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CLERK'S BRIEFING NOTE 10-12

REQUESTS FOR INFORMATION

1. BACKGROUND

Under the Freedom of Information Act 2000 (FOIA), there is a duty on public authorities generally, including parish councils, to provide information to members of the public on request.

Under the European Communities Act 1972, there are Environmental Information Regulations 2004 (EIR). Requests for information about a piece of land, or energy use may need to be handled under the EIR rather than FOIA and there may be situations where a request is handled partly under one regime, and partly under the other. The EIR broadly refers to requests for information covering subjects such as the:

  • atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas
  • energy, noise, radiation, waste, emissions, discharges
  • environmental policies, legislation, plans, programmes, agreements
  • state of human health and safety.

This is in addition to any other statutory right to obtain information which members of the public or electors may have.

On receipt of a request for any information, the Clerk must decide whether to consider the request under the Freedom of Information Act or under the Environmental Information Regulations. Failure to deal with the request under the correct access regime would put the Council in breach of Regulation 14(3) of the EIR. According to the EIR Code of Practice, para 13, public authorities are encouraged to contact the Information Commissioner's Office for advice and assistance about their duties under the Regulations.

 

2. FREEDOM OF INFORMATION ACT 2000

The principal features of the Freedom of Information Act 2000 in regard to local authorities are

  • a general right of access to the public of information held by public authorities subject to certain conditions and exemptions;
  • a requirement for public authorities to consider the exercise of any discretion which they may have to disclose information, notwithstanding that an exemption applies to the information, having regard to all the circumstances of the case, and the desirability of
    • informing the applicant whether it holds information, and
    • communicating information to him, wherever the public interest in disclosure outweighs the public interest in maintaining the exemption in question;
  • a duty on every public authority to adopt and maintain a scheme which relates to the publication of information by the authority and is approved by the Information Commissioner and to publish information in accordance with the scheme. An authority may adopt a model scheme which has been prepared by the Commissioner, or others.

    Sedlescombe Parish Council adopted the Model Publication Scheme on 01/01/09 following approval by the Parish Council on 11/11/08 (C08/09.76.3.1). Information is, as far as possible, kept up to date and can easily be viewed on the www.sedlescombe.org.uk (left hand column under Parish Council Publication Scheme).

Requests for FOI information from the public should be sent in writing to the Clerk to the Parish Council (Mrs P Raymond, sedlescombe@freezone.co.uk or by post to Woodland Cottage, Chapel Hill, Sedlescombe TN33 0QX).

The request must state the name and address of the applicant and describe the information required.

A maximum fee of £450 can be levied but it must only cover costs and should not include staff time.

The information requested must be provided within 20 working days (excluding weekends and bank holidays) after receipt of the request or, if a fee is levied, after payment of the fee

Where a request for information is refused, the authority must state the reason. This will usually be that an exemption applies or that the request is vexatious or has already been met. The main exemptions are:

  • the information is accessible by other means than a request under the Act (eg the statutory right to inspect the minutes and accounts of local councils);
  • information dealing with national security, defence, international relations, criminal investigations, law enforcement, certain audit functions, Parliamentary privilege, formulation of government policy, personal information which is covered by the Data Protection Act 1998. This is not an exhaustive list.

Complaints that a request for information has not been dealt with properly, or at all, are handled by the Information Commissioner, who may issue an enforcement notice if satisfied that the Act has been breached. There is provision for an appeal against a decision by the Commissioner to a Tribunal.

Where an authority has failed to comply with a valid enforcement notice, the Commissioner may take the matter to the High Court, which may deal with the authority as if it had committed a contempt of court. The main penalties for a corporate body being in contempt of court are a fine and sequestration of property.

 

3. ENVIRONMENTAL INFORMATION REGULATIONS

The principal features of the Environmental Information Regulations are in regard not only to public authorities but also public utilities, certain public/private partnerships and private companies, such as those in the water, waste, transport and energy sectors:

  • a general principle in making information available to the public and a duty to disseminate environmental information it holds in an electronic form that is easily accessible (ie via a website);
  • need to adopt a complaints procedure (mandatory in these regulations);
  • 20-day time limit to respond, although this can be extended to 40 + days when the information sought is complex and voluminous;
  • need to offer advice and assistance to requestors;
  • requests for environmental information can be verbal, rather than having to be in writing;
  • information held by a public authority includes holding information on behalf of any other person;
  • Any charges imposed must be reasonable and must not include any profit.


4. SOURCE OF INFORMATION

Article entitled "How to handle a request for information" in the March 2011 edition of "The Clerk.

Article entitled "Transparency and the right to know" in the September 2009 edition of Clerks and Councils Direct.

Information Commissioner's website.

 

5. DATA PROTECTION ACT 1998

Pauline J Raymond is registered as the Parish Council's Data Controller with the Information Commissioner's Office under the Data Protection Act 1998. The Act provides a right of access to individuals in respect of personal data of which they are the subject.. Upon making a written request and paying the requisite fee, amongst other things an individual is entitled to have communicated to him in intelligible form - 1) information which forms any personal data and 2) any information available to the date controller as to the source of the data.

The Clerk will carefully consider all requests from data subjects for information held by the Council and to what extent it is possible to communicate the information sought without disclosing any third party information, such as an e-mail address, and will give as much information as possible to the data subject without revealing the identity of the third party.

If it is not possible to communicate the information sought without disclosing any third party information, the Clerk will ask the third party for consent to disclose. If this is given, the information will be disclosed. If it is refused, or it is not possible to obtain for some other reason, the Clerk will consider whether it is reasonable to disclose without the third party's consent. If the Clerk decides not to disclose, the data subject will be informed of the reason his/her request has not been met.

See Clerk's Briefing Note "Sedlescombe Parish Council Policy re Management of Information" 2009.

By law, the following eight principles must be adhered to:

  1. The data must be fairly and lawfully processed.
  2. The data must be processed for limited purposes.
  3. The data must be adequate, relevant and not excessive.
  4. The data must be accurate.
  5. The data must not be kept for longer than is necessary.
  6. The data must be processed in line with the data owner's rights.
  7. The data must be secure.
  8. The data must not be transferred to countries without adequate protection.


Clerk/RFO, Sedlescombe Parish Council

20/04/12