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With Freedom of Information legislation due to come into full effect in 2005, John Davies provides some valuable advice on how public sector bodies can prepare to meet its demands.

The issue of access to Government information has been much in the news recently. The ease with which Government departments and public agencies can be required to disclose information has been compared unfavourably with the situation in the US.

We in the UK have had our own Freedom of Information legislation on the statute book since 2000, although the main subject access provisions will not come into full effect until January 2005. This legislation will bring in a basic right for any person to request any "public authority" to tell him or her whether information of a specified description is held by that authority and, if it is, to be sent a copy of the information concerned.

What is a "public authority"?
The following are deemed to be "public authorities" and subject to the requirements of the legislation:

• bodies which are specifically named in Schedule 1 to the 2000 Act (and the equivalent schedule to the Freedom of Information (Scotland) Act 2002): these include government departments, county, district and parish councils, national park authorities, NHS bodies such as health authorities, primary care trusts and community health councils, and a wide range of bodies such as the Arts Council, the Bank of England, the British Council and the General Medical Council
• bodies which are named in orders made under the primary legislation. To date, only one such order has been made - the Freedom of Information (Additional Public Authorities) Order 2002 (SI 2002/2623), which adds to the list of public authorities bodies such as the Strategic Rail Authority and the Criminal Injuries Compensation Authority
• companies which are wholly owned either by the Crown or by other public authorities.

Under the Act, where a public authority receives a valid, written request for information, then that information must be communicated to the person asking for it "promptly" and in any event within 20 working days of its receipt. The authority should also, as far as is practicable, comply with any preference expressed by the applicant as regards the means of providing the information.

Exemptions
There are a large number of exemptions available from the basic obligation to comply with requests for information. These include:

• where the authority estimates that the cost of complying would exceed an "appropriate limit" for compliance costs identified by separate regulations
• where the request is vexatious or the authority has previously complied with a similar request from that same person
• where the information asked for is already reasonably accessible to the applicant
• where the information asked for is intended for future publication
• where disclosure of the information would be likely to prejudice legal proceedings
• where the disclosure of the information would be prejudicial to the economic interests of the UK or any devolved Parliament or Assembly
• where the information requested is held by a government department (or the Welsh Assembly or Scottish Parliament) and relates to, inter alia, the formulation of government policy or Ministerial communications.

Where information is classed as "exempt information" under Part II of the 2000 Act, authorities may be able to refuse to comply with requests made under it.

Authorities are exempt from providing information covered by Part II where a particular type of information is said to benefit from "absolute exemption", e.g. information which is already accessible to the public, or where authorities decide that the public interest in not complying outweighs the public interest in making the disclosure. In some cases the Act states expressly that the basic duty for an authority to confirm or deny that the requested information is held does not apply. Where this is the case, exemption from that particular duty applies whenever the type of information confers "absolute exemption" and also if the authority considers that the public interest in not disclosing outweighs the public interest in making the disclosure.

The Act required the Government to issue a Code of Practice to provide guidance to public authorities on complying with their responsibilities under the Act. Even though the Act is not yet fully in force, the Code of Practice has been issued and authorities are encouraged to conform with its recommendations for the purposes of preparing to become compliant with the act in due course. The Code is available from the web site of the Lord Chancellor's office, at www.lcd.gov.uk.

John Davies - Head of Business Law, ACCA

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