10. Do I need to disclose information that is already available in the practice publication scheme or published elsewhere?
The majority of the information requested should be covered in the practice publication scheme. Information which can be obtained elsewhere does not need to be disclosed. The practice can then refer the requestor to the appropriate website or publication scheme, for example information which is on the Department of Health website. Also if an individual makes a request for information that is included on the practice publication scheme, the request can be declined. Practices will therefore save themselves time by ensuring arrangements are in place to ensure that their publication schemes are up to date.
11. What information can practices withhold?
Some types of information are exempt from the requirement to make them available. These include:
Absolute exemptions – this includes but is not limited to:
- personal information, the handling and disclosure of which is regulated by the Data Protection Act 1998.
Qualified exemptions – this includes but is not limited to:
- information whose disclosure would harm the commercial interests of the public body or of a third party.
If a qualified exemption applies, the next step is to decide whether the disclosure satisfies the public interest test:
The public interest test
- Information whose disclosure would harm the public good to an extent that is greater than the presumed public good of releasing it.
It generally appears that the public interest will outweigh non-disclosure where there is a question as to:
(i) the transparency in the accountability of public funds
(ii) whether there is proper scrutiny of government actions in accordance with published policy, and;
(iii) whether public money is being used effectively.
However, only the exempt part of the document can be withheld.The rest of the document must be released when requested.
Any use of the exemptions under the Freedom of Information Act should be properly communicated to the applicant in a refusal notice. This should state whether the information is held and why it is believed to be exempt from disclosure under the Act.
It is important to note that in all instances where exemption is used and information is not disclosed, the applicant will be able to challenge this decision primarily through the complaints procedure of the public authority and then via the Information Commissioner.
If a practice needs time to consider whether a public interest test applies, then the 20 day rule is extended for a reasonable period.
12. What is a vexatious or repeated request?
The Freedom of Information Act also allows practices to refuse to fulfil a request for information in cases where it is deemed to be ‘vexatious’ or ‘repeated’. It is necessary to apply this exemption fairly and consistently as practices may need to defend their decisions. The term ‘vexatious’ is not clearly defined in the Act, but the Information Commissioner has published guidance on the Information Commissioner website, and in Awareness Guidance No. 22, on which the following is based.
A request may be vexatious if:
- The applicant makes clear his or her intention is for the purpose of annoying the practice in retaliation/annoyance then this would be grounds for refusal.
- The request does not have any serious purpose or value. If a patient was making a complaint about a doctor’s treatment, and asked for information regarding similar complaints, this could be a valid request. If said patient sought information regarding every complaint levied at the practice, including other doctors, the cleanliness of the cloakroom etc., such information may be seen to have no serious purpose or value in relation to the initial complaint, and hence may be seen as vexatious.
- The request can fairly be characterised as obsessive or manifestly unreasonable. This is a very difficult category to define, but it is possible that practices will get repeat perpetrators of vexatious requests, and it is possible that the practice will have had continued contact with the applicant. This is not to say that the request is for the same information each time, (which could be refused as a repeated request), however, over a period of time a practice may decide that the number of requests from one person is designed to be a nuisance and so choose to refuse information for this reason.
These are by no means exhaustive, but a rather designed to aid practices in the interpretation of Section 14.
13. Who decides if a request is vexatious?
It is to be decided within the practice whether or not a request is vexatious, however, the GPC would recommend that even when a competent staff member has decided that a request is most likely vexatious, it is advisable to refer the decision to a senior staff member/partner, given that the judgement may be contentious and have to be defended.
14. We have been asked to provide information on the number of cases of mumps, measles and rubella, and also on the uptake of the MMR jab by a local newspaper. We only hold this information in individual records. We could find out this information, but are we required to extract it under the Act?
If a practice holds raw data and receives a query for analysis it is not required to extract this information in order to provide it to the applicant. In the above scenario, the Data Protection Act would prevent all of the personal records from being disclosable. The time it would take to anonymise all of the records in order to provide the information in the format in which it is held would almost certainly take the cost over the appropriate limit, which means that the practice could refuse to provide this information.
15. What is the difference between disclosures under the Data Protection Act and the Freedom of Information Act?
Put simply, the Data Protection Act covers personal data, the Freedom of Information Act covers any other information held by the practice e.g. procedures, governance etc. On the whole, if an applicant asks to see personal data this would be exempt under the Freedom of Information Act. The applicant would need to submit a subject access request under the Data Protection Act. The Information Commissioner has advised that personal information can be released under the Act, in so far as the personal information is related to that person’s role in the public authority and where disclosure does not breach any of the Data Protection Principles. An example would be NHS Salary pay bands. Further information can be found on the Information Commissioner’s website.
16. Do individuals have a right to access information held about themselves under the Freedom of Information Act?
If the applicant is requesting personal information about themselves or another person then there is no right to know under the Freedom of Information Act. However, such requests may become requests under the Data Protection Act and should be treated accordingly.
17. Do internal emails need to be disclosed under FOIA?
The Information Commissioner has advised that the Freedom of Information Act provides a general right of access to information held by Public Authorities, regardless of the form in which the information is held. Internal emails may therefore need to be disclosed under the Act. Do not forget that some of the information contained in the emails may be exempt, and other information may be supplementary to the boundaries of the request. Such information does not need to be disclosed. Emails can be deleted during the normal course of business, however, emails must not be deleted with the intention of evading disclosure. It is good practice for practices to have a retention and disposal of documents, including emails, policy.
18. If a member of the public requests information regarding a work in progress, do we need to disclose this information eg draft documents/meeting notes if a decision is yet to be made?
As outlined in question 17, the advice from the Information Commissioner states that information must be disclosed regardless of the form in which it is held. Draft documents/meeting notes may therefore need to be disclosed unless otherwise subject to an absolute or qualified exemption (see question 11). Information intended for future publication is usually exempt.