Transparency in Public Administration –

FOI and EIR

Shauna DunlopNI Group Manager

Information Commissioner’s Office

Outline

• Information Rights

• Time of Transition

• Transparency

• Corporate Governance

• Duties & Responsibilities

Freedom of Information Act 2000

• The Freedom of Information Act 2000 (FOI) provides public access to information held by public authorities (PA) across the UK

It does this in two ways: • public authorities are obliged to publish certain information

about their activities • and members of the public are entitled to request

information from public authorities

Why – FOI?

• People have a right to know about the activities of public authorities, unless there is a good reason for them not to

• Access to official information can also improve public confidence and trust if government and public sector bodies are seen as being open

FOI in Practice• Everybody has a right to access official information

• Recorded information includes printed documents, computer files, letters, emails, photographs, and sound or video recordings.

• Purpose and applicant blind

• Available to anyone, anywhere (inc. outside UK)

• Consider any information you release under the Act as if it were being released to the world at large

FOI in Practice - Requests

The public authority that receives the request is responsible for responding – the existing Council/Department

A requestor does not need to mention the FOIA

Consider the two separate duties when responding to these requests: • to tell the applicant whether you hold any information falling within the scope of their request; and • to provide that information

• Complex/S40 enquiries – review 20 working days

FOI in Practice – Requests (2)

To be valid it must be in writing (inc. Twitter and Facebook)

Include the requester’s real name

Include an address for correspondence

Describe the information requested

Clarify the request

Cost considerations (£600/£450)

FOI in Practice – Responding to a RequestFOI favours disclosure unless there is a good reason not to disclose. This is

sometimes described as a presumption or assumption in favour of disclosure

Some reasons not to disclose may include:

• Vexatious request• Personal Data• Cost• Repeated requests• Exemptions

FOI in Practice - Exemptions

Most exemptions are not absolute but require you to apply a public interest test

You do not have to apply an exemption. However you must consider other implications

Exemptions:• S21 – Information already reasonably accessible• S22 – Information intended for future publication• S35 – Government Policy• S40 – Personal information• S43 – Commercial interests

FOI – Regulatory Action

The ICO has a range of powers to take action in relation toFOI.

• On receipt of a complaint the ICO may issue a Decision Notice• Failure to comply with a Decision Notice may be contempt of court, punishable by a fine • Section 77 states that it is a criminal offence to alter, block, destroy or conceal information. Depending on the nature of the incident, an authority or its individual members of staff could be charged with this offence. The penalty is a fine• Monitor performance

Environmental Information Regulations 2004

The Environmental Information Regulations (EIR) 2004 provide public access to environmental information held by publicAuthorities (PA)

The Regulations do this in two ways: • public authorities must make environmental information available

proactively • members of the public are entitled to request environmental information from public authorities

Review with regard to new powers for Super Councils

Background to EIR

The Regulations are derived from European law. Each memberState has it’s own version

They implement the European Council Directive 2003/4/CE onpublic access to environmental information (the EC Directive) in the UK

The principle behind the law is that giving the public access to environmental information will encourage greater awareness

ofissues that affect the environment

What is environmental information

Definition in EIR

3 key terms:• Elements of the environment• Factors affecting or likely to affect the elements• Measures or activities affecting or likely to affect elements or

factors

Information does not have to be “on” the environment

• Financial information could be classed as environmental information if, for example, it related to the costs of developing

wind farms or building a new tourist attraction

EIR in Practice

Everybody has a right to access environmental information

Disclosure of information should be the default

An applicant (requester) does not need to give a reason for wanting the information

You must treat all requests for information equally

You should treat any information you release under theRegulations as if it were being released to the world at large

EIR in Practice (2)

• The Regulations say that any information that is in your possession that you have produced or received is

considered to be ‘held’

• What is included - any recorded information you hold that falls within the definition of ‘environmental information’

• It is not limited to official documents or information you create – it can cover, for example, drafts, emails, notes, recordings of telephone conversations and CCTV recordings

EIR in Practice – Responding to a Request

• A requestor does not need to mention the regulations

• A request can be made in writing or verbally (not defined)

• You should always respond in writing, regardless of whether the request was made verbally or in writing

• Make that information available, unless an exception applies

• You normally have 20 working days to respond to a request

EIR in Practice – Responding to a Request (2)

Regulations state a public authority shall apply a presumptionin favour of disclosure.

Some exceptions may apply:

• If the request is too general• Manifestly unreasonable

Costs - A charge may be applied of a ‘reasonable amount’

EIR in Practice – Exceptions/Disclosures

• 12(4)(c) The request is too general

• 12(4)(d) The request is for unfinished documents

• 12(4)(e) The request involves disclosure of internal communications

• 12(5) Exception based on harmful consequences of disclosure

• 12(5)(e) Commercial confidentiality

• 12(5)(g) Protection of the Environment

EIR in Practice – Regulatory Action

Deletion could be a criminal offence under regulation 19 if thedeletion is intended to prevent disclosure (equivalent S77 FOI)

The ICO will issue a decision notice after investigating a concern. If we find that you have breached the Regulations, the decision notice will say what you need to do to put things right

FOI and EIR – Some Key Considerations

• Jurisdictions

• Valid Request

• Public Authority rules

• Environmental Information defined

• Exemptions/Exceptions

• Timescales

• Costs

Other Issues

• Codes of Practice

• Records Management

• Normal Course of Business

• Other Relevant Legislation

• Good Practice

• Reputation

Q & A Session

www.twitter.com/iconews

Keep in touchSubscribe to our e-newsletter at www.ico.gov.uk

or find us on…

Information Commissioner’s Office3rd Floor

14 Cromac PlaceBELFAST BT7 2JB

028 9027 8757

shauna.dunlop@ico.org.uk

www.ico.org.uk