The Freedom of Information Act 2000 and the Environmental Information Regulations 2004 - Spring 2005

01 April 2005

Recent reports in the press have aroused great interest in the Freedom of Information Act 2000.

The Act came into force on 1st January 2005 and now any person (company or individual) can make a written application to a Public Authority (PA) requesting access to information it holds.

Unless it has a good reason to refuse, a PA must provide the information and in most cases within 20 working days. If the request is unclear the PA cannot just shrug and say ‘sorry I can’t help, I don’t know what you want’. The PA also has an obligation to help the person clarify his request.

The Information Commissioner (IC), who polices the Act, has been quoted as saying that many PAs are not acting in the spirit of the legislation and are refusing to provide the information requested. Although the Act does allow PAs to refuse, the reasons are limited. Some are unconditional (absolute), such as the provision of personal data. Others are conditional (qualified), where refusal has to be justified by passing ‘the public interest test’. This test states that the pubic interest gained in refusing disclosure of the information must outweigh the benefits achieved in disclosing it. If the test is balanced with no obvious outcome, there is then a presumption to disclose.

Some of the grounds for refusal are:

• Confidential information (PA’s can still be liable for breach of confidence)
• The information can be obtained easily
• The information is to be published
• National security
• Information relating to legal proceedings but only where the case could be compromised.

Embarrassment caused to the PA is not a valid reason to refuse disclosure; the aim of the legislation is to make decision making of PAs more transparent and so make them more accountable. The IC will investigate complaints and can require a PA to disclose the information requested. Additionally if a PA or a PA official deliberately frustrates a request they can both be held criminally liable.

The Act only relates to information held at the time the request was made. There is nothing to stop a PA disposing of documents prior to receiving a request. The Environmental Information Regulations 2004

Made under the Act, these regulations deal with anything that can affect the environment. The regulations not only relate to environmental samples and measurements but also to any policies, procedures or operations that may impact the environment. The public interest test has to be met every time, as all the grounds for refusal are unconditional. In conclusion, the Environmental Information Regulations 2004 Act is worth consideration if you contract with or provide confidential information to a PA, or you have felt that their decision is open to question. For example have you ever lost a bid for a contract when you know that, given the contract specification, your bid could not have been bettered?

In the former case, a business should consider writing to the PA now to make it clear to them what information they regard as confidential. They can also spell out the circumstances when they would wish to be consulted before information is released. This approach will cover contracts that are already in existence, whilst future contracts can be drawn up to provide specific protection for commercially sensitive information. The IC has stated that he recognises that confidentiality is extremely important in business dealings, suggesting that refusals on this ground will be looked at sympathetically. It should also be remembered that a PA can be sued for breach of confidence.
In the latter case, you now have a mechanism by which you can interrogate a PA’s decision making process and make it accountable for those decisions.

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