Information is an invaluable asset to any organisation. As a public authority the London Borough of Enfield (LBE) relies on this information in order to carry out statutory and other functions as well as deliver services to all its residents. However holding this information imposes certain legal obligations which council officers must be aware of so that the authority does not fall foul of them. The central legislation that this policy document focuses on is the Freedom of Information Act 2000 (FOIA 2000) and to a lesser extent Environmental Information Regulations 2004 (EIR 2004).
The document provides a framework for LBE officers to meet legal and corporate requirements in relation to information requests that fall within the scope of FOIA or EIR legislation.
This policy relates to all information held by LBE regardless of the format it is held or when it came into the possession of LBE. Furthermore the information does not necessarily have to originate from LBE (for example, it may have originated from another LA, a contractor or any other third party). The only criterion is that LBE, at the time of the request, holds the information or it is held on LBE behalf by a third party.
This document sets out the policy framework to assist officers in complying with the council’s obligation under the Freedom of Information Act (FOIA). It is not intended that this document provides a comprehensive guide as to the legal obligations that apply under the FOIA, and should be read in conjunction with the following references:
- Freedom of Information Act 2000
- Environmental Information Regulation 2004
- Section 45 (Freedom of Information Act) Code of Practice
- London Borough of Enfield Charging Policy
- LBE Guide to the FOIA
- Guidance published by the Information Commissioner’s Office
Aim of the policy
The aims of this document are to:
- assist officers comply with the law
- ensure free and reasonable access to information held by the council
- promote greater openness
- provide increased transparency of decision making
- build public trust and confidence
These aims will be balanced against the need to ensure the confidentiality of some information relating to such areas as personal privacy, confidentiality and commercial sensitivity where disclosure would not be in the public interest.
LBE is committed to openness about the way in which it operates and makes decisions and there will be a presumption in favour of the disclosure of information where ever possible. This policy sets out the general principles that will be adopted by the council in response to requests for information under these statutory access regimes.
Roles and responsibilities
Ultimate accountability for all decisions made relating to Freedom of Information and associated legislation lies with the Chief Executive.
Application of Section 36 exemption (FOIA 2000) can only be sanctioned by the council’s Monitoring Officer.
The Executive Management Team (EMT) is responsible for ensuring that sufficient resources are provided to support the requirements of this policy as well as making strategic level decisions which impact on how LBE carries out its obligations under the legislation. Each Director is responsible for monitoring compliance within their service area and taking any necessary corrective action.
The Information and Data Governance Board (IDGB) monitors, oversees, reports and makes recommendations to EMT on all strategic level FOI issues and monitors performance monthly.
The Central Complaints and Access to information team (CAIT) log all FOIA and EIR requests and provide advice and guidance on legal compliance with FOIA as required including advising on reviews and reporting on issues and performance to IDGB. The CAIT manager also provides a lead for raising awareness and increasing proficiency in handling FOI requests within the organisation. The CAIT manager will represent LBE in any Pan-London forum on FOI issues. The CAIT manager is also the council’s main point of contact for the ICO.
The Manager/s of the team/s or service/s that possess the requested information is/are responsible for overseeing the handling of the request. The Manager/s within the team/s or service/s is/are responsible and accountable for the information that is or is not provided. If in any doubt as to whether information should be disclosed or not then managers should seek a legal opinion. Managers may also be called upon to undertake a review if requested by an applicant. Finally, Managers are responsible for assisting as necessary in the ICO investigating a complaint made against the council.
All LBE employees have a responsibility to ensure that they and the staff they manage have undertaken the prescribed corporate FOIA training and have sufficient awareness of the FOIA so that they are able to identify and appropriately process a request. Processing requests could mean simply passing the request to the appropriate officer to deal, contributing, co-ordinating or responding to a request. Handling requests for information is an important front line service and is everyone’s responsibility. All employees will be expected to play their part.
Training and awareness
It is mandatory that all LBE staff (including temporary or casual workers) undertake the corporate E-Learning FOIA module. New entrants will be expected to undertake and successfully complete the module within 5 working days of joining the council. Established staff will be expected to undertake and complete refresher training as directed.
Managers should encourage and make time for their staff to attend any further FOIA training or awareness opportunities that may arise.
Failure to complete the courses within the prescribed period could result in disciplinary action proceedings.
Requests for information
Different type of information requests
Not all requests for information are necessarily handled under FOIA/EIR legislation. For instance, requests for personal information, belonging to the applicant themselves, is governed by access rights available under the current data protection law. Also, where information is requested which is of a more routine nature (see examples below) these can be handled as a business as usual request and consequently dealt with under the council’s local procedures for dealing with requests for information. Requests for information that may fall within the scope of a business as usual request may include but is not limited to the following examples:
- Requests for council leaflets, brochures or other publications
- Opening times of council offices or the names of managers of public facing services (for example, Day care centres)
- Routine information regarding council services (for example, Refuse or recycling collections day for particular residential areas or details of instrument lessons available for school aged children attending schools in the borough)
- Any other type of information requests that are routinely handled and delivered over the phone
If in any doubt as to whether the request should be handled under FOIA or 'business as usual' it is recommended that you treat under the former to reduce the risk of non-compliance with FOIA.
Methods of making a request under FOIA
All requests must be made in writing and the council encourages requests to be made electronically via an electronic on-line form on the council’s website. This method reduces the risk of the request being mislaid or lost and is the most efficient method of getting the request to the appropriate officer to respond.
However the legislation does not oblige the requestor to submit the request on-line and the request is acceptable by post by email or fax. The clock (public bodies have 20 working days to respond), will start as soon as the request arrives in the council (and not necessarily from the day the responsible officer receives or reads it). This is why it is essential that there is no delay in handling the request and that it is directed to the appropriate team or officer as soon as possible. Should a council officer inadvertently receive a request that they or that team are not in a position to handle (for example, do not hold any of the relevant information) then contact the relevant officer or team in question to advise that a request has arrived for their attention. By doing this there is a reduced risk that the request is missed or delayed.
Although requests under FOIA cannot be made verbally the legislation permits environmental information made under EIR to be made in this manner either over the phone or in person. However wherever possible the applicant should be encouraged to make the request in writing.
Logging the request on corporate FOI database
Requests will be logged and co-ordinated by the central team.
Time limit for responding to a request
Although the council has 20 working days to comply with a request, council officers are expected to respond to the request as quickly as is reasonably possible, given the resources available and the complexity of the request. In any event the time limit allowed should be seen as an absolute maximum, rather than a target for responding and resources will need to be managed accordingly to ensure that the statutory limit is not breached.
It should be noted that in cases where additional information is sought from the applicant to help locate the information requested, or if a charge notice has been issued (in the event that the charging policy applies), the waiting period is not counted towards the 20 days allowed.
Where a request is transferred from another public body to LBE (for example, another Local Authority) as it was identified that LBE held part or all of the information requested, the first day of the statutory period will be the first working day after LBE receives the transferred request (also see 7.9).
Contentious or novel requests
As a public body the council has a statutory duty to comply with the Freedom of Information Act and, when responding to a request, provide any information that is held subject to any exemptions that may apply.
If a contentious or novel request, which may be the subject of media interest, is received it should be referred immediately to the Press Office Manager (extension 5147) so that they are aware. The responsibility for dealing with the request remains with the service/s that possesses the information.
The Press Manager should also have sight of the final response before despatch for comment and advice. The Press Manager will only be able to provide assistance on the phrasing of the response and cannot advise you on the actual content (the raw information). The substance of the response is determined solely by the request itself, the information that is actually held and any exemptions that may apply.
To assist officers in determining what should be referred to the Press Manager please see Appendix 1 for guidance. If in doubt about referring please seek the advice from the Press Manager.
If a request subsequently undergoes an appeal, the Press Manager should be notified and have sight of the appeal response before despatch to the applicant for comment.
When referring a draft response to the Press Manager please allow up to 2 working days turnaround time. This will need to be taken into account in meeting the statutory 20 day limit.
Information required from the applicant
Information requests are motive blind, meaning that the requestor should not be challenged as to the reason for why the information is being asked. The only relevant factors are whether we hold information and whether circumstances exist why the information may not be disclosed (a statutory exemption is engaged).
The council is only obliged to comply with a request if an applicant makes a request in writing (although request for environmental information under EIR can be made verbally) and provides the following:
- A description of the information so that it can be located. If there is any doubt about what information is being requested the applicant should be asked to clarify their request as soon as possible. The officer dealing with the request should not presume or anticipate what the applicant is requesting.
- A means by which a response can be communicated to the requestor such as a postal or email address
- The applicant’s name. If the applicant only provides the name of an organisation this is also acceptable. There are occasions where applicants may use fictitious or assumed names. If it is suspected that this is the case officers should use their discretion. The real name of an applicant is only usually relevant if for instance personal information is being sought and the identity of the requestor is necessary to ascertain whether they are the data subject or a third party. The true identity of an individual is also necessary if the applicant is using a pseudonym to either circumvent the appropriate limit or because the applicant has previously been issued with a vexatious refusal notice. If in doubt legal advice should be sought.
Where complying with a request would exceed the 'appropriate limit', which is set at £450 (or 18 hours of an officer’s time) officers should advise the applicant that the cost limit applies and provide guidance to the applicant on modifying the request so that the request can be dealt with within the limit.
If officers refuse to comply with the request (as permitted under Section 12 FOIA 2000) because the appropriate limit will be breached, then they should make a note of how the estimate was arrived at. This is so if the refusal is subsequently challenged, there is evidence at hand than an estimate was undertaken and shows that compliance with the request would breach the limit.
The estimate is no more than a rough calculation of the time likely to be taken to comply with the request.
Where to comply with a request requires one or more officers to search through 80 separate files or records which on average would take approximately 15 minutes to review each one. Therefore the total time required to collect the information would be 80 x 15 = 20 hours, which exceeds the appropriate limit of 18 hours.
In this situation before invoking section 12 and refusing the information request, the council officer would be expected to have first engaged with the applicant to explore if at least some information can be provided within the limit.
Under FOIA the council is permitted to make reasonable charge for photocopying, printing and postage costs or disbursements. A charging policy is available on our website on how the council applies these charges.
It should be noted that only the costs of materials can be included in disbursements costs and cannot include staff time.
Third party consultation
Some requests under FOIA may require council officers to consult with third parties (for example, partner agencies and contractors) to consider whether any exemptions apply.
A refusal to consent to the disclosure by a third party is not determinative in whether information is disclosed or otherwise, but such opinion should be considered alongside other relevant factors to make this assessment. The final decision on whether or not to disclose rests solely with LBE.
LBE will only accept information from third parties in confidence, if it is necessary to obtain that information in connection with an exercise of any of the authority's functions and it would not otherwise be provided. LBE will not agree to hold information received from third parties 'in confidence' which it believes does not have the necessary quality of confidence.
Potential and existing contractors must be made aware of LBE obligations with regards to FOIA and EIR and that all information held by the authority may be disclosable subject to any relevant exemption that applies.
Joint service responses
A response requiring contributions from more than one service must be handled efficiently and seamlessly. A response must in any event be consolidated so that all the information requested is provided in a single response back to the applicant.
It is recommended that there is a lead officer who takes responsibility for handling the response. The lead officer will normally be in the service that either holds the bulk of the information requested or holds any contentious information, which may have been requested and may be subject to statutory exemptions.
The respective departmental lead/s should carefully monitor the progress of requests where contributions are required from several services and ensure that a lead officer has been identified for handling the response as early as possible. They should also ensure that that the request is logged on the system once only. This is to avoid double counting and any confusion in the handling of a request.
A request can only be transferred to another public body where LBE receives a request for information which it does not hold itself. There may be occasion that LBE holds only part of the information in which case LBE should respond to that part of the request for which it holds information and transfer the remaining part of the request to the other public body for it to respond separately. This will also apply in most circumstances to requests where information is held in part or wholly by companies owned by Enfield as they are also public bodies.
Before transferring a request LBE must ensure that the identified public body does indeed hold the information that has been requested. Furthermore the applicant should be contacted as soon as possible to advise that LBE does not hold the information and to seek consent to transferring the request to the public body holding the information. Alternatively the applicant should be advised to contact the public body holding the information directly.
Where information is held on LBE’s behalf by a third party (for example, a contractor), this is captured by FOIA and LBE should respond as if it physically held the information.
Right of appeal
In circumstances where information is being withheld in part or completely, a refusal notice must be issued to the applicant which must include references to the right of appeal. Although there is no legal requirement to refer to this right of appeal if supplying all the information as requested, it is good practice to do so.
A formal review process must be carried out by LBE if requested by the applicant. This may happen where the applicant is unsatisfied about any aspect of how their request was handled (including exceeding the 20 day time limit). Although there is no set time stated for when the review must be completed, officers should aim to complete the appeal and respond to the applicant within 20 working days of receiving the written appeal request. If the applicant is still unhappy they may apply to the Information Commissioner to review their case. Full details of the review procedure can be found at Appendix 3 attached.
Re-use of public sector information regulations
The purpose of these regulations is to establish a framework that provides for the appropriate re-use of public sector information. Re-use raises copyright and licensing issues and would generally require specific permission from the copyright owner. Although FOIA provides access rights to information it confers no rights whatsoever to the applicant as to subsequent use of the information.
Should an applicant wish to use the information that extends beyond their individual use they are bound by conditions imposed by the copy right owner. Please see Appendix 2 on the Re-use of Public Sector information which outlines the standard conditions for re-using LBE copyright information.
Disposal and destruction of information
FOIA only applies to information that a public body holds. Where information is earmarked for disposal, as it is no longer required, there is nothing preventing public bodies from carrying out these routine records management responsibilities.
It is illegal under the section 77 of FOIA to wilfully destroy or alter any original documents in order to avoid releasing information. It is important to note that it is the individual that is responsible rather than the public body and carries a fine of up to £5000. Any officers found guilty of such an offence will almost certainly face internal disciplinary proceedings and possible dismissal.
Please also see section 11 below which relates to the retention schedule for FOIA related documents.
FOIA requires all public bodies to adopt the Information Commissioner’s publication scheme. The scheme:
- sets out the types of information we must routinely publish
- explains the way we must provide the information
- states what charges can be sought for providing information
- commits the council to providing and maintaining a guide to the information it provides, how it is provided and any charges where they apply
The publication scheme facilitates the pro-active release of information and the council encourages as much information as possible to be released in this way and not just to information prescribed within the publication scheme.
The council has produced a publication scheme which provides an overview of the information that LBE publish.
It is the responsibility of each service area to publish the information that they possess either on the LBE website or hard copy information and to ensure it is accurate and up to date. If new information is published, please notify the Web Team so that the information can be added to the Guide to Information.
Retention periods for FOIA related documents
The following retention schedule is based on recommended best practice by National Archives and should be adhered to:
|Document description||Retention period|
|FOIA policy and procedures||10 years after being superseded|
|FOIA case files (including the initial requests, council response, consideration of application of exemptions and subsequent appeals)||3 years after creation|
|FOIA requests relating to documents scheduled for destruction||6 months after the last correspondence on the matter|
Requests to and from other local authorities
The legislation allows any person or organisation to make a freedom of information request including other Local Authorities. In practice this access regime is not commonly used between local authorities. In a spirit of co-operation local authorities will normally use less formal avenues to obtain information from each other.
Therefore, council officers should avoid wherever possible using the freedom of information access regime to procure information from other organisations and instead use a less formal route in the first instance.
Similarly, should council officers receive a request from another local authority they may wish to contact the requesting organisation to seek agreement for their request to be handled less formally, perhaps as a business as usual request. However, the requesting authority’s agreement is necessary. Unless they do withdraw their freedom of information request it must be handled under the freedom of information regime.
From the 1 September 2013, a significant change in the Freedom of Information Act 2000 relating to Datasets was implemented. This was put into effect by the introduction of Protection of Freedoms Act 2012. This new legislation amended sections 11 and 19 of the Freedom of Information Act, giving new rights to receive Datasets (a category of information that is defined in the new legislation) in a form capable of re-use (for example, CSV format). For the first time, the Act now gives users the right to re-use datasets, under the terms of a specified. The amendments also require public authorities to publish any requested datasets as part of their publication scheme, if it is considered appropriate.
The changes do not give new rights of access – they are concerned with format and the ability to re-use datasets, once the public authority has decided that no exemptions or other provisions (for example, costs, vexatious) in the legislation apply.
For further information on the new obligations including what the legislation defines as a dataset can be found in Appendix 4 below and also by referring to the Information Commissioner guidance on datasets.
Appendix 1 - Categories of requests where you should consult the Press Manager
The following illustrate examples of requests that should be referred to the Press Manager.
- Requests relating to council expenditure
- Requests relating to the number of children in care or receiving services from YOT/YOS/YISP
- Requests relating to elected members
- Requests relating to travel expenses
- Requests regarding any legal prosecution the council with council involvement past or present or future
- Requests relating to deceased staff or residents
- Requests relating to any audit or fraud investigations
- Requests relating to senior executive pay
- Requests relating to agency workers and/or their pay
- Requests relating to staff sickness absence
Appendix 2 - Re-use of public sector information and copyright
Unless otherwise stated, the London Borough of Enfield (LBE) owns the copyright in all material at www.enfield.gov.uk and any information contained in responses to request for information made under Freedom of Information or Environmental Information Regulations.
Subject to the following conditions, the LBE has no objection to organisations reusing its copyright-protected materials (the 'Materials') and reproducing them in their own publications, or on their internal computer networks. Organisations using the LBE’s materials must adhere to the following criteria:
- Any publication or internal network which incorporates the LBE Materials must include an acknowledgement of the source of such materials
- The Material must be clearly separated from any comment made on it by the organisation or others
- Readers of the Material must not be given the impression that the LBE is responsible for, or has in any way approved, the publication or network in which his Materials are reproduced
- The Materials may not be altered or amended unless such material is clearly marked as altered or amended by the organisation or others
- No fee may be charged by any organisation reproducing the LBE’s Materials in respect of reproducing Materials
- When reproducing the LBE's Materials, organisations must have regard to any qualifying statements or descriptions attached to the Materials, (for example, descriptions such as 'consultation document', are important as are statements concerning the audience at which the Material is directed). If the Material is reproduced in full, or substantial extracts are reproduced, any qualifying statements attached to the Material must be included.
- There is no charge for the reproduction of Materials made in accordance with these conditions
The Re-use of Public Sector Information Regulations 2005 provided a framework for deciding issues relating to the re-use of information held by public bodies. Subject to the conditions set out above, the LBE has no objection to organisations reproducing the Materials made available.
Where an organisation wishes to re-use the LBE’s Materials but the proposed re-use would contravene any of the conditions set out above, the organisation should contact the LBE’s Legal Services to determine whether the proposed re-use would be permitted and what, of any, additional conditions may apply. The application should be in writing, specifying name and address of the applicant, identifying the documents to be re-used and the purpose for re-use.
If an individual or organisation is unhappy with the manner in which an application for the reproduction or the re-use of the LBE’s Materials has been handled by the authority, a complaint should be made in writing to:
PO Box 63
Appendix 3 - Access to information working group
Internal review process
This process relates to the FOIA Internal Review Procedure agreed by the Access to Information Working Group at its meeting on 16 November 2010, updated for web contact.
In all cases where a Freedom of Information (FOI) response is made to a request received, the response must contain the following statement, or words to a similar effect:
- “If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. If so, you should email or write to me to ask for an internal review to be carried out. The review will be carried out by a senior manager within the council, who will advise you directly of the outcome of the review. If you are still dissatisfied, you may ask the Information Commissioner's Office to consider your complaint. Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to [Responding officer]:
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF or via Information Commisioner's Office.”
On receipt of a request for a review of the response, the original responding officer, referred to hereafter as the Responding Officer, should consider the detail of the review and re-evaluate the basis of the response as appropriate. In doing so, the Responding Officer may wish to take advice from the legal.
If the Responding Officer, on reflection considers that the request for the review is reasonable and that further disclosure is merited, they should respond accordingly.
If after deliberation the Responding Officer does not consider the grounds of the appeal to be reasonable, they should arrange for a senior manager (senior to the original responding officer) to undertake a review and is referred to hereafter as the Review Manager. The Responding Officer should pass the Review Manager all the relevant correspondence (the request for information, the response and any other communications relating to the request) as well as the disputed information.
The applicant should be given an estimate as soon as possible after the request for an appeal has been received, of the time the review is likely to take. The Reviewing Manager should aim to complete their review and respond within 20 working days. Where there is delay in the review the applicant should be informed and advised of the revised response time.
The reviewing manager may, if they feel it appropriate, request that the review response is considered by the Freedom of Information and Data Protection Working Group prior to being sent out.
Once the reviewing manager has completed the review they should respond as appropriate. If the appeal is upheld then a disclosure of the disputed information should be given to the applicant. However if the appeal is only partially upheld or if the original decision is maintained then a full explanation as possible should be provided to the applicant and any additional disclosure as appropriate.
If the review relates to a procedural matter and it was shown that the council did not follow its procedures an apology should be offered to the applicant. Steps should also be taken to ensure that the occurrence is not repeated.
The reviewing officer should send a copy of their response to the Responding Officer for their information.
Full details of all steps taken must be recorded (the reasoning and logic behind the response, and the steps taken to review) in lieu of any appeal to the Information Commissioner’s Office.
All requests for a review of a data protection issue, whether made by an individual or the Information Commissioner’s Office, should be passed to the Data Protection Officer within the Corporate IT Department.
Appendix 4 - Handling a request involving a dataset
The introduction of Protection of Freedoms Act 2012 on the statute book has amended the Freedom of Information Act 2000 (FOIA) to the effect that the council has further obligations when dealing with requests for information involving a 'Dataset' and you must be aware of these obligations when handling requests. These provisions will also impact on what information is published through the council's publication scheme. The new provision came into force on 1 September 2013. This fact sheet and the Q&A is designed to assist council officers understand these responsibilities and should be read in conjunction with the Freedom of Information Act Section 45 Code of Practice relating to Datasets and with the Information Commissioners guidance on handling information requests involving Datasets.
The change to FOIA is but a part of a wider Government initiative to increase transparency of public bodies and ensure public authorities proactively release data in a way that allows businesses, and other enterprises to re-use it for both non-commercial and commercial purposes.
Fundamentally the Protection of Freedoms Act, amends FOIA so that public authorities are obliged to release datasets in a re-usable electronic format.
So that the council complies with this new obligation it is important that officers dealing with request and also who publish council information have an appreciation of what exactly a Dataset is. This is because this new provision will only be applicable to information which meets the definition of a Dataset.
So what exactly constitutes a Dataset? A dataset is a collection of information held in electronic form where all or most of the information meets the following criteria:
- It has been obtained or recorded for the purpose of providing a public authority with information in connection with the provision of a service y or the carrying out of any other function
- It is factual information which:
- is not the product of interpretation or analysis other than calculation (ie it is the raw data) and
- is not an official statistic as defined by the Statistics and Registration Service Act 2007
- It remains in a form that (except for the purpose of forming part of the collection) has not been organised, adapted or otherwise materially altered since it was obtained or recorded
The last criterion is important to understand. It essentially means that any Dataset which have had some value added to them or which have been materially altered, by way of analysis, representation or application of some technical manipulation, would fall outside the legal definition.
Typical examples of a dataset could be:
- List of council owned assets
- Staff sickness statistics
- Balance sheet showing receipts and spend
- Demographic statistics of residents receiving a particular service
- Approval rating for council services or functions
- Organisation structure charts
The above list is no way exhaustive and is merely serves to indicate what types of information the definition will capture. It would not be feasible here to provide a definitive list of what information may constitute a Dataset because of the diversity of information that may be collected and requested. The officer should if in doubt seek advice either from their respective information co-ordinators or from Legal Services for an opinion about whether the information constitutes a Dataset.
Communication of information electronically in a re-usable form
The new obligation will mean that any request for information that constitutes a Dataset must be released in an electronic and re-usable form. Until the implementation of the new provision applicants have been able to state their preference as to whether the information is provided to them electronically or in manual form and as long as it was reasonable to do so the public authority were required to comply with that preference.
However the amendment will now mean that in future where a request is made for information that is held by a public authority which constitutes a dataset, or which forms part of a dataset, and the applicant requests that information be sent to them in an electronic form, then the public authority must, so far as is reasonably practicable, provide the information to the applicant in an electronic form that is capable of re-use. In effect this means that the information should be provided in a machine-readable form using open standards which permits unrestricted re-use and manipulation of the information. This will effectively prevent the council from providing such information in a format incapable of manipulation (for example, PDF format) but instead to provide the information in an open format (for example, Comma Separated Value or CSV format).
However it should be noted that this is obligation is qualified in that the council would only be required to provide the information in a re-usable format unless it was unreasonable to do so with regards to any technical or financial considerations. Although the expectation is that in the vast majority of cases the council will comply with this obligation.
Re-use of copyright works
As part of the new provision public authorities when communicating a Dataset to an applicant in response to an FOI request and all or part of the dataset contains a relevant copyright work, then a public authority must make the copyright work available for re-use in accordance with the terms of the specified license.
So what exactly is a 'relevant copyright work'? This is a legal term defined by the Copyright Designs and Patents Act 1998, and in this context relates to a product such as a report, collection of information or database that is created by the relevant copyright work owner (for example, the council). This ownership allows the owner to control how their product is re-used after dissemination to a third party. In the context of Freedom of Information request the existence of a relevant copyright work does not impact on whether the information is made available to the requestor (the availability issue depends on whether an exemption is available on which the council can rely on to withhold information) but instead on ability of the requestor to re-use the information once it is in their possession. What the new provision will do in the majority of cases is remove the re-use restrictions of what a third party (the information requestor) may do with that information once they have it.
Information captured by this provision must meet the following criteria:
- The person must have made a request for a dataset
- The dataset requested includes a ‘relevant copyright work’
- That the council is the only owner of the ‘relevant copyright work’ (in other words that it is not owned in whole or part by a third party)
- That the public authority is communicating the relevant copyright work to the requester under the FOIA (in other words it is not being withheld under one of the exemptions)
When providing a Dataset, in response to a request for information under FOIA, under the new provisions of the Act, the council must make that work available for re-use in accordance with the terms of one of the specified licences (see below). In practice when providing a Dataset in response to a request under FOIA reference will be required to the appropriate license. It is expected that the vast majority of cases the council will make use the UK Open Government Licence as most datasets should be available without a charge or restrictions. It is expected that only in a few exceptional cases will alternative licenses be used.
A description of the licenses that will be available for use in this context are described below:
- UK Open Government Licence: The Open Government Licence is the main licensing model for the UK Government. And it encourages the use and re-use of a wide range of public sector information. The Open Government Licence is a non-transactional open licence which enables use and re-use with virtually no restrictions. It permits use and re-use, including for commercial purposes, at no cost to the user/re-user. The Licence can be easily used by public authorities, for example, it only requires public authorities to link to the Open Government Licence which is hosted on The National Archives.
- Non-Commercial Government Licence: It is recognised, however, that the Open Government Licence will not be appropriate in all cases, for example, in circumstances where information may only be used for non-commercial purposes. As with the Open Government License above the license can be accessed through The National Archives - non-commercial government licence.
- Charged Licence: If re-use for commercial purposes which involves payment of a fee and/or royalties by the re-user is required, a transactional licence may be used. The licence uses standard licensing terms and forms part of the UK Government Licensing Framework and is available on The National Archives - charged licence (PDF).
Publication of datasets through the publication scheme
On disclosure of a Dataset in response to a FOIA request there is a new requirement that obliges the public authority to publish this information and keep it up to date in accordance with the publication scheme. Datasets that are published in this way should be in an electronic format that is capable of re-use and any relevant copyright work within it will have to be made available for re-use in accordance with the terms of the specified licence (referred to above) as in the case of Datasets made available in response to requests under FOIA.
These provisions only apply to Datasets which have been requested and do not extend to Datasets that the council may collect or hold but have not been subject to a formal request under FOIA.
There is an exception to the publication requirement and that is where the public authority is satisfied that it is not appropriate for the dataset to be published. This maybe because the information is of limited value or interest to the wider public.
As already referred to above, the new provisions make no changes to the statutory exemptions available to public authorities under Part II of FOIA to withhold information. In other words if the information requested involves a Dataset which is covered by an exemption then the council can still rely on the exemption to withhold the information and the new provisions do not then come into play. It is important to remember that the new provision outlined above have no consequence to the right of access available under FOIA. The changes relate only to the form in which the information is to be provided (in an open format capable of manipulation) and the facility for re-using the information by the requestor where it relates to information constituting a Dataset.
Similarly the new provision puts no onus on public authorities to create new information when none existed before. As with any other FOIA request the obligation is to information already in the possession of the public authority at the time the request is made.
Generally speaking the vast majority of information will be made under the open Government License which will allow for liberal re-use of the information without charge to the third party. However the legislation does potentially permit public authorities to use alternative licensing arrangements that could require the applicant to pay a fee. It should be remembered however that the payment in this case is for re-use and not access. It is important to stress that the council cannot refuse disclosure on the basis that it has not received the required fee for re-use where applicable.
The Secretary of State has issued regulations on the charging for re-use of information. These are contained in the Freedom of Information (Release of Datasets for Re-use) (Fees) Regulations 2013. Any fees that are charged in relation to reuse of information must be in accordance with these regulations. Alternatively, there is nothing to prevent a public authority to charge for re-use of information if existing legislation is available to permit this.
Officers should be aware that the new provisions amending the FOIA will be regulated by the Information Commissioner (ICO). Any complaints received from applicants about failure to comply with these new provisions outlined above must be handled under the internal review procedures in exactly the same way as standard FOIA complaints have been handled. The requestor if dissatisfied with the outcome of the internal review may seek recourse from the ICO.
These provisions only apply to requests falling under FOIA 2000 and therefore does not apply to information requests under Environmental Information Regulations (EIR) 2004.
Changes to Freedom Of Information Act 2000 – questions and answers
What has changed?
The change relate to the way we must comply with our obligations in providing certain kinds of information under the Freedom of Information Act (FOIA) 2000. Specifically it relates to information defined as a Dataset. The changes have no affect to information that does not constitute a Dataset.
How has this change come about?
The changes to FOIA 2000 were made law with the passing of the Protection of Freedoms Act (PoFA) 2012.
Why has this change come about?
This is but part of a wider government initiative to make information held by public authorities not only more transparent but to allow both commercial and non-commercial organisations to exploit publicly held information for the benefit of the wider economy.
What is a dataset?
It is important to understand what the term 'Dataset' means as the new provisions referred to in this document will only apply to information falling within the scope of the definition.
A dataset will have all the following attributes:
- Information that was collected in connection with the provision of a service or carrying out a function
- It is factual information (but not the product of interpretation or analysis, neither is it an official statistic)
- Has not been altered or manipulated since it was collected
What is an example of a dataset?
The legislation does not provide a definitive list but the kinds of information that may fall within the scope of the definition include:
- property postcodes
- list of council assets
- receipts and spend information
- resident satisfaction ratings
- number of disabled parking bays in a geographic district
When did the changes take effect?
1 September 2013.
What are the new obligations?
When providing information in response to a request under FOIA that meets the definition of a Dataset the information must be:
- Provided in a machine readable, open format (for example, CSV format)
- Information containing copyright works will require a specified license to be issued which sets out the conditions for the re-use of the information
Which re-use license should be used?
Depends on the dataset. However in most cases the council will release information using the Open Government License which allows re-use of the information without restriction. However there may be exceptional circumstances when an alternative license is appropriate.
What is a copyright works?
This relates to information where the copyright is owned wholly or in part with a third party. Where the works is owned wholly by the council then the council can provide the information with a specified license (for example, Open Government License).
However if the copyright to the information is co-owned or owned exclusively by a third party then permission would need to be sought from the third party in regards to any intentions for re-use of that information (Remember this is permission about re-use and not disclosure!)
Do the changes effect information that are exempt under FOIA?
No. If requested information is exempt under one of the statutory exemption (for example, Section 40 – Personal Information) then the information can still be withheld by citing the relevant exemptions. The changes only apply to information we intend to disclose or publish.
Do these changes impact on the publication scheme and the way we pro-actively publish information?
Yes. Whenever you disclose information that involves a Dataset this information should be also published in accordance with the publication scheme that the council adheres to. This means not only must it be published but we undertake to keep it up to date and accessible to any member of the public who requires access to it.
Is there any exception to proactively publishing a dataset?
We may decide not to publish a dataset where we consider that it is unnecessary because it is of limited value or interest to a wider audience.
Do the changes apply to environmental information?
If you have any questions about the new provisions contact Legal Services.
Author - Complaints Team
Owner - Information and Data Governance Board
Version - 1.9
Reviewer - Information and Data Governance Board
Classification - Official
Issue status - Final
Date of first issue - February 2012
Date of latest re-issue - 30.05.2023
Date approved by IGB - 19.05.2023
Date of next review - 30.04.2024