Freedom of information

An opportunity not to be missed

Maura McCallion, Assistant Director Casework Services at Law Centre (NI), explains the process for requests for information under the Freedom of Information Act and urges voluntary organisations to make full use of the Act, including appealing refusals to disclose information.

How often have you wished you had more information on what a public authority is doing? Many of you may have taken the thought no further, feeling that there would be little point in trying to find out more. However, the Freedom of Information Act 2000 should be a reason to act on your curiosity, as the presumption of government is now that you have a ‘right to know’. Certainly, there are several exemptions which may cover the information you want but in many cases these exemptions are subject to a public interest test. How public authorities apply the public interest test provides scope for argument and you may find unexpected disclosures.

Types of information

Public authorities publish a lot of information and this can be accessed reasonably easily. However, the Freedom of Information Act also allows people to request access to other, non-published, information held by public authorities. This might be emails, memos or statistics, for example. It even extends to emails and documents that have been deleted but are retrievable from back-up files. It might be possible for information held by another organisation on behalf of a public authority to fall within the terms of the Act. Therefore if you know that a private contractor, for example, is likely to hold records or information for a local council, then you may be able to access it.

The Freedom of Information Act is ideal for finding out background or contextual information which might be of interest in campaign or policy work. This could be unpublished statistics or research or correspondence between decision makers. If the campaign is not urgent then plans can be made to try to gather key material from various agencies over time.

Making the request

There is no need for you to explain why you are asking for information though you may wish to do so in your letter or email which makes the request for the information. There is no particular form required though it makes sense to flag up the correspondence as a freedom of information request. It is advisable to be as specific as possible about the information you want. The public authority is obliged to confirm whether it holds the information and then to disclose it unless it is exempt. In certain situations, where an absolute exemption applies because, for example, it is information relating to security matters, there is no obligation even to confirm or deny that the information is held.

Exemptions

If a public authority replies to a request for information stating that it has the material but is not willing to disclose it because it falls within an exemption category, it is important to look at this closely. The public authority’s reasoning will be important here. It is important to check whether the exemption cited is an absolute or a qualified exemption. For some qualified exemptions, if the information sought would not cause prejudice to the interest protected by the exemption, then the exemption does not apply at all.

For other situations where, for example, there is a risk of prejudice or where there is a general assumption that disclosure would be damaging, for example, formulation of government policy, then the public interest must be considered. This involves a weighing of the public interest in disclosure against the public interest in maintaining the exemption. The public interest in maintaining the exemption must be a ‘public’ interest, such as the need for good administration rather than a ‘private’ interest of those working in the public authority in avoiding exposure of incompetence or embarrassment.

The Information Commissioner has set out in awareness guidance a number of public interest factors which would favour disclosure including ‘furthering the understanding, and participation in, the public debate of issues of the day’ and ‘promoting accountability and transparency in the spending of public money’. The guidance is available on www.ico. gov.uk. This website is very helpful in preparing an application or an appeal. There is an Assistant Information Commissioner based in Belfast. This office can also provide assistance.

Importance of appeals

In addition to internal review, there are several appeal stages. The first appeal is to the Information Commissioner. A further appeal is to the Information Tribunal and then on a point of law into the court system. The use of the appeal mechanism is a way of testing whether exemptions have been correctly relied upon. The public authority’s weighing up of public interest factors can be challenged. Although it may take time, it is worth pursuing your request past an initial refusal. This is particularly important in these early years of the implementation of the legislation as it helps everyone to understand the scope of the change.

Scotland – improving your chances

The Scottish Parliament passed its own Freedom of Information legislation. It has stricter timescales for the provision of information and the test of ‘substantial prejudice’ can mean that it is harder for a public authority to withhold information. Therefore if a Scottish public authority might hold the information which you are seeking, due to a sharing of information with a Northern Ireland department or agency at some stage, then it would be worth making a request directly to the Scottish authority. You do not have to be resident in Scotland to rely on the Scottish legislation.

Conclusion

Public authorities in Northern Ireland appear to be disclosing more information as a result of the Freedom of Information Act. It is important however that any refusals to do so are scrutinised closely and appeals considered. Law Centre (NI) would be interested in finding out more about how the voluntary sector has been using the Act and the results of any challenges. If you have made requests or appeals, please contact Maura McCallion at maura.mccallion@lawcentreni.org.

Contact information

Marie Anderson, Information Commissioner's Office - NI, Room 101, Regus House, 33 Clarendon Dock, Laganside, Belfast, BT1 3BG. Telephone 028 9051 1270. Email: ni@ico.gsi.gov.uk.

© Law Centre (NI) July 2006