Freedom of Information Act


Guidance from the Central Consultants and Specialist Committee
January 2006

Important: In the absence of a legal precedent, this opinion is based on the advice available from the Information Commissioner and other legal analyses, rather than case law. This guidance is due to be updated on a regular basis, so do check here on the website for the latest information.

What is the Freedom of Information Act?
1. The Freedom of Information Act 2000 (England, Wales and Northern Ireland) and the Freedom of Information (Scotland) Act 2002 came into force on 1 January 2005. For the purposes of this guidance, we shall refer to the Freedom of Information Act 2000 (England, Wales and Northern Ireland).

2. The Act provides for the right of access to the following information: first all information held by a public authority, unless it is held on behalf of another person or organisation, and second all information which is held by another person or organisation on behalf of the public authority. This right of access is known as the right to know. Within the health sector public authorities include the Department of Health and NHS Trusts, as well as general practitioners who under the Act are each considered as being a public authority.

3. The Information Commissioner’s Office (ICO) is charged with the responsibility of promoting the Act and monitoring compliance. The Information Commissioner’s website (address below) contains more detailed information and guidance on all aspects of the Act.

4. The Lord Chancellor has issued a code of practice for public authorities to follow. This is sometimes referred to as the Access Code. The code includes guidance to public authorities on providing information to applicants and on consulting with any third parties to whom the information relates. The Access Code is available via the Information Commissioner’s website.

What are the requirements of the Act?
5. The Act obliges public authorities to respond to requests about the information that they hold and have recorded in any form and will create a right of access to that information. Public authorities must:

(i) Have a publication scheme in place. The deadline for health service public authorities to establish a publication scheme was 31 October 2003.
(ii) Respond to individuals’ requests for information from 1 January 2005.

(i) Publication Schemes
6. These are papers that detail the types of documents produced, or planned for production, and held by the public authority, including whether or not they are already accessible to the public.

(ii) Requests for information
7. Since 1 January 2005 an individual can to make a request under the Act to a public authority for specific information relating to that authority and/or to an individual other than the person making the request. Requests must:

(a) be made in writing (this can be electronically eg e mail/fax)
(b) state the name of the applicant and an address for correspondence
(c) describe the information requested.

8. A public authority must comply with a request within 20 working days by stating as to whether it holds the information requested and communicating that information to the individual, unless there is a justification for not doing so (see below). If the information has not been forthcoming, the Information Commissioner can be asked to intervene and non-compliance could ultimately be regarded as contempt of court, for which a judge may impose an unlimited fine or even imprisonment of public authority officers. An appeals process is included in the Act.

(iii) Exemptions and the public interest test
9. There are 24 exemptions to access which are specified in the Act – these include for information relating to matters such as defence, international relations and national security.

10. 8 of the exemptions are ‘absolute’. 16 are ‘qualified’ and subject to the public interest test. This is a test which is used by public authorities to determine whether the public interest in withholding the information is greater than the public interest in disclosing it. If the former is deemed to be the case, the information is withheld.

11. The term ‘public interest’ is not explicitly defined in the Act. However, the guidance does highlight that ‘there is a presumption running through the Act that openness is, in itself, to be regarded as something which is in the public interest (Freedom of Information Act Guidance No 3, p4). The guidance also stresses that when applying the public interest test public authorities should be careful to consider only competing interests which are for the good of society as a whole, and not those which are private considerations in the interest of an individual.
How do the Freedom of Information Act and the Data Protection Act fit together?
12. The Data Protection Act (1998) covers the disclosure of personal information relating to an individual to that individual and, more generally, the processing of personal data in an appropriate and fair manner. The Freedom of Information Act relates only to the disclosure of information (not the processing of it) but covers all information held by the public authority, apart from:

a) data which the individual could access about themselves under the Data Protection Act
b) data about a third party which relates to the private life of that third party.

13. Hence if a request is received for information to be released under the Freedom of Information Act relating to an individual’s ‘private life’ (eg details of the person’s family life or personal finances) this information is likely to deserve protection under the terms of the Data Protection Act and hence would not normally be disclosed. However, if the information relates to an individual’s ‘non-private’ life, eg if it concerns someone acting in an official or work capacity, this information would normally be disclosed. Documents which contained a mix of information can be released but with the protected information deleted or ‘tippexed out’.

What happens to information which is usually regarded as being ‘confidential’?
14. The Act includes an exemption from the right to know for ‘information provided in confidence’ (Freedom of Information Act Section 41, available at www.hmso.gov.uk/acts/acts2000/20000036.htm).The law of confidence is a ‘common law’ concept, which means that it is not specifically governed by an Act of Parliament but rather has been developed by the courts as individual cases have been judged. This has implications for applying this exemption.

15. In general, the courts have recognised three broad circumstances in which confidential information may be disclosed:

(i) where consent has been obtained from the affected parties
(ii) where disclosures are required by law, eg by court orders
(iii) where there is an ‘overriding public interest’ (Freedom of Information Awareness Guidance No 2, p3).

Hence although the ICO guidance does state that ‘confidentiality is recognised as an important thing in itself’ (Freedom of Information Awareness Guidance No 2, p3), the exemption for confidential information is one which is subject to the public interest test (see above).

It should be noted that some documents commonly regarded as confidential, such as minutes of meetings, including LNC and MSC meetings held within a trust, could be released. Those keeping the minutes would have to be careful to ensure that personal information contained in minutes was not released.

What are the implications of the Act for consultants?
Can my Trust release information relating to my clinical performance?
16. Yes, they can. The Information Commissioner specified in a press release on 1 January 2005 that ‘information on hospital complaints and the performance of clinicians’ would be considered an example of information which is likely to be ‘routinely disclosed’ (Press release, ‘Information Commissioner Welcomes New Information Rights’, 01.01.05, available at www.informationcommissioner.gov.uk). However, it might be sensible for members to attempt to persuade Trusts to pursue a well-managed method of releasing information, such as through the publications schemes mentioned in paragraphs 4 and 5, and to persuade Trusts to publish this data in a risk-adjusted fashion (see next paragraph). Those providing the information are obliged to meet the costs of doing so, though the Act does state that it should not cause excessive work. The cost limit given is £450, which is regarded as being equivalent to 18 hours work.

Can my Trust release information, even if it is incomplete or misleading?
17. Yes, they can. The guidance on the ICO website on this point states that neither of these factors would be considered ‘good grounds’ for refusing a request (Freedom of Information Act Awareness Guidance No 3, p3). Hence if a Trust received a request to release non risk-adjusted mortality data for surgeons (for example), it would ordinarily be expected to release this data. However, the guidance advises that Trusts should be encouraged to add some explanatory notes or to put the information into a proper context. We would hence advise that members should put pressure on Trusts to adhere to this advice when releasing information and also to ensure that the data that they hold is accurate, complete and risk-adjusted.

Wouldn’t information relating to me be automatically considered private to me?
18. No, for the reasons stated in paragraphs 12 – 15. On the other hand, the ICO guidance does suggest that there are circumstances where information which is private to the individual would not be released. In particular, it is deemed ‘fairly obvious’ that information relating to appraisals would be kept confidential (Freedom of Information Act Guidance No 2, p2) and that ‘internal disciplinary matters would not normally be disclosed’ (Freedom of Information Act Guidance No 1, p5).

19. However, the Information Commissioner states that the Act is designed to improve accountability and transparency. For example, the guidance states that ‘the more senior a person is the less likely it will be that to disclose information about him or her acting in an official capacity would be unfair’ (Freedom of Information Act Guidance No 1, p5). Information relating to individuals would therefore not necessarily be considered private to that individual and would not automatically be withheld.

Don’t I have a right, under the Data Protection Act, to ‘veto’ the release of information which relates to me?
20. No. The Data Protection Act does, however, provide for something known as a Section 10 Notice. This is a written notification to the public authority that the consultant wishes them to cease processing, or not begin processing, personal data concerning themselves on the grounds that it is likely to cause ‘substantial damage or substantial distress to him or to another’ (Data Protection Act, Section 10, available at www.hmso.gov.uk/acts/acts1998/80029--b.htm#10 - go there now). Consultants who have serious concerns about their data being released could hence consider issuing a Section 10 Notice to the public authority.

21. However, it should be noted that public authorities are under no obligation to abide by these notices (although they are obliged to consider them), if there is an over-riding justification for the release of the information. In the case of clinical performance data, it would seem that the justification for withholding the information would not usually exist as the Information Commissioner has specified that such data should be released. We are also advised that information regarding clinical excellence awards could be released.

22. It should be noted that the BMA does not provide advice to members on defamation.

Does my Trust have to inform me that they are releasing information which relates to me?
23. The Access Code states that ensuring that individuals are aware of a public authority’s duty to comply with the Act is ‘highly recommended’. It also says that it would be ‘good practice’ to give individuals advance notice of a release of information which is ‘likely to affect their interests’ (Section IV, Code of Practice on the discharge of public authorities’ functions under Part I of the Freedom of Information Act 2000). Failing this, the public authority should highlight it to individuals after the event.

Further information
24. Further information on the Freedom of Information Act can be obtained from the following websites:

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