Freedom of information and animals: A basic introduction

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Freedom of information and animalsA basic
introduction

• Alan Bates
• Director, ALAW

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FOI How can it help you

• Research Government bodies hold a huge amount of
  valuable data
• Campaigning Sometimes even non-provision of
  information can be used to your advantage
• Lobbying Let decision-makers know that they are
  being watched
• Litigation Get disclosure at an early stage
  even before deciding to go to court

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Key legislation

• Freedom of Information Act 2000 (FOIA) came
  into force 1st January 2005
• Environmental Information Regulations 2004
  (EIR)
• Local Government Act 1972 (as amended by the
  Local Government (Access to Information) Act 1985
• Data Protection Act 1998

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FOIA Key aspects

• Provides a general right of access to information
  held by public authorities
• In principle, the identity of the requestor is
  irrelevant to whether the information should be
  disclosed
• Subject to numerous exemptions some absolute,
  others qualified
• Enforced by the Information Commissioner and his
  Office (ICO)

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FOIA Publication schemes

• Publication schemes to be approved by the ICO
• Model publication schemes
• Specify classes of info that the authority
  publishes or intends to publish
• Specify manner of publication and whether
  available free of charge or on payment
• FOIA, s19 In adopting or reviewing a
  publication scheme, a public authority shall have
  regard to the public interest in allowing public
  access to information held by the authority and
  in the publication of reasons for decisions made
  by the public authority

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FOIA what information can be accessed?

• FOIA provides a right of access to information,
  not documents
• Includes information obtained by the public
  authority from third parties
• Format in which information is held is irrelevant
• The fact that the information is held within a
  document that is partly exempt from disclosure
  does not preclude the disclosure of that
  information

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FOIA To whom can a request be made?

• FOIA grants access to information held by or on
  behalf of a public authority
• Public authorities are listed in Schedule 1 to
  the Act
• Includes central and local government, executive
  agencies, NHS Trusts, universities, the police,
  NICE
• For an up-to-date list, see www.foi.gov.uk/coverag
  e.htm

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FOIA How should requests be made?

• In writing letter, fax or email
• Include details of the name and address of the
  applicant
• Describe in as much detail as possible the
  information required
• The request need not be identified as having been
  made under FOIA
• Nor is it necessary to identify the purpose for
  which the information is being sought though
  can sometimes be useful to include this

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FOIA The general principle

• The general principle of the FOIA is that any
• person making a request for information to
• a public authority is entitled (subject to a
• number of exceptions and exemptions)
• to be informed in writing by the public authority
  whether or not it holds information of the
  description specified in the request (the duty
  to confirm or deny) and
• if it does hold the information, to have that
  information communicated to him

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Different regimes for different types of info

• Environmental information dealt with under EIR,
  not FOIA
• Applications from data subjects for access to
  their personal data fall exclusively under the
  Data Protection Act
• No duty to disclose information which is already
  accessible under the public authoritys
  publication scheme

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Tips for drafting a successful FOIA request

• Check the publication scheme first
• Mention FOIA (or EIR/DPA, as appropriate)
• Ask for information, not documents
• Ask for the information you want as specifically
  as possible, providing adequate details so as to
  enable the information you are seeking to be
  easily located formulated in too general a
  manner exception
• Consider whether to reveal the purpose of your
  request manifestly unreasonable exception
• State a timescale if you need the information
  urgently, and consider explaining the reason for
  the urgency
• Consider whether to split the information you are
  seeking into separate requests

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How public authorities deal with FOIA requests

• Public authorities will usually acknowledge
  request by return
• Substantive response within 20 working days
  extendable
• No fees if cost of providing information is under
  600 (central govt) or 450 (local govt)
• Statutory duty to provide advice and assistance
  to applicants and to those considering making a
  request for information (FOIA s 16(2))
• No duty under FOIA to consult third parties

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FOIA Absolute exemptions

• Information accessible to the applicant by other
  means
• Security matters (fairly narrow)
• Court records
• Parliamentary privilege
• Personal data protected from disclosure under the
  DPA
• Confidential information
• Other legal prohibitions

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Absolute exemption Protected personal data

• Scope of personal data remains unclear Durant
  v Financial Services Authority 2003 EWCA Civ
  1746 under appeal to House of Lords

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Absolute exemption Confidential information

• Exemption can only apply to information with
  public authority has obtained from a third party
  (not including, in the case of central govt,
  another govt dept)
• Information must have the necessary quality of
  confidence about it
• Information must have been imparted in
  circumstances importing an obligation of
  confidence
• Disclosure must be detrimental to the party
  wishing to keep the information confidential
• NB The Section 45 Code of Practice limits
  circumstances in which public authorities should
  undertake obligations of confidence

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Absolute exemption Other legal prohibitions

• Disclosures prohibited by statute
• Disclosures which would be incompatible with EU
  law
• Disclosures which would be a contempt of court
• NB Need to check, in the case of each public
  authority, what statutory duties it may be under
  not to disclose information then formulate and
  direct info requests with that in mind

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FOIA Qualified exemptions no prejudice

• Information intended for future publication
• Information obtained from another State
• Investigations and proceedings conducted by
  public authorities
• Formulation of government policy
• Communications with Her Majesty
• Environmental information
• Personal information
• Legal professional privilege
• Trade secrets

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FOIA Qualified exemptions Prejudice

• National security
• Defence
• International relations
• Relations within the UK
• The economy
• Law enforcement
• Audit functions
• The effective conduct of public affairs
• Health and safety
• Commercial interests

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Differences between FOIA and the DPA

• DPA provides for rights against any data
  controller FOIA only applies to public
  authorities/designated bodies
• DPA rights are only provided to data subjects,
  not the public at large
• DPA in general concerned with information
  processed on computer or in structured filing
  systems but note greater reach in the case of
  public authorities
• DPA based on the 8 data protection principles,
  the right of access to ones own personal data,
  and the right to prevent processing likely to
  cause damage or distress disclosure is strictly
  controlled

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Environmental Information Regulations 2004

• Unlike FOIA, EIR derived from EU law
• There are significant differences between EIR and
  FOIA regimes
• Bodies subject to EIR appear to be more numerous
  than those subject to FOIA
• Exceptions to disclosure similar, but not
  identical, to FOIA
• Enforcement by the Information Commissioner

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EIR Environmental information definition

• Any information in written, visual, aural,
  electronic or other material form on
• the state of the elements of the environment
• factors likely to affect those elements
• Measures (inc policies) likely to affect/protect
  those elements
• Reports on implementation of envtl legislation
• Cost-benefit and other econ analyses of measures
  in (c)
• The state of human health and safety inasmuch as
  they may be affected by the state of the elements
  referred to in (a).

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Bodies subject to obligations under the EIR

• Government depts
• Certain other public auths defined in FOIA s
  3(1), with certain exceptions
• Any other bodies which, or other persons who,
  carry out functions of public administration and
• Any other bodies or other persons under the
  control of a person falling within (a), (b) or
  (c) above, and who (i) have public
  responsibilities relating to the environment
  (ii) exercise functions of a public nature
  relating to the environment or (iii) provide
  public services relating to the environment.

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Duties under the EIR

• General duty to disseminate information
  (including treaty texts, policies, progress
  reports, monitoring data, authorisations,
  environmental impact studies and risk
  assessments)
• Duty to make envtl info available on request
  applies notwithstanding any enactment or rule of
  law which would otherwise prevent disclosure
  (this is an important difference from the FOIA
  regime)

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EIR disclosure exceptions

• There are a range of non-prejudice based
  qualified exemptions similar to FOIA
• Request is manifestly unreasonable or formulated
  in too general a manner
• Relates to material which is still in the course
  of completion, to unfinished documents or
  incomplete data
• Would involve disclosure of internal
  communications or communications between govt
  depts
• All the above are subject to public interest
  balancing test

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Thank You

• For more information
• www.monckton.com