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Freedom of Information Act 2000 - New Guidance
Index
1) Introduction
2) Implementation
3) Publication Schemes
4) Identification of staff
5) Model publication schemes
6) Access
7) Fees
8) Code of practice
9) Third party data
10) QoF data
11) Prescribing data
12) Withholding information
13) Exemptions
14) Enforcing implementation
15) Appeals Process
16) Further information
Footnote - April 2006
Introduction
The
Freedom of Information Act applies to all NHS bodies, including hospitals, as well as to doctors, dentists, pharmacists and opticians. It specifically includes any person providing general medical or personal medical services under the National Health Service Act.
The Freedom of Information Act 2000 and the Data Protection Act 1998 are intended to operate in tandem. Requests for access to personal information will be dealt
with under the provisions of the Data Protection Act, while requests for access to other sorts of information will be dealt with under the Freedom of Information Act.
All disclosures are protected by;
- The Freedom of Information Act exemptions
- The Data Protection Act, which protects personal data from any third party disclosure without consent
- The Human Rights Act which requires that PCTs and Strategic Health Authorities respect the privacy of individuals when responding to an access request
- The common law on confidentiality.
A doctor’s disclosures are also subject to the duties of a GMC registered doctor;
- to make the care of patients their first concern
- respect and protect confidential information
- respect patients dignity and privacy
- work with colleagues in the way that best serves patients’ interest
- to be prepared to justify their actions to patients and colleagues
The Information Commissioner is responsible for implementing the Act and reports directly to Parliament.
The Act aims to promote a culture of openness and accountability by providing people with rights of access to information held by public authorities.
This is intended to facilitate a better understanding of how public authorities carry out their duties, why they make the decisions they do and how they spend
public money.
2) Implementation
Since 31st October 2003 all NHS bodies have been required to have a
publication scheme that has received prior approval from the Information Commissioner. The Act was implemented in full on 1st January 2005
when the general right of access to information held by public authorities came into force. General access requests may apply to all recorded information including;
- paper files
- computer files
- internal e-mails
- audio & video recordings,
- brochures & photographs
The Act is fully retrospective.
3) Publication Schemes
A public authority must adopt and maintain a publication scheme, approved by the Information Commissioner, setting out all the classes of
information it routinely publishes, the manner in which this information is published, how it may be obtained and the details of any fee.
Information must be published in accordance with the scheme, which must be reviewed from time to time, taking into account the public
interest in allowing access to information and the reasons for decisions made by the authority.
Any removal, or addition, of a class of information would remove the approval of the scheme, as would any reorganisation or merger which
would create an entirely new public body.
GPs cannot be included in another public authority's scheme, but can administer their schemes jointly eg by publishing them on the same
website or having the same telephone contact point.
The Commissioner believes it would be helpful to publish the Publication Scheme on the internet, but this is not a requirement.
The Act does not authorise a public authority to charge for information for which it would not or could not otherwise levy a charge.
4) Identification of Staff
Unless there is a legal obligation to do so, public authorities should only publish information about staff if:
- it is not intrusive
- publication would be expected
- publication is reasonable,
- workers have been informed in advance
- reasonable objections have been respected
- the information does not identify an individual, unless he or she has consented
- it is up to date and accurate.
Details of named contact staff need not be included in a Publication Scheme, but the job titles of the person with ultimate responsibility for
the Publication Scheme and the person who acts as the co-ordinator should be included to assist with any queries.
5) Model publication schemes
These have been developed for GPs by the NHS FOI Project Board and approved by the Information Commissioner for a period of four years
from 31st October 2003.
The Information Commissioner will assume that GPs have adopted the model publication scheme in the absence of any other communication.
Any public body that chose to produce an individual publication scheme, was required to have submitted this to the Information Commissioner's
office by 31st August 2003 in order to meet the statutory deadline of the 31st October.
Guidance on the completion of the model publication scheme for
general practitioners
Model publication scheme for general practices
Model publication schemes for Health Sector bodies
6) Access
- The Freedom of Information Act extends the right of access under the Data Protection Act to all types of personal or non-personal information.
- A request for information must be made in writing, (this includes e-mails) and must contain details of the applicant and the information sought.
- The applicant has the right:
- to be told whether the information is held by the public authority
- to receive the information as a copy or summary, or by inspecting a record
- The act is fully retrospective and an access request may apply to any information recorded before and/or after the Act was passed.
- The public authority must generally respond within 20 working days.
- If consideration of the public interest is necessary before disclosing the data, the disclosure must occur within a reasonable time.
- Access to some or all information may be delayed up to 3 months until the estimated & permitted fee is paid or the request lapses
- The applicant must be informed within 20 days of the reason and probable length of any delay.
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7) Fees
A fee may be charged under
The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004
- Most access requests are expected to be free,
- You may not charge for time taken to;
- locate, retrieve, collate or extract information, unless estimated cost of doing so would exceed the appropriate limit
of £450 for GPs (based on £25/hour)
- write covering letter explaining that the information is being provided
- You may charge a ‘reasonable’ uncapped fee for incurred costs;
- Informing applicant that you hold the information
- Summarising information
- Putting information into preferred format (unless required by Disability Discrimination Act)
- Translation into foreign language (unless impracticable)
- Cost of photocopying or printing (suggested this would not exceed 10p per sheet)
- Postage or other forms of communication
- You should inform the applicant of the fee before incurring the costs
8) Code of practice
Under section 45, the Lord Chancellor is required to issue a Code of Practice providing good practice guidance to public authorities in
connection with their duty to provide access to information under Part I of the Act – the "Access Code".
Under section 46, the Lord Chancellor is required to issue a Code of Practice providing good practice guidance to public authorities in
connection with the keeping, management and destruction of their records – the "Records Management Code".
Code of Practice on the discharge of public authorities' functions
under Part I of the Freedom of Information Act 2000
9) Third Party Data
Sometimes a request for information relates to persons, other than the applicant and the authority, who may be adversely affected by the disclosure.
In relation to personal data, the Data Protection Act requires third party data to be excluded, unless consent to disclosure has been obtained.
In relation to all other data, the exemptions in the Freedom of Information Act provide some third party protection eg;
- A disclosure that would constitute an actionable breach of confidence is an absolute exemption under the FOIA.
- A disclosure that could harm the commercial interests of a third party is a relative exemption. This data may be withheld unless
the public interest in disclosure outweighs the commercial harm.
The Code of Practice recommends direct and individual consultation to determine whether or not an exemption applies.
The code of practice states “where a public authority proposes to disclose information relating to third parties, or information which is
likely to affect their interests, reasonable steps should, where appropriate, be taken to give them advance notice, or failing that, to draw it to their attention afterwards.”
If information must be disclosed, the code of practice suggests that a third party may be consulted about whether additional explanatory material or
advice should be given to the applicant.
This advice may refer to any restrictions (eg copyright restrictions) which may exist relating to the subsequent use of the information disclosed.
If information to be disclosed relates to, or may affect a number of third parties, the public body may consider consulting with a representative
organisation or a representative sample of the third parties in question.
10) QoF data
This contentious area has been the subject of much discussion and legal advice has been sought.
QoF data and prescribing data in which GPs are identified may be exempt from disclosure.
- Since a partnership is in English law a group of individuals and not a corporate body, practice data may relate to each partner as an
individual. In this situation the data would be classified as personal data, which falls under the Data Protection Act. All processing of
such data must conform to the requirement of the Data Protection Act and consent to disclosure would be a legal requirement.
- All other data would be subject to the Freedom of Information Act and may be exempt from disclosure;
- if it was provided to the PCT in strict confidence for specific and essential NHS purposes, such as corporate or clinical
governance, in which case disclosure may constitute an actionable breach of confidence.
- if disclosure would harm the commercial interests of the practice and the public interest in disclosure is not outweighed
by the commercial damage that disclosure could cause.
In a situation like this where data may possibly be exempt, the Code of Practice places a clear obligation upon PCTs before disclosure to consult
with each individual GP, a GP representative body, such as the GPC, or a representative group of individual GPs.
A third party that believes a disclosure would be illegal could then seek legal advice in order to try to prevent disclosure.
The decision to disclose the data rests with the public body that holds the data.
If the public body believes that a valid exemption may exist then it should inform the applicant that legal advice is being sought before disclosure or
may advise that an exemption does indeed exist.
If not satisfied that this is the case the applicant may make a formal complaint through the complaints procedure of the public body and if not
satisfied with the findings may seek an adjudication by the Information Commissioner.
If a third party believes a public body disclosure to have been illegal a legal remedy may be possible at that stage.
However, the GPC forwarded the following update
from NHS Employers and the NHS Confederation
and on 7/2/05 forwarded specific advice from the GPC negotiators that they believed a general policy of non-disclosure of QOF could portray the profession as unwilling to give
clear data on the use of public funds and services delivered to patients.
The GPC negotiators will try to ensure that any QOF data disclosed is qualified and explained in context. Their policy has, however, been
formulated on their assumption that there is no breach of any other legislation, contract or common law in releasing the information in the first place.
Code of practice - IV Consultation with Third Parties
11) Prescribing data
In Scotland information on prescribing anti-psychotics was released to a commercial company under the Freedom of Information Act. Information
relating to single-handed practices was not released for fear it would breach patient confidentiality. The Prescription Pricing Authority (PPA) in England refused to comply with the request.
We believe that the applicant was a leading global market research company selling services to the pharmaceutical and electronics industries.
Services include facilitating research into competitors, identifying business opportunities and the analysis of drug and pharmaceutical company sales.
In the USA, most FOI request are not initiated by campaigners or journalists to serve the public interest, but by companies interested in
gaining a commercial advantage.
Very few patients would be aware that their personal medical data is being processed, without their knowledge, for commercial gain. Very few
practices would realise that their commercial or financial interests are being put at risk for this purpose.
12) Withholding information
Requested information should in general be disclosed, unless there is an over-riding reason to withhold it.
If in doubt about any specific disclosure check with;
- LMC
- medical defence organisation
- practice solicitor
- Information Commissioner
- BMA
If a public body is fairly certain that information is exempt;
- best practice is to withhold and await a decision notice from the Information Commissioner
Information may be withheld if;
- it is a ‘vexatious’* request
- it is a repeated request for the same or very similar data within an ‘unreasonable’* period of time
- the cost of locating, retrieving & extracting the information would exceed the ‘appropriate limit’. The appropriate limit for GPs is
£450, but the limit for most other public bodies is £600.
- the public body cannot understand the request
- the information is available in the publication scheme
- the information is available elsewhere (eg Department of Health or PCT website)
- the public body is already intending to publish the information
NB * the terms ‘vexatious’ and ‘unreasonable’ are not defined.
In addition – a public body need not provide information if;
- the same or similar request is made by a number of people who appear to be acting together
&
- these requests are received within 60 consecutive working days
&
- the total estimated cost of all the requests is calculated to exceed the ‘appropriate limit’ of £450 or £600.
13) Exemptions
23 categories of information may be exempt from disclosure.
- Exemptions may relate to national security, law enforcement, commercial interests, and personal data.
- Public authorities are not required to release information to which any of the exemptions apply.
- Exemptions apply if the release of the information would prejudice the purpose to which the exemption relates, or if the public interest
in withholding the information outweighs the public interest in releasing it.
- Only specific information to which an exemption applies can be withheld and the rest of the information must be released.
- There is no need to confirm, deny or disclose such information
There are 8 absolute & 15 qualified exemptions
Absolute exemptions include;
- personal data - regulated by the Data Protection Act
- data which is available by other means
- data held in confidence that may not be breached
- data relating to national security, court records or parliamentary privilege, data that would be prejudicial to the conduct of public
affairs, data where disclosure is prohibited by laws or courts
Qualified exemptions, where the public interest in withholding
information outweighs the public interest in disclosure, and includes;
- commercial interests of public body or third party
- legal privilege
14) Enforcing implementation
The Information Commissioner is responsible for enforcing implementation of the Data Protection and the Freedom of Infomation Acts.
In the event of non-compliance by a public body the Information Commissioner is likely to rely on education and advice to achieve
compliance by issuing a written 'practice recommendation' in the first instance.
On receipt of a complaint he may;
- serve a Decision Notice & written Practice Recommendation
- serve an Enforcement Notice advising on steps to be taken within a specified period
- initiate contempt of court proceedings if the GP fails to comply
with an enforcement notice. This may result in the maximum penalty of an unlimited fine or imprisonment!
15) Appeals Process
The 1997 document
Your Right to Know - The Government's proposals for a Freedom of Information Act regarded it as essential to have an
independent review and appeal mechanism, that was readily available, freely accessible, quick to use and capable of resolving complaints in weeks, not months. The need for such appeals was considered most likely
in the areas of personal privacy, commercial confidentiality, or when the information requested was supplied in confidence by the third party.
An appeals process has therefore been included within the Freedom of Information Act.
Appeal to the Information Commissioner
If an applicant is not satisfied with a public body’s decision to withhold information the applicant should;
- Make a complaint through the organisation’s appeals procedure
- If not satisfied with the outcome of the complaints procedure he or she can appeal to the Information Commissioner to review the decision.
- If the Information Commissioner agrees with the applicant, the organisation can be compelled to release the information.
- If an applicant is unhappy with the decision of the Information Commissioner, he or she can appeal to the Information Tribunal
which has the power to overturn decisions made by the Information Commissioner.
- A public body may also appeal to the Information Tribunal if they believe the Information Commissioner has order disclosure which
they believe should not be disclosed.
16) Further information
Information Commissioners Website
Dept of Constitutional affairs
Department of Constitutional Affairs guidance
The Freedom of Information Act 2000 Regulations
Government White Paper Your Right to Know
NHS Freedom of Information Website
Dr FOI’s advice – NHS
GPC Freedom of Information Act - FAQs (Updated)
Exemptions Guidance
Footnote April 2006
The Information Commissioner has decided that current publication schemes will last for two years. There is, therefore, no need for
practices to rewrite or resubmit their publication schemes for approval in October 2006.
Practices are, however, required to keep their publication schemes up to date and consistent with the model scheme that was originally approved
for the purpose. Any significant deletion or variation from this approved scheme should be notified to the Information Commissioner.
CED 01/02/05 (Updated 22/02/05, 01/06/05, 29/11/05, 24/04/06)
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