Freedom of Information Acts

The Freedom of Information Act 2000 (FOIA) which applies to England, Wales and Northern Ireland, and the Freedom of Information (Scotland) Act 2002 (FOISA) both deal with access to official information. Scotland has its own statute because freedom of information is a devolved matter, however essentially the two Acts are very similar.

Why do I need to know about freedom of information?

You as a researcher or data custodian need to know about the freedom of information legislation for two reasons:

  1. As a researcher or data custodian, if you are working on behalf of a public authority, you may have a request to access information made to you.
  2. As a researcher you may be able to make a request under one of the Acts in order to access data you wish to use in your research project.

The right to access

The Acts provide that on receipt of an application for information under one of the Acts a public authority must tell the applicant whether it holds the requested information and, if it does, it must provide it within 20 working days. However, if one of the exemptions under the Acts applies, if the request is vexatious or similar to a previous request, or if complying with the request exceeds an appropriate cost limit, the public authority does not have to confirm the existence of the information or provide it.

Bodies covered by the Acts

Freedom of information requests can be made to any public body. Importantly for you as a health researcher this includes health boards, hospitals and doctor’s surgeries. For a list of public sector bodies covered by the Acts please see here.

Exemptions

There is some information which public authorities do not have to release. These are set out in an exhaustive list of exemptions which can be found in part II of the FOIA and part II of the FOISA. The exemptions can be divided into absolute exemptions and qualified exemptions.

Absolute exemptions

Absolute exemptions are exemptions which apply without being subject to a public interest test. The absolute exemptions are: information reasonably accessible to the applicant by other means (FOIA s21, FOISA s25); information contained in court records (FOIA s32, FOISA s37); personal information (FOIA s40, FOISA s38); information provided in confidence (FOIA s41, FOISA s36(2), and  information of which there are prohibitions on disclosure (FOIA s44, FOISA 26).

The personal information exemption links freedom of information with the data protection regime, as for the exemption to apply the data must be personal data under the DPA and a data protection principle must be breached.  Additional guidance on the personal information exemption can be found here.

The exemption for information provided in confidence links freedom of information with the common law of breach of confidence. This exemption is therefore more complex than the other absolute exemptions as it necessarily incorporates a public interest test. Additional guidance on the information provided in confidence exemption can be found here.

Qualified exemptions

Qualified exemptions are exemptions which are subject to a public interest test. For additional guidance on the public interest test in the context of freedom of information please click here.

The qualified exemptions can be divided into two categories: class-based and prejudice-based exemptions.

Class-based qualified exemptions cover entire classes of information for which harm is presupposed if disclosed. The class-based exemptions are: information which is intended for future publication (FOIA s22, FOISA s27); investigations (FOIA s30, FOISA s34) and information in which there is a commercial interest, e.g. trade secrets (FOIA s43(1), FOISA s33).

Prejudice-based qualified exemptions apply in cases where disclosure of the information is likely to cause prejudice. Under the FOISA the prejudice suffered must be ‘substantial’. The prejudice-based exemptions are  information which is likely to prejudice the economy (FOIA s29, FOISA s33); law enforcement (FOIA s31, FOISA s35); public audit (FOIA s33, FOISA s40); health and safety (FOIA s38, FOISA s39); legal professional privilege (FOIA s42, FOISA s36(1)), and commercial interests (FOIA s42(2), FOISA s33(1)(b)). Additional guidance on the prejudice-based exemptions can be found here.

Return to top of page