Freedom of Information KILO

Induction Day

By the end of the day, you should know…

What is the Freedom Of Information Act and how it should be used.

Our Information objectives.

What is a KILO?

Who are DACU?

How do the two work together?

Key terms: Round robin, TMM, PIT, NCND.

Module 1 – Intro to FOI

Module 1 – Intro to FOI

Background

• Passed in 2000 and came into operation in 2005.

• The FOIA gives any person a general legal right of access to any and all recorded information which is held by a public authority.

• (1) Any person making a request for information to a public authority is entitled –– (a) To be informed in writing by the public authority whether it

holds information of the description specified in the request, and

– (b) if that is the case, to have that information communicated to him.

• The Ministry of Justice holds policy responsibility for the FOIA and Lord McNally is the cross-Whitehall FOI champion.

It can have a major impact on the headlines…

Module 1 – Intro to FOI

What is a KILO? “Knowledge and Information Liaison Officers”

Module 1 – Intro to FOI

• For drafting and issuing responses to requests for information relating to your business area. You must ensure these responses are:

* Compliant with the relevant legislation (FOI, DPA or EIR) * Issued within the statutory deadline – 20 working days for FOI and EIR, 40 calendar days for DPA

• Responses are drafted to a consistently high standard, including applying the correct exemption(s) where appropriate.

• Providing an excellent level of customer service to requesters, including acknowledging requests, dealing with any queries promptly.

• Processing and issuing the majority of your requests independently and without oversight or clearance from the central disclosure team. However we will still continue to provide you with case-specific advice on the most sensitive, high profile and complex cases .

• These will be set out in the revised KILO manual and SLA which you will have access to.

Module 1 – Intro to FOI

• Supporting KILOs to enable you to fulfil your responsibilities.

• Providing guidance, advice and training to equip you to answer requests for information.

• Responsible for ensuring high profile and sensitive requests are well handled.

• Responsible for monitoring the MoJ’s overall performance in answering requests for information, including reporting statistics on timeliness and compliance with the legislation.

• Working with you and your business areas to identify training needs.

• Maintaining the KILO network and ensure full coverage across the department.

• However, we are not responsible for answering requests ourselves, nor are we responsible for deciding to release or withhold information.

• Compliance reviews.

• Reporting to SCS & publish statistics on timeliness.

What is DACU and what are our responsibilities

What are our objectives?

Module 1 – Intro to FOI

Quick and easy access to the right information.

To make our FOI and DP compliance the best in class in Whitehall.

To meet the cross-Whitehall and Departmental target of 90% answered within 20 working days.

Module 1 – Intro to FOI

Please refer to process handout

Module 1 – Intro to FOI

Support from DACUNon Trigger

• DACU does not provide advice and assistance on non-trigger cases. These cases, which at the point of allocation are not deemed overly complex according to the sensitivity criteria, will be managed by KILOs independently of DACU.

• KILOs will use their knowledge learned in this training, and resources available to them: KILOmanual; online guidance; Huddle; to draft responses.

• Once cleared by their G5 KILOs, will issue without involvement by DACU. Trigger

• DACU will provide advice and assistance for Trigger cases, which are more complex and/or sensitive.

• DACU will help the KILO agree an approach to the response and will clear the response once it has been cleared locally.

Module 2 – What is an FOI request?

Module 2 – What is an FOI request?

Is it a valid request? FOI requests must…

- Be in writing

- Have clear contact details

Module 2 – What is an FOI request?

Freedom of Information requests

Treat Official/Ministerial correspondence

Requesting recorded information

Anything else!

Request for data Question about data

Concrete Subjective

e.g. Could I have a copy of your policy on…?

e.g. What is your policy on…?

Deadline of 20 working days to log and respond

Deadline of 20 working days for Ministerial and Treat Official correspondence

Case Studies

- Have a look at the case studies and decide in groups whether they should be treat as FOI or TO.

- 10 minutes to discuss, then feedback.

Module 2 – What is an FOI request?

What should we do if a request is not clear?

- Must be clear what they are asking for.

- Must be a request for recorded info – NOT advice or opinion.

- We can go back and ask for more information (Clarification AKA - TMM).

Module 2 – What is an FOI request?

What should we do if information is not held?

- Do we hold the information?

- If so, do we hold in a recorded format?

Remember, we release the information but not necessarily the document.

- All information held in electronic databases is “held.”

Module 2 – What is an FOI request?

Module 2 – What is an FOI request?

What do you do if a request is too big to process?

- Section 12 of FOIA. A Rejection.

- There are two types:12(1) and 12(2)

- What is the cost limit?£600 or the equivalent of 3 ½ days @ £25 p/h toLOCATE, RETRIEVE and EXTRACT information.

- An estimate should be made and there is a ‘calculating the cost limit’ form to assist.

- Advice & Assistance.

- Discretionary Information.

Module 2 – What is an FOI request?

14(1) – Vexatious

14(2) – Repeated

What do you do if a request is abusive or designed to cause harassment?

Module 3 – ExemptionsWhat sort of information should not be released?

Module 3 – Exemptions

- Qualified exemptions

- Absolute exemptions

Qualified exemptions include…

S.22 Information intended for future publication

S.31 Law enforcement

S.35 Formulation of government policy

S.42 Legal privilege

S.43 Commercial interests

Module 3 – Exemptions

When we apply a qualified exemption, it is important to weigh up the public interest in maintaining the exemption or disclosing the information. (s.2(2))

- We have to be blind to requester motive.

- Important to distinguish between what is public and what is private interest.

Refer to the working assumptions on the MOJ website for more information at:

http://www.justice.gov.uk/guidance/foi-working-assumptions.htm

Module 3 – Exemptions

The public interest test

Absolute exemptions include…

S.21 Information accessible by other means i.e. internet

S.23 Supplied by /relating to named security bodies

S.32 Court records

S.41 Information provided in confidence

S.44 Information disclosure prohibited by law

S.40 Personal data (in part – DPA crossover)

Module 3 – Exemptions

One of the most common exemptions is Section 40 – Personal Data

Section 1 of DPA: Personal data is data which relates to a living individual who can be identified:

(a) from that data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of the Data Controller.

Module 3 – Exemptions

Sensitive Personal data is information relating to…

- The racial or ethnic origin of the data subject.- Their political opinions.- Their religious beliefs.- Trade union membership/activity.- Their physical or mental health.- Their sexual life.- Any alleged offences or proceedings against them.

Module 3 – Exemptions

What if someone requests their own personal data?

Module 3 – Exemptions

Neither Confim Nor Deny (NCND)

Simply by confirming that that we hold information, we might disclose exempt information.

Module 3 – Exemptions

Module 4 - FOI case studies

Module 5 - Internal Reviews

Module 5 - Internal Reviews

What is an Internal Review?

- The first stage in the complaints procedure

- The last chance for us to make sure that we have applied the legislation correctly

- How to make an Internal Review

- In writing to DACU.

- Who does the Internal Review?

- For fairness reviews are carried out by someone who was not involved in the original decision

- This will be someone in the relevant business unit

Module 5 – Internal Reviews

Internal reviews can have a major impact on the headlines too…

The Internal Review should consider the case again and re-examine the initial decision.

As the reviewer what should you be considering?

Did the initial response fail to:

Provide the information requested

Respond to the

request within 20

days

Provide advice and assistance

Explain the reasons for

refusing the request

Correctly apply the

FOIA exemptions

Module 5 - Internal Reviews

What are the possible outcomes of an Internal Review?

- The original decision is upheld;

- The original decision is reversed; or

- Part of the original decision is upheld and part is reversed.

Module 5 - Internal Reviews

What if I overturn the decision?

If you are overturning the original decision you may have to write a brief summary that:

- sets out the background- provide a synopsis of handling of original request- establish if exemptions were correctly applied- reconsider the public interest test if qualified exemptions were applied- include a draft response to the requester

All IR’s are trigger cases and a Disclosure Specialist will be allocated to support you through this process.

Please refer to the KILO manual for further guidance and the IR flowchart. This can be located via the Huddle network

Module 5 - Internal Reviews

Module 6 – ICO case and TribunalsWho is the Information Commissioner?

• Christopher Graham is the UK Information Commissioner.

• He took over the role from Richard Thomas on 29 June 2009.

The role of the ICO

• The Information Commissioner's Office (ICO) is a non-departmental public body which reports directly to Parliament and is sponsored by the Ministry of Justice.

• It is the independent regulatory office dealing with the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 across the UK; and the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 in England, Wales and Northern Ireland and, to a limited extent, in Scotland.

Christopher Graham

The Information Commissioner

Module 6 ICO/Tribunals

How we handle ICO cases

• Following an Internal Review the requester can ask the ICO to examine our decision.

• If you receive any correspondence from the ICO relating to a request you should forward it to DACU as soon as possible.

• DACU will allocate a DS to coordinate each case and the KILO is responsible for drafting. ICO reviews are extremely comprehensive and they may raise issues not previously considered. The ICO are able to request to examine all the information we hold in order to decide whether to support our decisions or not. The DS is likely to need to liaise with you about the detail of the request if you were the original or Internal Review KILO.

• There is no statutory time scale for replying to ICO cases but we aim to answer each request in 20 working days and this is written in to our business plan. The ICO usually sets individual deadlines on each case.

• Following their investigation the ICO will issue a Decision Notice. This decision is binding on the department, and failure to comply with it may result in contempt proceedings. The Decision Notice may uphold our initial handling of the request. Alternatively, the ICO might order us to disclose information we had sought to withhold.

Module 6 ICO/Tribunals

- ICO decisions are open to challenge by the requester or MOJ through the Tribunals system.

- The Tribunal is an independent body that hears appeals against ICO Decision Notices.

- Tribunal cases will involve MOJ legal advisers, DACU and the business area. They also require Treasury Solicitors and Counsel to be instructed. Senior Disclosure Specialists will work with you and the relevant legal advisers to decide whether to appeal a case to the Tribunal.

- If a business area takes a case to the Tribunal they will be responsible for all costs involved.

Tribunals

Module 6 ICO/Tribunals