In this section
- 1. Introduction 1
- 2. What is a FOIA request? 2
- 3. How to deal with FOIA requests 3
- Which act is the request under (e.g. FOIA, Data Protection)? 3.1
- Logging and Monitoring 3.2
- Answering requests (including Acknowledge Receipt or Seek Clarification) 3.3
- Record keeping 3.4
- Is the Information Already Publicly Available? 3.5
- Fees (or Charges) 3.6
- Search 3.7
- Vexatious/Repeated Requests 3.8
- Collect, Assess and Consult 3.9
- Considering release of documents 3.9.1
- 4. Exemption Guidance (also see the Customer Services Intranet Homepage) 4.0
- Applying an Exemption 4.1
- Absolute Exemptions 4.2
- Qualified Exemptions 4.3
- Public Interest Test 4.4
- ‘Neither Confirm nor Deny’ 4.5
- Reply – Letter texts (letters linked to the FOIA Process maps also in Standard
- 5. Internal review and appeal process 5.0
- 6 Further appeal (Information Commissioner) 6.0
- 7. Advice to VOA authors on FOIA 7.0
- Quick links to (via Customer Services Intranet Homepage):-
- FOIA process map
- Frequently asked questions Q&A
- Publications scheme
- Standard Paragraphs
- Appendix A Applying the public interest (see 4.4)
The FOIA process map sets out how to handle and reply to requests for information. It is appreciated that different people prefer to take in information in different ways so general guidance has also been included in the Customer Service Manual. Please note if there are any conflicts between the two instructions the FOIA process map should be followed.
The Act is designed to provide access to information and needs a pragmatic approach to its implementation if this objective is to be fully realised. This guidance should be approached on this basis.
2.1 Section 1 of the FOIA gives any person two rights with respect to information “held” by public authorities.
2.1.1 The right to be told whether the public authority “holds” the information requested.
2.1.2 If so, the right to have that information communicated to him.
2.2 The Act is ‘applicant & purpose blind’; anyone of any nationality can request information for any reason. We must not seek to determine the aims or motivation of the applicant.
2.3 Even a request for information from a public authority (e.g. another central government department), which meets the requirements for a FOIA, could be treated the same as if it had been received from a member of the public. However - our policy is not to treat requests from local and central government as FOIA, at least not in the first instance.
2.4 The FOIA Act defines a request for information as one that is in writing, states the name of the applicant, provides an address for correspondence and describes the information requested. An email address is fine. If you receive a request which you believe has come from a pseudonym contact the Customer Service Team for advice.
2.5 There is no requirement for the application to be addressed to any specific person within the authority. However, we have provided “Requesting Information” on our website to enable a requester to submit a request. Whilst a request must be in written format, the Act also obliges us to assist even those who propose to make a request but have not yet done so.
2.6 This consequently means that an oral request for information should not be ignored: we should advise the applicant of the need to make their application in writing.
2.7 This can be done in a number of ways: -
- advising them of the link on the Internet (via Request for Information to Requesting Information).
- suggesting that another person or agency (e.g. Citizens Advice Bureau (CAB)) may be able to assist them with the application, or make the application on their behalf.
- Offering to take a note of the application over the telephone, through our Customer Contact Record (CCR), and then send a copy of the note to the requester, who can verify the request. This becomes an FOIA request once it is returned.
2.8 The request does not have to make reference to the Act. Even if a different act is mentioned (for example, the Data Protection Act), we will have to consider whether it is a DPA, FOIA, EIR request or a hybrid (more than one).
2.9 Any written request for information should, theoretically, be treated as a FOIA request. However, it is not intended that the Act should put unnecessary bureaucratic procedures in the way of disclosing requested information. Anything done as normal working business, such as sending out printed material (e.g. leaflets, proposal forms, copies of notices) and answering routine enquiries should just be treated as part of our normal working routine. Many requests will continue to be dealt with much as they always have been but the FOIA does, however, affect the way we deal with refusals.
2.10 The deadline for responding to a FOIA request is 20 working days. The day after the request is received anywhere in the VOA, is day one, not the day it is received in the VOA / your business unit. In addition, FOIA requires us to respond to requests ‘promptly’ – even though you can take up to 20 days to respond to a request - always reply earlier if you can.
When your business unit receives a letter, fax or e-mail requesting information, you need to decide first which Act to treat the correspondence under.
If the requester is asking for their personal information, including property information it is exempt from disclosure under the FOIA pursuant to section 40(1), but it must be considered as a Subject Access Request (SAR) under the Data Protection Act (DPA). The CSM or the BM with HR (for our staff) will handle these requests.
If the request is for environmental information it should be treated under the Environmental Information Regulations (EIRs). This defines environmental information very broadly ranging from environmental policy and road building to health & safety in offices and recycling policies. In addition if you wish to seek advice, for your business unit, on aspects relating to environmental and sustainable development you should contact the Business Service Team.
Any other request for information held by the VOA should be treated under the Freedom of Information Act (FOIA).
The FOIA, the DPA and the EIRs do not require the applicant to mention the specific Act when making a request. Even if the request mentions the wrong legislation, you must consider it under the correct legislation and inform the applicant accordingly. These procedures with the process map set out broadly how FOIA requests should be dealt with. In general, there is an expectation that information should be released unless it can be clearly shown that an exemption applies. The FOIA includes exemptions for third-party personal data and taxpayer information, which are discussed below.
Enquiries received locally are logged and monitored via Customer Contact Record (CCR), VICTOR or the Central Data Base (CDB) and can usually be replied to as ‘business as usual’ for example using the Main Subject as the business area and recording the Subject as Disclosure . However where an enquiry includes a request for information it comes under the FOIA and if it is likely to require more consideration, particularly as to whether the information can or cannot be released then it should be treated as a formal request.
Enquiries that include such a request for information need to be passed to the Customer Service Manager (CSM), or the Customer Service Team (CST) at CEO (if the request is received by the CEO Business units) IMMEDIATELY to ensure these are logged and monitored to meet our statutory obligations.
The CSM (or CST) will record the receipt on the FOIA section of CCR, identify who is the “Information Owner(s)” acknowledge the request and forward them to the Customer Service Team at CEO. The CST will in turn forward the request to the HM Revenue and Customs Freedom of Information Unit to log the request. This is because the VOA’s performance is tracked as part of HMRC’s overall performance, which is published by Ministry of Justice. Our process map sets out this procedure.
In practice, with many requests, only the relevant business unit is likely to have the background knowledge or information to deal with the enquiry and if they have received a request, after forwarding it to the CSM, they should begin to collate the information and consider whether there is any reason why the information should not be released e.g. an exemption applies.
The CSM or CST will normally ensure the request is acknowledged and send the “Information Owner” a handling guide. There will be occasions where we need to make sure we are clear what the applicant is looking for. Reasons for clarifying: -
- The request is unclear or vague – clarification is needed to establish what the applicant actually wants.
- The request is too broad, i.e. is likely to take more than 24 person-hours to answer. In such a case we need to invite the applicant to refine their request. We should assist them with this by explaining the sorts of information we do hold and could provide without exceeding the 24 person-hours. If they cannot narrow down the search, then the exemption at section 12 FOIA applies and we would not be required to reply to the request as to do so would exceed the maximum cost limit for FOIA requests (see Notification of Fees section 3.6 for further information).
Remember: FOIA is ’purpose blind’. So we should not try to ascertain the motivation of the applicant, as this is irrelevant, and will provoke the censure of the Information Commissioner’s Office. Any resultant changes to the request should be recorded in writing and depending on the extent of the change either: -
Prepare a note of the change and retain it with the case papers. Proceed with the request as restated. For the avoidance of doubt any verbally agreed changes should be specified in the reply, for example, “I am writing further to your request for information dated [date] about [xxx] which we / was clarified on [date] to mean [xxx] to advise you…”
- Or ask the requester to confirm in writing what their further request is, to avoid the potential for misunderstanding and ensure it is logged correctly.
It will be the responsibility of the Information Owner concerned to:
- Estimate if it would exceed the costs limit to deal with the request;
- Ensure that the information is found (in consultation with other Business Units throughout the VOA/HMRC, liaise with other Government Departments / Public Authorities and the Customer Service Team, at CEO, as required)
- Consider exemptions, apply the public interest test, decide on what can be released and reply to the applicant.
- Prepare information for release
- Protect sensitive information
- Meet statutory deadlines
- Ensure a full record is kept. See section 3.4 – Record Keeping
Recommended standard paragraphs are available on the Intranet to ensure replies contain the correct wording to satisfy the requirements of the Act.
The more complex requests (particularly if an exemption(s) is/are going to be applied) will need to be discussed with the Customer Service Team, who in turn may seek the advice of the HMRC FOIA Unit. This process may be formalised in the light of experience for the most difficult cases and also for new staff who may be faced with the need to take responsibility for FOIA processing without any previous exposure to an FOIA environment.
Keeping a full record of each FOIA application and its handling is vital. With FOIA there is the potential the requests and documentation to be scattered throughout the network. Therefore it has been decided the FOIA paperwork (requests, copies of requests, redacted/summarised documents, notes of which exemptions are being claimed and why, replies) will be held and retained centrally by the CST for at least five years. This also has the advantage that the papers are readily to hand, together, if there are any queries or complaints. From 1 April 2007 HM Revenue and Customs FOIA Unit have been sent a copy of the paperwork for monitoring and statistical purposes.
What this means in practice: -
- Original FOIA request, if received locally, will be passed to the CSM and scanned (or Faxed) to the Customer Service Team who will forward it to the FOIA Unit. A copy will be retained if the request needs to be dealt with locally.
- Requests received direct at the HMRC FOIA Unit (e-mail) - will be passed to the Customer Service Team and forwarded to the Business Unit(s) / Information Owner(s) for the collation of the information and consideration of the exemptions (see section 4). The Customer Service Team will retain a copy.
- Papers for any straightforward cases should be forwarded to the Customer Service Team. This will include the original request, any redacted/summarised document(s), notes of which exemptions are being claimed and the reply (which can be sent electronically to Freedom of Information on the global address list).
It is appreciated that there may be more complex cases involving large files where it may be impractical to do this so a summary of what has or what has not been released should be created and sent with the papers to CST (but not to the requester!).
It is worth mentioning that there may be occasions where it is good practice to indicate, in some form with the source information, that the material has been released under FOIA so it is clear the disclosure has taken place. In straightforward cases a copy of the request and the reply will suffice.
The VOA will keep a record of its requests and replies in line with its policy on holding this type of record and will then dispose of the paper or electronic record at a set time in a calendar year. Further the VOA will have regard to the respective Business Area’s policy on disposal of the information (sought and /or provided by the request) and ensure a copy is retained if there is an outstanding FOIA case or one likely to be reviewed or appealed.
3.5. Is the Information already publicly available, available to the requester or ‘business as usual’?
If the information requested is in our publication scheme or our disclosure log (available on our Internet), has been published in a book or journal, is available at The National Archives, the House Libraries or in any other publicly accessible way, you should advise the applicant where they can obtain the information from, complete CCR and close the request. Also if it is known that the requester already holds the information it is not a requirement of the Act to re-provide the information. This is because information that is ‘reasonably accessible to the applicant’ is exempt under FOIA (section 21).
If the applicant explicitly made the request as an FOIA request, we should respond formally explaining that the information is exempt, under section 21 FOIA, and pointing (or providing a link) to the source if applicable. For example, stating that it is on the Internet via our corporate website or DirectGov or Business Link rather than just say it is on our website at: www.voa.gov.uk. This is because section 17 FOIA requires a public authority to issue a “refusal notice” whenever it applies an exemption.
Information is exempt under section 21 FOIA even if it is only reasonably accessible on payment of a fee. If it is VOA policy as indicated in our publication scheme, to charge for information requested, even if the request is made under FOIA the information is not free. If you have any queries over this issue contact your Customer Service Manager for guidance in the first instance. Alternatively it may be appropriate to contact our Data Strategy Team.
Also if it is a request for a form or a leaflet this is ‘business as usual’ and should not be recorded as a FOIA request.
However a letter enclosing an appeal form can refer to more than one issue and if any part of it is a FOIA request it should be sent to the CSM / CST see 3.1. Logging and monitoring and FOIA process map. It is good practice to explain to the requester what elements of their correspondence is being dealt with under FOIA and what relates to say, for example, an ongoing case.
Under section 14 of the FOIA information is exempt from disclosure if the cost of locating and extracting it would exceed £600. This has been costed at £25 per hour and so represents about 3½ days work (sometimes referred to as the marginal costs). The Information Commissioner’s Office (ICO) have provided guidance on what can and can’t be included in the calculation. If the cost would exceed £600, the information is exempt even if the applicant offers to pay the full cost of answering the request.
If the costs are likely to be more than £600 the VOA, in line with our parent organisation (HM Revenue and Customs), have agreed that we will decline to deal with the request citing the exemption at section 14 FOIA. A requester can ask for an internal review of that decision and subsequently complain to the Information Commissioner if he is still dissatisfied.
We are under a duty to discuss and clarify the request to see whether we can provide them with some of the information within the limit, and the ICO will want to see evidence that we have done this. The costs of copying/posting etc. can be charged for in addition as ‘disbursements’. Due to the costs of collecting fees it has been decided that we will only charge for disbursements over £25 (If providing paper copies, the cost will be calculated at 10 pence per sheet plus postage).
Note that we will not be exempt under section 14 from complying with the duty to confirm or deny whether we hold the requested information unless the estimated cost of compliance with that duty alone would exceed the appropriate limit. However, other exemptions from the duty to confirm or deny may apply and should be considered.
You will have to find the information requested before you can decide whether to release it or not. FOIA covers all information whatever its age, classification, format, source or location. Consequently, you will need to look through relevant paper files, electronic files and emails. This emphasises the need for good record keeping. Remember before you consider exemptions or if considering fees or costs, establish whether we hold the information requested. Unless it is apparent from the wording of the request that it would take the equivalent of one person over three and half days to search, locate and retrieve the information. . If we do not hold the information the FOIA does not apply.
While the applicant does not have to be overly specific about what they want (i.e. they don’t have to ask for specific files) the search you conduct to find this information must only be reasonable. This means that you do not have to look through every file or email available on the off chance it might hold something appropriate.
However a thorough search of our records should be undertaken and you should consult with any other business units which may ‘hold’ information. It is difficult to be prescriptive on this issue. However with ‘open or general requests’ if you are the designated “Information Owner” please take the opportunity to consult with experienced members of staff to check that all possible locations have been considered.
If any of the material held is for / from a foreign government you should contact the HMRC FOIA Unit or CS Team. FOIA covers information received from other jurisdictions, but we may need to refer the information to the originating government to check their opinion on its release. There is an exemption to protect confidential information supplied by foreign governments, if held.
The Act does not oblige us to comply with a request for information if the request is vexatious or repeated. The Information Commissioner’s Office has provided guidance and this is the one instance where we are can consider the motivation and history.
‘Vexatious’ is determined by the information requested, not the person making the request. An individual can make as many requests for information as they wish – each of their requests must be considered on its merits but the provisions for aggregating costs may be relevant. If the request is aimed at disrupting the work of the department or harassing individuals in it, then it may be vexatious but you should consult the Customer Service Team at CEO before refusing a request on these grounds.
Where we have previously complied with a request for information by an applicant (either by releasing or withholding information), we are not obliged to answer a subsequent identical or substantially similar request from the same person unless a reasonable interval has elapsed between compliance with the previous request (at least three months) and the making of the current request. ‘Reasonable interval’ will depend on the circumstances applying at the time. If you get a subsequent request flag it up for consideration when you forward it to the Customer Service Team at CEO.
Once you have collected together the relevant material you must assess it all for release – line by line in some cases. This process may require consultation with other members of staff, other business unit(s), other government department(s) and our client(s).
- Remember – protective markings are not in themselves a reason for non-disclosure e.g. “Restricted” or “without prejudice”. The only reason to withhold information is if it is properly covered by an exemption. However, a marking may indicate that an exemption to release is likely to apply.
- It is the VOA’s policy to “mark” information. If the information requested has been given a marking and you are unsure what it means always ask, check our Data guidance or speak to your line manager.
- Where third parties are involved (for example, clients) they must be consulted about potential prejudice from release of the information.
- Communications (Engagement and Change) should be advised, in the first instance, if there is an indication that the enquiry may be from the media or the response being compiled is likely to be of interest to the media
- The HMRC FOIA Unit with the VOA will be monitoring the requests and process and hold a summary database of how similar previous cases have been dealt with. In addition through our Disclosure Log, which is on our website, there is information about cases which cover when information can / cannot provide where appropriate and thwe information may have already been provided or made available.
- The FOIA Unit and Customer Service Team, at CEO, are responsible for providing general advice; ensuring VOA has access to the latest information on FOIA, for the provision of appropriate training and preparation of guidance material.
- There is an e-Learning package called “Information Law” which has a section on FOIA.
- Remember to utilise the FOIA process map.
- Consider whether any other legislation applies; “outside of FOIA!” if unsure seek the views of your CSM or the CST.
- Finally as you are extracting information it is also good practice to indicate, in some way, that the material is covered by a request (reference and date) and ultimately whether it is released under FOIA, so it is clear that its disclosure has been authorised. You should also keep a record of any document if any part of it has not been released and why.
Some documents may contain a mixture of information that can be released and information that is subject to an exemption. There are various ways of approaching this according to the circumstances. The FOIA Act applies to information, not documents, so one method of extracting the information would be to cut and paste into a new document. This can be undertaken for example if the request relates to one element of a large document. For more guidance on the release of information view the process map.
Making a summary
If most of the information is exempt, preparing a summary of the information that is not exempt is probably the quickest and most effective way of dealing with it.
This involves deleting any words/passages that are covered by an exemption. Never redact an original document, always copy it first. The ICO have a very good guide on the distinction between ‘extracting’ information within scope and ‘redacting’ exempt information.
Redaction tape is available – using this is generally accepted as the safest method of making the redacted material invisible. It consists of white tape in various widths that can be stuck over the relevant material. The document is then recopied.
There is a particular risk when redacting electronic documents since deleted passages in electronic documents can be recovered by the recipient. Although there are tools available that will convert documents to PDF on some PCs, these are not sufficiently secure to prevent unauthorised disclosure of redacted information.
Therefore an edited electronic version should never be released. If the applicant requires an electronic version, the edited version must be printed and scanned as a PDF which can then be sent. (This facility is available at various points in the network).
Apart from keeping copies of the original and redacted/summarised document, a note should be made, which is kept with the copy for release, of which exemptions are being claimed for which deletion. This will make any future reference much more straightforward.
If none of the information in the documents is exempt, but preparing them for release is unduly onerous (e.g. if they are very voluminous), it is an option to offer supervised access so the applicant can see them and make any notes etc. on site.
Meeting the applicant’s requirements
We should try to offer any information in the applicant’s preferred format, subject to considerations of cost. The applicant should be consulted if this is an issue and a compromise sought. It is not necessary, for instance, to analyse spreadsheets but it is good practice to explain the background to any information supplied where this will assist the applicant in understanding it.
What to do with the paperwork / reply.
Ensure once the reply has been sent that the relevant papers are forwarded to the Customer Service Manager, or the Customer Service Team at CEO, for the local and national closure processes see process map. It is very important that all the papers are passed on and it is clearly recorded when deciding on release, what information was released, what was considered but not released, any redactions or summaries and all correspondence with the applicant. If you use the Customer Contact Record ‘notes’ to record the thought processes please ensure you place your initials and the date by each separate action.
There are 23 exemptions to releasing information under the Freedom of Information Act (Exemption Guidance) Half will rarely be applicable to VOA. Of these, perhaps half a dozen will cover most cases. Within the Exemption Guidance there are hyperlinks to the law, which give you what the Act says, and the guidance, which are based on notes initially issued by the Department for Constitutional Affairs (DCA) now the Ministry of Justice (MOJ)]. We suggest you contact the Customer Service Team, or the Freedom of Information Unit before applying sections 23 to 38, for further guidance.
Of the 23 exemptions, 7 are absolute exemptions. When information falls within the terms of an absolute exemption, the information can be withheld without considering the public interest balance between disclosure and non-disclosure. They include, notably, section 44, which exempts information if its disclosure is prohibited by “any enactment“. This exemption will apply to most customer-specific VOA information.
The further 16 FOIA exemptions are qualified exemptions. This means that information that falls into a particular exemption category (for example section 43 (2) our Commercial Information) will still have to be disclosed unless it can be successfully argued that the public interest (PI) in withholding it is greater than the public interest in releasing it.
Consequently, this means that even if you have judged that one of these exemptions applies to a piece of information, you are still obliged to apply the public interest test to it. The Customer Service Team at CEO, and The FOIA Unit, can be contacted if you require advice and to help you consider the exemptions more detailed guidance is available on Customer Services Home page Freedom of Information Exemptions.
The public interest test requires you to assess whether the public interest in withholding information outweighs the public interest in disclosing it. If the arguments for and against are evenly balanced, we must release.
The existence of the public interest test recognises that although sometimes a particular interest may be harmed by disclosure (and is therefore protected by an exemption), if other, broader, factors are taken into consideration, the balance may be tipped in favour of disclosure because of the overall beneficial effects for the public in releasing the information. The concept of the public interest is not defined in the Act. This is deliberate, so that those taking decisions on requests for information have to perform a specific analysis of the issues in question at that time, rather than relying on set criteria. Broadly speaking, it requires us to balance three ideas when reaching a decision on what information to disclose:
- The principle of openness and accountability
- Respect for individual’s right to privacy
- The wider public interest in effective public administration, which may require information to remain confidential.
All these factors must be weighed with the need for the information to be withheld.
- See Appendix A if you would like more details on the Public Interest Test
FOIA creates the statutory right to request access to information held by public authorities. There are two parts to this statutory right. Any person making a request is entitled to: a) Be informed in writing by the public authority whether it holds information of the description specified in the request, and: b) If that is the case, to have that information communicated to them.
The duty on public authorities to comply with a) is described in FOIA as ‘the duty to confirm or deny’. Some FOIA exemptions (for example, section 44 (2)) provide an exemption from the duty to confirm or deny, as well as from the duty to disclose the information held. The two parts of the duty must be analysed separately. An exemption from the duty to confirm or deny will usually be subject to some sort of public interest test or other condition—it is important to check the precise terms.
For example, taxpayer information that meets the conditions in section 23 CRCA is exempt from disclosure under FOIA section 44(1). Also, FOIA section 44(2) provides that there is no duty even to confirm or deny whether we hold such information if to do so would itself disclose information that would be exempt under section 44(1). This is often the case for taxpayer information held by the VOA, because confirming or denying that we hold information would reveal whether we have or have not had dealings with an identifiable person.
Recommended Standard paragraphs are available on the Intranet, these should be used where appropriate.
As a requester has a right to appeal or complain about the way their request has been handled they should always be told of these rights in the reply. This is a requirement of section 17 (7) of the FOIA. Here are our standard paragraphs:
“If you are not happy with this reply you may request a review by writing to The Chief Executive's Office: Customer Service Team, Valuation Office Agency, Wingate House, 93/107 Shaftesbury Avenue, London, W1D 5BU. email: email@example.com . You must request a review within 2 months of the date of this letter. It would assist our review if you set out which aspects of the reply concern you and why you are dissatisfied.
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner (ICO) for a decision. Generally, the ICO cannot make a decision unless you have exhausted the complaints procedure provided by the Valuation Office Agency. The Information Commissioner can be contacted at: Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF”
As a requester has the right to appeal our decision of non-release to their FOIA request and to complain if they are not happy about any aspect of how their request has been handled – even if the information has been provided. Accordingly they can request an Internal Review
The applicant should have been invited to write to Customer Service Team for the VOA Internal Review and this can include a reconsideration or review of their case and or issues about the handling of the case and the final decision. These should be passed to the Customer Service Team, if they have not been sent directly to them, who will register them as an Internal Review, acknowledge receipt, co-ordinate the review (included requesting all the relevant papers) and reply to the applicant.
If the original FOIA request has been dealt or advice given by a member of the CST, the review must be undertaken by any member of staff who was not involved in the original case handling, as it is a fresh review. The Information Commissioner has provided guidance that a straightforward review should usually be undertaken within 20 working days, and even a complex one should take no longer than 40 days.
The Customer Service Team’s reply to the applicant will explain their right of appeal to the Information Commissioner. The Standard wording is:
If you are not content with the outcome of this Internal Review, you have the right to apply directly to the Information Commissioner (ICO) for a decision. The Information Commissioner can be contacted at: Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF”
Applicants can appeal (complain) to the Information Commissioners Office (ICO) at any point however the ICO will not generally give a decision unless you have exhausted the complaints procedure provided by the Valuation Office Agency which usually means after an internal review.
The ICO is the independent body, which oversees and enforces FOIA, as well as Data Protection Act (DPA) and the Environmental Information Regulations (EIRs). If the ICO decides to investigate, they can ask to see all of the requested data and our case handling information in order to review the case. They have statutory powers of entry if anyone refuses to hand over the documents.
If / when the ICO issues a Decision Notice (DN) these are published on their website and there are a number of search options to look for decided cases and see whether they have been upheld or not and what exemptions have been used.
The ICO can overturn our refusal of a request by issuing a decision notice. If we disagree with an ICO decision notice, we can appeal to the Information Tribunal. Similarly a requestor can appeal to the Information Tribunal where the ICO has upheld our decision not to release information.
The Commissioner makes an annual report to Parliament on how well the various public bodies have applied FOIA
Statistics on FOIA requests are published on the Ministry of Justice’s website and historically on the Department for Constitutional Affairs website HMRC provides these (including the VOA) on a quarterly basis.
The Freedom of Information Act (FOIA) received royal assent on 30 November 2000 but key sections did not come into force until 1 January 2005 (it superseded the non-statutory ‘Open Government Code’). It is fully retrospective and applies to all recorded information, including e-mails and data held electronically.
The Environmental Information Regulations (EIRs), which implement an EU directive, came into force at the same time. This provides right to information about pollution, conservation, the natural environment, land use, road building and many other issues. We all need to know our obligations and to comply with them. Take the time to acquaint yourself with the FOIA and the EIR sections of the Customer Service Manual. In addition there is an e-Learning package which covers, FOIA and EIR in Information Law. In addition if you wish to seek advise on aspects relating to environmental and sustainable development you should contact the Business Service Team in Human Resources (HR). Finally the existing Data Protection Act (DPA) covers personal information we hold on ‘living individuals’ and there is a section within the Guide relating to the personal staff records.
The VOA already releases a lot of information both proactively and on request. For example most of our manuals are on the Internet and Intranet including this one. Also our FOIA Publication Scheme shows our commitment to place information in the public domain if we have identified a need but sets out when we may not. In addition we have a “Disclosure Log” which is published on our website.
As an author you have to approach the drafting of any instruction from the perspective that it will be available for the public to see. This may have implications on your writing style and content (e.g. do not use VOA ‘jargon’ or abbreviations without explanation). If you have specific concerns about what you are saying, firstly consider whether you can overcome your concerns through redrafting the instruction.
Alternatively consider whether one or more of the exemptions relate to what you are saying. For example, we should never release information about named taxpayers under our duty of confidentiality to them as set out in section 18 (1) and 23 of the Commissioners for Revenue and Customs Act 2005, in fact this Act refers to “persons” and whether you can identify a “person”. Also section 43 (2) of the FOIA relates to information which prejudices our and / or our clients’ commercial interests. Information is exempt if its disclosure would be likely to prejudice interests such as defence, law enforcement, commercial interests etc.
Other areas where there will be limited disclosure are personal Information if release would breach the Data Protection Act (section 40), information whose disclosure would be a breach of confidence (section 41), Legal professional privilege (section 42). Please browse the exemptions.
However, most exempt information will be released if the public interest (PI) in disclosure is greater than the public interest in confidentiality.
(The EIR exemptions are different and fewer and all subject to the public interest test. If you wish to seek advice, on considering and applying exemptions contact the Customer Service Team at CEO. For more information about EIR you can also take a look at www.defra.gov.uk)
Having considered and applied an exemption(s) to any information you have created, you must keep a record of what and why the exemption(s) has / have been applied with the source document(s). This is because if we receive a request for information, which encompasses the ‘written record’, we will be in a better position to consider whether we should still withhold, part release or release the instruction at a later date. Remember historic documents can be requested if we still hold them at the time of the request.
As a VOA author you may be an ‘Information Owner’ this means that if the VOA or HM Customs & Revenue FOIA Unit receive a request for information on a given subject, we may approach you as our ‘expert’ or holder of information to consider what should be released. Take a look at the FOIA process map for the role of the Information Owner.
Remember - the presumption within this legislation is to make information available unless it falls under a specified exemption. We have to strike the balance between extending people’s access to our information and preserving confidentiality where disclosure would be against the public interest or breach the rights of an individual / person (person includes both living persons and legal entities such as companies, trusts and charities) . Section 4.4 and Appendix A gives more advice on applying the public interest tests. Any of our decisions can be appealed.
Matters of public debate or information tending to favour release:
- the case is particularly strong where the information would assist public understanding of an issue subject to current national debate
- the issue has generated public or parliamentary debate
- proper public debate cannot take place without wide availability of all the relevant information
- the government has already placed its general assessment and judgement on public record
- the issue affects a wide range of companies or individuals
- authentication processes for important electronically filed documents
- public access to the operations of government
- public safety
- public participation in political debate tending to favour release
- enhancing the ability of a local interest group to effectively represent local interests on an issue
- facts, analysis, views and representations affecting major decisions
- political issue of virtually unprecedented importance
- accountability for public funds tending to favour release
- accountability for proceeds from the sale of assets or amounts spent on administration
- openness and accountability for tender processes and prices
- misappropriation of public funds
- propriety of public officials
- obtaining value for money
- availability of accurate cost estimates of public projects
Public interest likely to be served by non-disclosure:
- protecting names of third parties (not necessarily officials) where information on the substance has already been released
- sensitive issues still on the agenda or where government policy is still evolving
- premature release of commercial information which could prejudice sale of public assets
- premature release of sensitive information that would damage commercial interests
- release of sensitive information that would damage VOA/ DVS commercial interests – you have to go into some detail setting out the reasons why (in the first instance seek further advise from the CST) .
- a final report is due shortly
- the information already released is sufficient to inform the public
- other forum or process is available to address public interest concerns
Take a look at the Information Commissioner’s and the Information Tribunal approach to applying the public interest test in their Notices of Decision (DN which re available on their respective websites. Alternatively contact the Customer Service Team.