Freedom of Information Policy
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Introduction
The Freedom of Information Act 2000 (FoIA) provides any individual with the right to request any recorded information held by a public authority.
The FoIA places a legal obligation on the OPCC to inform the person making the request whether the information requested is held and, if so, to provide a copy of the requested information unless it is subject to an exemption.
The FoIA makes it a criminal offence to alter, deface, block, erase, destroy or conceal any record held by the OPCC, with the intention of preventing disclosure to all or part of the information that an applicant is entitled to.
Penalties can be imposed on both the OPCC and staff for non-compliance with the FoIA.
All requests must be in writing and the OPCC legally has 20 working days in which to respond to a request for information.
Section 19 of the FoIA also makes it a duty for every public authority to adopt and maintain a scheme relating to the publication of information which is approved by the Information Commissioner. The scheme must specify the classes of information as well as the manner and frequency of publication (see section 6).
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Scope
This policy applies to all OPCC staff involved in recording or holding information that is covered by the FoIA.
Within the context of the FoIA, the term ‘information’ means every piece of information held by the OPCC, whether paper or electronic. It is not limited to official documents and covers, for example, draft documents, agendas, minutes, emails, diaries, images, audio and even rough handwritten notes. This policy applies to all information held by the OPCC.
Every member of staff has a legal duty to preserve formal records of their official activities which must be accurate, adequately named and indexed for easy retrieval or publication.
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Other regimes
The FoIA covers rights of access to and requests for non-personal data. Data Protection legislation (including the General Data Protection Regulation) covers the rights individuals have in respect of their personal data, including rights of access. Personal information is exempt under section 40 of the FoIA and the processing of personal data will continue to be regulated by applicable data protection legislation.
The Environmental Information Regulations (“EIRs”) deal specifically with information relating to any decisions, activities and policy formulation that may have an impact on the environment. Environmental information is exempt information under section 39 of the FoIA. Requests for environmental information will be handled in an analogous manner to requests for information made under the FoIA. However, it should be noted that the EIRs do not specify that requests must be in writing. This means that telephone requests on environmental matters will also be valid (although in practice it is advisable to make a written record of any verbal requests received).
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Managing Requests
- Specific roles and responsibilities
|
Chief Executive |
· The Chief Executive is accountable for having policies and procedures in place to support best practice, effective management, service delivery, management of associated risks and meet national legislation and/or requirements in relation to and including the FoIA. · Holds overall responsibility for compliance with the FoIA. |
|
Head of Policy Coordination & Research |
· Has delegated responsibility for compliance with the FoIA. · Oversees all requests and reviews draft responses. · Line manages the Office & Data Protection Manager. |
|
Office & Data Protection Manager |
· Responsible for compliance with the FoIA and processing all requests. · Provides advice and assistance to persons making requests. · Monitors internal compliance and provides advice and training on the FoIA. · Has functional responsibility for records management. · Ensures systems are in place for record creation, keeping and maintenance. · Ensures relevant searches are undertaken and responsible for drafting responses. · Ensures the response is issued to the applicant within the timescale laid down by the FoIA. |
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Staff |
Responsible for: · Creating and maintaining records which are accurate, appropriate and retrievable. · Ensuring that requests are passed to Correspondence for logging as quickly as possible. · Conducting searches for information held in a timely manner when requested by the Office & Data Protection Manager. · Ensuring that disclosures are not made outside of the defined process so that inappropriate disclosures are avoided. · Ensuring that documents which fall within the requirements of the Publication Scheme are provided to the Communications Manager for publication. |
- Recognising FoIA requests
Key Points:
- Requests must be received in permanent form, such as in writing, email or an online form (and can be made via social media).
- The applicant can be an individual, a company or a pre-existing and identifiable organisation or group.
- They must provide their name and correspondence address. A request made under a pseudonym is invalid.
- They must include sufficient information to enable the OPCC to identify the information requested.
- A request can be submitted to any member of staff; it does not have to be to a specific person or contact point.
- Any requests received by staff must be passed to Correspondence for logging without undue delay.
- The request does not have to make any direct reference to FoIA or be the sole or main theme of the applicant’s correspondence.
- Fees and refusal of requests
An applicant may ask for any information that is held by the OPCC. However, this does not mean the OPCC is always obliged to provide it. In some cases, there will be a good reason why it should not make public some or all of the information requested.
The OPCC can refuse an entire request under the following circumstances:
- It would cost too much or take too much staff time to deal with the request.
- The request is vexatious.
- The request repeats a previous request from the same person, unless a reasonable time period has elapsed.
Where possible, the OPCC will not charge a fee for complying with requests. However, it reserves the right to refuse to respond to a request for information where it estimates the cost to comply would exceed £450. When estimating, the OPCC will take into account the cost of the following activities:
- determining whether it holds the information;
- finding the requested information, or records containing the information;
- retrieving the information or records; and
- extracting the requested information from records.
The £450 is calculated to be 18 hours of staff time based on an hourly rate of £25 per hour, which is provided for by Regulation 4 of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. It excludes the time needed to decide whether exemptions apply, to redact exempt information, or to carry out the public interest test.
If the OPCC determines that a fee will be charged, a fee notice will be issued to the applicant in accordance with section 9 of the FoIA.
If the OPCC refuses a request, it will provide the applicant with a notice setting out the reasons for the refusal.
- Exemptions
The FoIA also contains a number of exemptions that allow the OPCC to withhold information from an applicant. Some exemptions relate to a particular type of information, and other exemptions are based on the harm that would arise or would be likely to arise from disclosure and require a public interest test.
There is also an exemption for personal data if releasing it would be contrary to the General Data Protection Regulation or the Data Protection Act 2018.
- Response times
Under the FoIA all requests must be responded to promptly and within 20 working days, counting the first working day after receipt as the first day (unless clarification has been sought from the applicant or an extension is sought under section 10(3) of the FoIA).
The clock starts when a request is received by the OPCC, consequently it must be logged by Correspondence and processed by the Office & Data Protection Manager without delay.
Extending the response time
The OPCC can extend the time to respond by up to an additional 20 working days if there is a need for more time to consider the public interest test.
- Provision of information
The OPCC will seek to provide the information as requested, subject to the application of any exemptions under the FoIA.
In responding to requests for information, the OPCC will have regard to any preferences expressed by the applicant as to the form of communication. Where it is not reasonably practicable to comply with any preference expressed, the OPCC will notify the applicant of the reasons for this.
- Advice and assistance
The OPCC has a duty, so far as it is reasonable to do so, to give advice and assistance to anyone who has made a request or is considering making one.
- Consultation with Third Parties
The OPCC may consult with a third party if:
- the views of that third party may assist in determining whether an exemption under the FoIA applies to the information requested; and/or
- where the views of the third party may assist in determining where the public interest lies under section 2 of the FoIA.
- Scope of requests
The FoIA covers all recorded information held by the OPCC. It is not limited to official documents and covers, for example, drafts, emails and notes. The OPCC does not record telephone conversations or retain voicemail recordings.
- Monitoring compliance
On a monthly basis, the Chief Executive will meet with the Office & Data Protection Manager and Head of Policy Coordination & Research to review OPCC compliance with the FoIA. The meeting will focus on the timeliness of responses and requests in progress or outstanding, with the provision of data facilitating discussion and where appropriate, further action.
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Training Implications
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Staff requiring training |
Frequency of training |
Length of training |
Delivery method |
Training delivered by whom |
Where are records held? |
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All |
Upon commencement of employment & annually thereafter |
1 hour |
Face to face |
Office & Data Protection Manager |
OPCC HR Records
OPCC Training Record Status List |
|
All |
Upon commencement of employment & as specified thereafter |
1 hour |
Online (Mandatory training) |
Kent Police |
OPCC HR Records
OPCC Training Record Status List |
Upon completion of mandatory online training, staff must provide a copy of the certificate to the Office & Data Protection Manager for their record to be updated and filing purposes.
The Chief Executive will occasionally review the OPCC Training Record Status List to ensure all staff are completing the necessary training.
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The OPCC Publication Scheme
Under the FoIA, all public authorities are obliged to adopt and maintain a Publication Scheme specifying:
- the classes of information that they publish or intend to publish; and
- how the information is or will be published.
The OPCC Publication Scheme is based upon the model scheme prepared and approved by the Information Commissioner. It can be found on our website, or alternatively a copy can be requested by emailing [email protected].
The Publication Scheme requires public authorities to publish a list of all FoIA requests received and the responses provided, known as a FoI disclosure log. The OPCC FoI disclosure logs provide a summary of this information, with copies of full responses available upon request. Personal details such as names and addresses (postal or email) will always be redacted to protect privacy.
Following the issuing of a response to a FoIA request that is not covered by the Publication Scheme, consideration will be given as to whether it should become part of the publication scheme. The OPCC will also periodically review the Publication Scheme and make amendments and updates.
Policy owner: Chief Executive
Contact point: Head of Policy Co-ordination & Research
Publication date: 01/08/2023
Review date: 01/08/2025
Appendix A: Process for responding to FoIA Requests
The FoIA, Section 8, makes it a duty for a public authority to have an efficient process for responding to requests. The Head of Policy Coordination & Research will be responsible for ensuring the OPCC has a process in place to manage all requests.
Valid requests
- Must be received in permanent form, such as in writing or email.
- The applicant can be an individual, a company or a pre-existing and identifiable organisation or group.
- Must contain the name and correspondence address for the applicant. If the OPCC cannot identify the applicant from the name provided, the request will be considered invalid.
- Must include sufficient information to enable the OPCC to identify the information requested.
- Can be made to any member of staff; it does not have to be to a specific person or contact point.
- Do not have to make any direct reference to FoIA or be the sole or main theme of the applicant’s correspondence.
- A request does not have to be made on a predefined form, however there is an online form available on the OPCC website for people to use.
If an applicant is unable to make a request in writing, for example due to a disability, the OPCC will provide whatever assistance it can to enable them to make their request.
Despite the validity of a request, the OPCC may consider it appropriate to deal with it outside the FoIA where:
- the requested information can be sent quickly and easily and is better dealt with as a business-as-usual enquiry;
- the request is for environmental information and it should be dealt with under the EIRs.
However, if a request explicitly refers to Freedom of Information or any of the following factors apply, the OPCC will generally deal with it under the FoIA:
- the information requested cannot be provided straight away.
- the applicant makes it clear they expect a response under the FoIA.
- there may be a refusal to provide some (or all) of the requested information to the applicant.
The OPCC will consider requests made through whatdotheyknow.com as valid, provided the applicant supplies their real name and describes the information concerned.
Process on receipt
All FoIA requests must be sent to Correspondence for logging and an acknowledgement sent without undue delay. Correspondence will forward to the Office & Data Protection Manager for processing and copy to the Chief Executive, Head of Policy Coordination & Research, Head of Standards & Regulation and Communications Manager.
The FoIA, Section 10, makes it a duty for a public authority to process all requests for information within 20 working days.
However, if the applicant is asked for further information (clarification) to assist with processing the request, the 20 working day deadline only starts when sufficient clarification has been received. Any communications to clarify a request will be undertaken without unnecessary delay.
Where an applicant requests access to their personal data under the FoIA, it will be logged and processed as such. However, the OPCC will exempt its release under Section 40 and when notifying the applicant, also provide guidance on how to submit a Subject Access Request under the Data Protection Act.
Transferring requests to another public authority
Where the OPCC does not hold the requested information but believes another public authority may be able to assist, the applicant will be informed that the information is not held and advised to redirect their request. Where the OPCC holds contact details for the other public authority, they will be provided.
The OPCC will not transfer a request to another public authority.
Fees
The FoIA, section 9, enables a public authority to charge an applicant for making information available.
It is the aim of the OPCC to make as much information as possible available free of charge. However, there may be occasions when the OPCC needs to levy a charge for information, which will reflect the cost to the OPCC of providing the information.
The OPCC will not charge a fee for dealing with a request, in line with the National Fees FoIA regulations, where the cost of the work to respond is estimated to be less than £450. Where the cost is in excess of this amount, the OPCC will correspond with the applicant to try and reduce the request (and therefore the cost) below the threshold. If agreement cannot be reached in such circumstances the OPCC may decide not to respond to the request.
In circumstances whereby the scope of the request needs to be reduced to remain within the fees regulations, the clock measuring the 20 working days will be paused between the date the applicant is notified and the date the clarification is received. If this period is in excess of 3 months, the OPCC will consider the request to have been withdrawn by the applicant and it will be closed.
Clarification of requests
The FoIA, Section 16, requires a public authority to provide advice and assistance to a person making a request. The OPCC will take all reasonable steps to advise anyone whose request does not fulfil the criteria as to what is required by the OPCC to progress their request.
Where the OPCC receives a request which is incompatible with the manner in which it holds information, contact will be made with the applicant to provide advice and guidance.
Vexatious or repeated requests
The OPCC is under no obligation to comply with a request which is vexatious or repeated.
A vexatious request is one which is intended to be annoying or disruptive and likely to undermine the credibility of the freedom of information system and/or, divert resources away from more deserving requests and public business. When assessing whether a request is vexatious, the OPCC will take into account context and history including, but not limited to, the identity of the applicant and previous contact with them.
A repeat request is one which is identical or substantially similar to one previously submitted by the same applicant, unless a reasonable time period has elapsed.
Should an applicant make ‘vexatious’ or ‘repeated requests’ for information, the OPCC will advise the applicant in writing that it will not fulfil the request under Section 14 of the FoIA. Unless a reasonable time period has elapsed, multiple requests from an applicant will be aggregated (and dealt with as a single request) if they relate to a similar subject.
When responding, the OPCC will inform the applicant why the request is considered ‘vexatious’ or ‘repeated’. The OPCC will also indicate what recourse the applicant has if they are unhappy with the decision.
Exemptions
Part II of the FoIA provides a number of restrictions or exemptions to disclosure.
Exemptions exist to protect information that should not be disclosed, for example because disclosing it would be harmful to another person or it would be against the public interest.
The exemptions apply to the information. This may mean that they only apply to part of the information requested, or that different exemptions need to be applied to different sections of a document.
Some exemptions are ‘absolute’, for example, if the information is personal data. If an absolute exemption applies, the OPCC can automatically withhold releasing the information. In some cases it also removes the duty for the OPCC to confirm or deny whether the information requested is held.
However, most exemptions are ‘qualified’ and require the OPCC to apply the public interest test in deciding whether to release the information. In considering the public interest, the OPCC will take into account:
- whether the public interest in maintaining the exclusion of the duty to confirm or deny that information is held outweighs the public interest in disclosing whether the OPCC holds the information; and/or
- whether the public interest in withholding information outweighs the public interest in releasing it.
Where the public interest test is relevant, the OPCC will apply it separately to each piece of potentially exempt information.
Where a document cannot be released in its entirety, the OPCC will ‘redact’ to edit out those elements for which an exemption is claimed and endeavour to release what it is able to, in as intelligible a format as possible.
The Office & Data Protection Manager will be responsible for facilitating responses to requests including decision making about exemptions and the public interest by engaging staff involved in the areas the information relates to. Each request will be decided on a case-by-case basis.
The possible exemptions are listed at Appendix B.
Locating the information requested
The Office & Data Protection Manager will be responsible for ensuring that adequate and properly directed searches are undertaken to identify the information requested.
They will coordinate activity across the OPCC to identify documentation held in either paper or electronic format, and where appropriate liaise with staff directly, specifying a response timeframe. All staff will respond promptly and within the specified timeframe.
Where the OPCC has the ‘building blocks’ necessary to generate the information requested and no particular skills or expertise is required to put it together, the information will be considered as held.
Review
Prior to the response being sent to the applicant, the Head of Policy Coordination & Research (or a member of the Senior Management Team) will review and approve a draft. This acts as a double check of the content and that any information being released does not contain personal data or other sensitive details not intended to be disclosed.
Responding to a request
When the OPCC receives a valid request it will respond within 20 working days.
Section 1 of the FoIA places two duties on the OPCC:
- Unless exemptions apply, the first is to confirm or deny whether the information requested is held.
- The second is to disclose information that has been confirmed as being held.
- Section 17 of the FoIA requires that where exemptions are relied upon, the applicant is provided with a notice which:
- states that fact;
- specifies the exemption(s) in question; and
- states (if that would not otherwise be apparent) why the exemption applies.
Within the 20 working days, the Office & Data Protection Manager will:
- Identify what information is held and whether any exemption applies (in full or part) to the information;
- Inform the applicant if the information is not held;
- Advise of any exemption that applies (in full or part);
- Inform the applicant of any fee to be charged;
- Provide any information not covered by an exemption having regard to any preferences expressed by the applicant (provided any applicable fee has been received);
- Otherwise advise the applicant if the request cannot be processed within 20 working days, giving an indication of the likely timescale for a decision to be reached;
- Inform the applicant of how to request an internal review, and appeal to the Information Commissioner’s Office.
Where information is not held, the OPCC will seek to provide appropriate advice and assistance to the applicant. In cases where the OPCC believes another public authority may be able to assist, where known, it will provide contact details and advise the applicant to redirect their request.
Internal Review process
If an applicant is unhappy with:
- the way in which their request has been handled;
- is dissatisfied with the decision made regarding disclosure or non-disclosure of information; and/or
- is of the opinion that the OPCC is not compliant with its Publication Scheme,
they can request an internal review within 40 working days of receiving the OPCC’s response to their request.
The Chief Executive will be the internal reviewer and decision maker unless they are unable to due to circumstances such as, however not limited to, absence, illness or prior involvement. If the Chief Executive is unable to undertake the review, an alternative internal reviewer will be appointed.
The internal reviewer will consider the manner in which the request was dealt with and compliance with the FoIA. They will make an independent decision based on the evidence and are empowered to either uphold, overturn or modify the original decision.
The applicant will be notified as to the outcome within a reasonable timescale. The OPCC aims to deal with internal reviews within 20 working days. If it becomes clear at any stage of the internal review that the OPCC will not be able to meet this target, the applicant will be notified.
Complaining to the Information Commissioner’s Office (ICO)
The ICO is the UK's independent body set up to promote access to official information.
If the applicant remains dissatisfied with the decision made as a result of the internal review procedure, under section 50 of the FoIA, they can contact the Information Commissioner to apply for a decision as to whether the request has been dealt with in accordance with the requirements of FoIA.
The ICO address is as follows:
Wycliffe House,
Water Lane,
Wilmslow,
Cheshire
SK9 5AF
Alternatively, guidance on how to apply for a decision can be found on their website.
Appendix B: FoIA Exemptions
|
Section |
Exemption description |
Type |
|
21 |
Information already reasonably accessible |
Absolute |
|
22 |
Information intended for future publication |
Qualified |
|
23 |
Information supplied by or relating to security bodies |
Absolute |
|
24 |
Safeguard national security |
Qualified |
|
26 |
Defence/armed forces |
Qualified |
|
27 |
International relations |
Qualified |
|
28 |
Relations within the UK |
Qualified |
|
29 |
Economy |
Qualified |
|
30 |
Investigations |
Qualified |
|
31 |
Law enforcement |
Qualified |
|
32 |
Court records |
Absolute |
|
33 |
Audit functions |
Qualified |
|
34 |
Parliamentary privilege |
Absolute |
|
35 |
Government policy |
Qualified |
|
36 |
Conduct of public affairs |
Qualified |
|
37 |
Communications with the royal family and the granting of honours |
Qualified |
|
38 |
Health and safety |
Qualified |
|
39 |
Environmental information |
Qualified |
|
40 |
Personal Information of the requester |
Absolute |
|
41 |
Information provided in confidence |
Absolute |
|
42 |
Legal professional privilege |
Qualified |
|
43 |
Trade secrets and prejudice to commercial interests |
Qualified |
|
44 |
Prohibitions on disclosure |
Absolute |
Absolute – if a request falls into this category, there is no requirement to consider the public interest test.
Qualified – if a request falls into this category, a public interest test must be considered and applied.