Freedom of Information Act 2000

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Freedom of Information Act 2000

• Sarah Hanson
• Partner
• CMS Cameron McKenna LLP
• E-mail Sarah.Hanson_at_cms-cmck.com
• Tel [phone]

2
Freedom of Information Act 2000

• Fully in force from January 2005
• applies retrospectively
• Applies to public authorities
• listed in Schedule 1
• designated by the Secretary of State and
• companies that are publicly owned
• Act is regulated by the Information Commissioner

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Public Authorities

• Advisory bodies covered by FOI requests include
• Medicines and Healthcare products Regulatory
  Agency
• Medicines Commission
• Committee on Safety of Medicines
• Advisory Board on registration of homeopathic
  products
• British Pharmacopoeia Commission
• Veterinary Products Committee

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Codes of Practice

• The Access Code
• The Records Management Code
• Operate alongside the Act
• Responsibility of Secretary of State to keep
  codes current

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Provision of Information

• Information recorded in any form
• Publication scheme
• Information must be disclosed if
• held by a public authority (except on behalf of
  another person) or
• held by another person on behalf of the authority
• Held at the time when request is received

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Provision of Information cont.

• No restriction on purpose of application
• Request
• must be in writing (can be received by email)
• state the name of applicant and address for
  correspondence
• describe the information requested
• Public authority must provide that information
  within 20 working days

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Duty to Disclose

• Paul Harper v Information Commissioner
• Cannot claim no longer hold info because
  employees have deleted it from computers
• P Quinn v the Information Commissioner
• Where PA cannot locate info still regarded as
  holding it
• but may refuse disclosure on the grounds that
  cost in doing so would exceed appropriate limit

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Clarification/Fee

• Public authority may request further information
  where the request is not clear
• Requests that cost under 450 are free (except
  for incidental costs, photocopying etc)
• If over 450 can refuse to answer or elect to
  charge a fee for providing information within
  regulations set by Secretary of State
• Fee to be paid in advance
• Consultation of amended FOI fees regulations

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Advice and assistance

• Public authority must provide advice and
  assistance as far as reasonable to applicant
• Access Code provides guidance on what is
  reasonable
• advised of progress
• advising potential applicant of rights
• assisting applicant to focus request
• advising on alternative availability
• Should try to give effect to applicants
  preference as to format in which information is
  provided
• if not reasonably practicable,notify applicant of
  reasons

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Exemptions

• Absolute exemptions (info need not be
  disclosed)
• Qualified exemptions (public interest test)
• in all the circumstances does the public interest
  in maintaining exclusion outweigh the public
  interest in disclosing?
• presumption in the public interest to disclose
• Exemption can apply to whole or parts of
  information

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Exemption - Guidance

• Likely to be in public interest if
• facilitates transparency / accountability of
  decisions
• understand / challenge decisions affecting
  applicant
• assist understanding / debate of issues of day
• facilitate transparency / accountability of
  spending public money
• bring to light information about public health
  and safety
• Authority will take account of a number of
  factors
• fact that information is technical, complex and
  may be misunderstood may not be a reason to
  withhold disclosure
• whilst the fact that information may be
  misleading if it is incomplete could be a reason
  to withhold disclosure

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Exemptions

• ABSOLUTE
• Available by other means
• Security services
• Court records
• Parliamentary privilege
• Provided in confidence
• Prohibited from disclosure by law or regulation
• Personal data

• QUALIFIED
• Future publication
• National security/ defence etc.
• Law enforcement /proceedings
• Audit / Govt policy
• Royal household
• Prejudice effective conduct of public affairs
• Environmental / Health Safety
• Legal prof privilege
• Commercial interests
• Personal data

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Refusal of a request

• Where authority refuses request because of
  exemption, authority must
• within 20 days notify applicant that request
  refused
• specify exemption relied on
• state (if not apparent) why exemption applies
• If authority refuses a request
• notification must include complaints policy (if
  any) and
• explain right of applicant to apply to
  Information Commissioner for decision

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Freedom of Information Act 2000 the MHRA

• Publication Scheme
• Classes include
• organisational structures
• corporate publications
• guidance notes and application forms
• vigilance schemes
• RAMA database

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Memorandum of Understanding

• Common understanding of what will be disclosed,
  withheld, or disclosed only after consultation
  with third parties
• not legally binding
• application of public interest test may result in
  different outcome to those set out in the
  Memorandum and
• working document subject to review
• Signatories
• MHRA (medicines division)
• Veterinary Medicines Directorate
• Association of British Pharmaceutical Industry
• Proprietary Association of Great Britain

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Traffic Light Document

• Part 2 of the Memorandum of Understanding sets
  out likely disclosure responses using a traffic
  light system
• G already published routinely
• G disclosure on demand without consultation
• A disclosure on demand after consultation
  with relevant third party (subject
  to editing out of commercial
  confidential information)
• R anticipated that disclosure will not take
  place as information will be
  confidential, commercially
  sensitive or information which would
  otherwise be exempt from disclosure

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Draft MHRA VMD Guidance

• June 2007 MHRA VMD prepared
• Guidance on the disclosure of types of Human and
  Veterinary Medicines Information held by the
  Human and Veterinary Regulatory Authorities
• Due to replace MOU which
• had not adequately reflected the greater spirit
  of openness and commitment to disclosure

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Exemptions to Disclosure

• The most relevant exemptions to disclosure are
• information provided in confidence
• prejudice to commercial interests
• personal information
• information intended for future publication
• investigation and proceedings conducted by public
  authorities

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Prejudice to Effective Conduct of Public Affairs
(Qualified)

• Information held by a public authority exempt
  where reasonable opinion of qualified person
• would / likely to inhibit
• free and frank provision of advice, or
• free and frank exchange of views for the purposes
  of deliberation, or
• would otherwise prejudice or likely to prejudice
  effective conduct of public authority

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MHRA - rofecoxib

• Request for information re safety and efficacy of
  a medicine
• Including reviews/analyses/reports and results of
  clinical trials
• MHRA disclosed some information however cited the
  prejudice to effective conduct of public
  affairs exemption (amongst others) with respect
  to the rest of the information
• Minister responsible believed exemption had been
  properly applied

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Health and Safety (Qualified)

• Information is exempt where disclosure would, or
  would be likely to
• endanger the physical or mental health of any
  individual, or
• endanger the safety of any individual
• May apply to documents submitted by MHRA by a
  company that (directly or indirectly) link named
  individuals with animal experimentation

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MHRA - rofecoxib

• In case above MHRA also argued that the health
  and safety of individuals at risk from animal
  rights activists
• those directly and indirectly involved
• also employees at named organisations may be at
  risk
• Public interest test considered and favoured
  maintaining the exemption

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MHRA rofecoxib public interest test

• Against disclosure
• Increase risk of violence / intimidation
• Connected persons at risk
• Public interest is in ensuring MHRA has acted
  within its rules and regulations not in knowing
  individual names

• Favouring disclosure
• Regulation of medicines matter of significant
  public interest
• Increase scrutiny, openness and transparency
• Only a few animal rights activists would carry
  out violence

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Personal Data Exemption (Qualified and Absolute)
s.40

• Where applicant is the data subject access is
  governed by DPA 1998
• Where applicant is not the data subject and where
  disclosure would
• contravene data protection principles absolute
  exemption
• cause damage or distress qualified exemption

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Information provided in confidence (Absolute)
s.41

• Exemption applies if information obtained by
• authority from any person and disclosure
• constitutes an actionable breach of confidence
• Confidentiality provision in contract can be
  implied if not explicit
• Nature of information important not its label
  can change over time

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Newcastle upon Tyne NHS Trust August 2006

• Refusal to disclose external report prepared
  following criticism of expert evidence
• Report was obtained from any other person in
  that it was obtained from the independent panel
  of experts
• IC considered whether the report would have the
  necessary quality of confidence
• Information
• could not be said to be trivial
• was not in the public domain and
• subject to a confidentiality clause
• Prior written approval of advisors needed
  unanimously declined
• Held that release of information would be an
  actionable breach

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Epsom St Hellier NHS Trust October 2006

• Mother requested all information concerning my
  daughter including health records
• Medical records had the necessary quality of
  confidence implicitly created by nature of
  doctor/patient relationship
• If breach would affect the conscience of the
  defendant then information could be restrained
  even where it would not damage the confider
• Duty of confidence can survive the death of the
  person
• Act designed to be applicant blind so will not
  take into account unique circumstances of case
• Held exemption applied to medical records and
  chunks of the legal file

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Practical Tips

• Take steps to protect information when it is
  submitted
• redact personal data
• keep confidential and non-confidential material
  separate
• Set out circumstances where and reasons why the
  information is confidential, and for how long
• Personal Data / Confidential Information willl
  not remain so indefinitely
• Protective markings however, serve only a
  primary indication and cannot always be relied
  upon

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Commercial Interests (Qualified) - s.43

• Trade secrets exempt
• competitive edge
• economic value from not being generally known
• Would / would be likely to prejudice commercial
  interest of any person (including public
  authority)
• real and significant risk of prejudice
• does not apply to historical records more
  than 30 years old

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Is information commercially sensitive?

• Guidance by IC sets out questions to be
  considered
• Used for the purpose of a trade?
• Obvious / made clear that releasing would cause
  harm / benefit competitor?
• Is knowledge restricted to a limited group?
• How easy for competitors to discover / reproduce
  information?
• Will apply where disclosure would have a
  significant impact on revenue/ability to secure
  finance
• not if would simply cause embarrassment

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MHRA January 2007

• Subject access request made for document
  concerning allegations made in request of the
  quality of analysis performed by a specified
  individual
• Relevant document split into two sections diary
  of investigation and results of the investigation
• Qualified exemption need to show that release
  would harm someones commercial interest and that
  exemption outweighs public interest
• Commercial interest exemption
• must be a significant risk of prejudice
• passage of time helped to demonstrate low risk of
  prejudice
• Held that public interest in disclosure
  outweighed that against disclosure

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Tendering for Public Authority Contracts

• All communication during tendering process may be
  subject to disclosure
• Info that would be sensitive during tendering
  process may no longer be so once contracts are
  signed
• Public Interest favouring disclosure
• Increased understanding of decision making
  process.
• May encourage competition
• Increased transparency and accountability of
  spending of public money

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Practical Tips

• Clearly identify what info is commercially
  sensitive and for what period it will remain so
• Annex sensitive info in a schedule / appendix to
  main document
• Dont make blanket claims of commercially
  sensitive
• Agree all confidential information to be returned
  once no longer required by public authority
• Use confidentiality clauses where appropriate

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Information available by other means (Absolute)

• Information must be reasonably accessible to
  public by other means
• even if only available on payment of a fee
• Includes information available under a
  publication scheme

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Information intended for future publication
(Qualified)

• Must be reasonable to withhold information until
  that date
• Intention to publish must be firm e.g. where info
  already prepared for publication
• The date of publication need not be determined
• Drafts may be covered where final version is
  intended for publication
• Also applies to info held by a public authority
  that another person intends to publish

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Pesticides Safety Directorate

• Request for lists of safety studies carried out
  on two named pesticide ingredients
• Notifiers submit to PSD prescribed info - PSD
  then generates draft report to be placed on EFSA
  website within 6 weeks
• full report is later placed on website may be
  several years later
• Complainant requested this info in advance of its
  publication on website
• Held reasonable to withhold disclosure

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PSD - Information intended for future publication
public interest test

• Public Interest favouring disclosure
• Delay was over and above 6 weeks
• Earlier disclosure would facilitate work

• Public Interest against disclosure
• Undermine the approval process
• Info was not yet available to EFSA

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Practical Tips

• The sooner the time for intended publication the
  more likely the exemption is to be upheld
• Provide list of planned publications e.g. on
  website
• Provide a timetable containing intended dates of
  publication

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Legal Professional Privilege (Qualified)

• All communication with professional legal advisor
  is confidential and will not be revealed without
  consent
• no need to demonstrate potential for prejudice
• even trivial information may be covered by
  exemption
• Qualified exemption therefore necessary to
  consider public interest test

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Public Interest Considerations Guidance issued
by IC

• Timing of disclosure
• Has litigation ended or is ongoing / threatened?
• Policy Advice
• Public interest in promoting public debate and
  increasing accountability
• Access to justice and right to fair trial
• Strong arguments against disclosure where access
  to justice may be prejudiced

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MHRA January 2007

• Complainant requested
• all info between September 01 and March 02
  relating to an individual and MCA, and
• in full all info regarding the formal report
• MHRA
• under first request, provided 10 documents with
  personal data redacted
• withheld all further documents requested citing
  legal professional privilege exemption
• Held exemption applied

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MHRA January 2007 cont

• Going against established principle of
  confidentiality would discourage clients from
  seeking legal advice
• Exemption is essential for the proper
  administration of justice
• free and frank exchanges facilitate information
  sharing leading to better advice
• Ability to seek legal advice without fear of
  future disclosure results in improved quality of
  decision making

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Practical Tips

• Where in-house counsel giving advice
• Try to separate legal and non-legal matters
• Try to separate within matters information that
  can be disclosed from information that cannot

44
Review Process

• If information is withheld
• Internal review by senior agency official not
  previously involved with the request
• Such internal review procedure shall be detailed
  in the refusal notice
• Information Commissioner will review where no /
  insufficient internal review

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Sanctions

• IC assesses good practice, compliance with Act
  and Codes of Practice
• Failure to conform to codes of practice -
  Practice recommendation
• Failure to comply with obligations under FOIA -
  Enforcement notice
• Following investigation by IC - Decision notice
  identifies steps required or compliance
• If IC requires further information to facilitate
  investigation - Information notice
• IC can certify to court non-compliance with
  notices - contempt of court

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European Medicines Agency

• Public access to information held by EU
  institutions and agencies is governed by
  Regulation (EC) No 1049/2001
• Broadly similar to provisions in FOIA
• Aims to promote citizen participation in decision
  making process and increase legitimacy and
  accountability
• Applies to all documents held by an EU
  institution (or Agency created by an EU
  Institution)
• Similar exemptions as under FOI Act - also
  utilises Public Interest Test
• EU institutions must consult third party where
  unclear whether exemption applies

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Dangers

• Competitors/press can use FOI Act to obtain
  information
• Accidental disclosure of confidential / personal
  information
• Avoid sanctions for non-compliance by seeking
  advice from IC on unclear matters

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Protection

• Educate staff
• Mark submissions Private Confidential
• Submit documents in two versions where possible
• Written acknowledgement from MHRA
• Do not ignore a notification from the MHRA

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Useful Websites

• www.ico.gov.uk
• www.foi.gov.uk

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• Thank you for your attention
• Sarah Hanson
• Partner
• CMS Cameron McKenna LLP
• E-mail Sarah.Hanson_at_cms-cmck.com
• Tel [phone]