of public authorities to disclose information;

makes provision in respect of defamation;

prevents the extension of the Act to the Scottish Parliament and certain devolved bodies;

deals with the application of the Act to government departments and to Parliament and the Northern Ireland Assembly;

defines the way in which orders or regulations can be made under the Act;

defines various terms used in the Act; and

gives effect to repeals of existing legislation in Schedule 8.

Part I: Access to information held by public authorities

Right to information

Section 1: Right to information

22. Section 1 confers a general right of access to information held by public authorities. An applicant has a right to be told whether the information requested is held by that authority (the duty to confirm or deny whether it holds information) and, if it is held, to have it communicated to him. Provisions limiting an authority's duty under section 1 appear in sections 1(3), 2, 9, 12 and 14 and in Part II. The grounds in sections 9, 12 and 14 relate to the request itself and the circumstances in which an authority is not obliged to comply with it. The provisions of Part II relate to the nature of the information requested.

25. Subsection (5) provides that where a public authority has communicated information to an applicant, the authority shall be taken to have complied also with its duty to inform the applicant whether or not it holds that information.

26. This section deals with the effect of the exemptions in Part II. The effect of the provisions in Part II differs depending on whether they confer absolute exemption or not. Subsection (3) draws a distinction between provisions in Part II which confer an 'absolute exemption', where the need to balance the public interest in disclosure against the public interest in maintaining the exemption does not arise, and other exemptions whose application must be balanced against the public interest in disclosure.

28. Subsection (2) provides that public authorities are not under a duty to disclose information if either the information is exempt by virtue of a provision conferring an absolute exemption or, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

29. Subsection (1) defines the term "public authority" for the purposes of the Act.

a) on the face of the Act (in Schedule 1), using generic descriptions where appropriate, which specifies the principal authorities in national and local government, together with the principal public authorities relating to the armed forces, national health service, education, the police and other public bodies and offices;

b) by order under section 4(1) adding to Schedule 1 any body or the holder of any office that satisfies certain specified conditions;

31. Subsection (2) sets out the circumstances in which information is "held" by a public authority for the purposes of the Act. This does not extend to holding on behalf of another person or authority. It would not, for example, extend to a Minister's constituency papers just because they were kept by the Minister in his Department. It includes information held elsewhere on behalf of an authority, for example in a private repository.

Section 4: Amendment of Schedule 1

32. Subsection (1) provides a power for the Secretary of State to make an order, which will be subject to negative procedure, to add to Schedule 1 a reference to any body or the holder of any office which is not listed and which fulfils certain conditions.

34. Subsection (4) provides for a body or office to cease to be a public authority by virtue of its inclusion in Part VI or VII of Schedule 1 if it ceases to satisfy the conditions in subsections (2) and (3).

Section 5: Further power to designate public authorities

37. Subsection (1) contains a power for the Secretary of State to make an order, subject to affirmative procedure, to include within the scope of the Act any person or office which is not described in Schedule 1 nor capable of being added to that Schedule by an order made under section 4(1) but which:

38. Subsection (3) requires the Secretary of State to consult any person in respect of whom he proposes to make an order under subsection (1).

40. Subsection (2) defines a company wholly owned by the Crown as a company having no members except:

and defines a company wholly owned by a public authority other than a government department as having no members except:

41. Subsection (3) defines company as including any body corporate.

42. Subsection (1) provides that where a public authority is listed in Schedule 1 only in relation to specified information nothing in Parts I to V of the Act applies to any other information held by that authority.

43. Subsection (2) provides that an order under section 4(1) may specify that it is only to have effect with respect to particular information.

46. Subsection (6) requires an order made under section 5(1)(b) to specify the services provided under contract to which the designation is to apply. Nothing in Parts I to V of the Act applies to information held by a contractor designated in such an order which does not relate to the provision of the specified services.

50. This section makes provision for authorities to notify applicants that a fee is payable and exempts authorities from being obliged to disclose information until the fee has been paid. The applicant will have three months from the date of notification to pay the fee before his request lapses. This section also provides for the Secretary of State to make regulations governing the fees that authorities may charge. Such regulations will be able to prohibit a fee with regard to certain types of request, to set an upper limit on amounts that may be charged and to prescribe the manner in which any fees are to be calculated. The regulations will not apply where provision is made under another Act as to the fee that may be charged for the provision of particular information.

Section 10: Time for compliance with request

52. This states that an authority must comply with its duty under section 1 promptly and in any event within 20 working days (or other period, not later than 60 working days, set under regulations) from receipt of a request. If a fees notice is issued, time stops running from the issue of the notice until the fee is received. Working days do not include any Saturday or Sunday or Christmas Day, Good Friday or bank holidays under the Banking and Financial Dealings Act 1971 in any part of the UK. Where an authority is not able to reach a decision as to the balance of the public interest in disclosure within 20 working days, it must reach a decision within a reasonable period. In these circumstances, the authority is still required to issue a notice that an exemption applies under the provisions of section 17(1) within the 20 working day limit.

53. This section permits an applicant to express a preference as to the means of communication of information under section 1.