THE RIGHT TO KNOW
Citizens who want to know about any aspect of their libraries should be able to get all the help they need from library staff – failing that, by contacting their head of service. However, the Freedom of Information Act 2000 (FOIA) may have to be used.
This Act applies only to public bodies. So, for instance, if your council has outsourced its library service to an outside body you may not be able to get answers direct from them. But, however the service is run, the council remains responsible for it under the 1964 Public Libraries & Museums Act, so you should be able to pursue matters with the council.
THE PUBLIC INTEREST
The FOIA gives a legal right of access to non-personal information held by or on behalf of public authorities. The fact that Parliament enacted FOIA is proof that it considers there is a general public interest in providing access to information held by public bodies.
There is no general public interest in withholding information – apart from specified exemptions. And many of these are ‘qualified’ – the authority must still release the information unless the public interest in withholding the information outweighs the public interest in disclosing it. The public interest test has a presumption in favour of disclosure.
Factors that might be considered include information that:
- concerns an issue affecting a large number of people;
- sheds light on how public funds are being spent;
- deals with a matter that is a subject of public controversy;
- would help people make more informed choices on important matters.
The Information Commissioner’s Office (see below) publishes general guidance on how the public interest test is applied, plus individual notes on how specific exemptions are applied.
REQUESTING INFORMATION
The authority must proactively make information that it holds available to the public (eg, policies and procedures, statistics, financial information).
It must produce a Publication Scheme, laying out all the published information that it holds, and how to access it. This can be obtained from its website, or by contacting the Town Hall.
It also has a legal duty to provide information on request. To make a request, write (or email – but it must be in writing), describing the information you want. If you need it in a particular form (eg, a copy of a letter, or in electronic form) say so.
If you are unsure what to say, or if the council is unable to identify the information you request, it has a duty to help you clarify your request. So it may be a good idea to speak to the council’s designated Information Officer before you start.
The council should comply within 20 working days. If it wants extra time to decide if it is in the public interest to disclose the information, it must tell you in writing how long, and why.
There should be no charge. But there is no duty to supply the information if the cost of doing so exceeds the ‘appropriate limit’ (for local councils it is roughly equivalent to one employee spending 24 hours on the task).
There may be a charge for copying and postage, but this should be reasonable (around 10p per A4 copy).
TIPS ON HOW TO MAKE REQUEST
The Information Commissioner (ICO) is ‘the UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals’.
There is useful advice with helpful lists of do’s and don’ts at the Office of the Information Commissioner..
ABSOLUTE EXEMPTIONS.
Councils will not supply on request information available by other means – if it is on the website, or in a public register – unless you can argue that for some reason you are unable to access it in the way they suggest.
Other absolute exemptions cover security matters, certain court and tribunal documents, and personal information . The latter is often cited incorrectly. It covers only ‘personal data’ (ie biographical in a significant sense and with the person as its focus). Thus, for instance, if the information is the name of a functionary who was at a meeting, or who wrote a specific email, you could argue that this is not personal as defined – it merely refers to his/her involvement as an employee.
Genuinely personal data should be withheld if disclosure would be ‘unfair’ to the data subject. This is a complex balancing exercise, taking into account all the circumstances of the case.
QUALIFIED EXEMPTIONS
Relevant ‘qualified exemptions’ include information prejudicial to law enforcement/crime detection, audit functions, health and safety.
But the onus is on the authority to show that such damage would be significantly likely (though not beyond reasonable doubt). Even then, it must still show that the public interest test favours withholding.
An exemption frequently relied on by local authorities is where a qualified person reasonably considers that the giving of information will prejudice the conduct of public affairs. The ICO’s guidance on this exemption (under section 36 of FOIA) is very useful.
You stand a better chance of getting documents which show how a decision was reached after it has been reached, than by trying to get them during the decision-making process.
An authority can also withhold information if it can show its disclosure would prejudice its own commercial interests, or those of anyone else (eg, trade secrets, information on commercial negotiations). Prejudice to commercial interest normally declines over time.
A council cannot disclose information provided by other parties, if this would constitute an actionable breach of confidence. The test for an ‘actionable breach of confidence’ includes a public interest test.
An authority will always claim exemption from disclosing legal advice. This is an extremely powerful exemption. Although it is subject to the public interest test, it is normally upheld.
IF YOU ARE NOT SATISFIED
If a public authority refuses a request under FOIA, it must provide a refusal notice, giving reasons. Or you may not be satisfied with the way your request has been answered.
Either way, you can complain and ask for an internal review. Before doing so, you should study the relevant ICO guidance note.
If this gets you nowhere, you have a right to complain to the ICO. Beyond that there’s a right of appeal to First Tier and Upper Tribunals, though legal advice should be sought.
