In 2000, the UK government introduced the Freedom of Information Act. This legislation – enforced by the Information Commissioner's Officer (ICO) – has two main purposes.

First, it exists to ensure that public bodies routinely publish information about their activities. And secondly, it stipulates that public authorities must answer requests for information.

We're going to focus on the second obligation. Who can make a request from whom? And how does the process work?

Who can make an FOI request?

The answer is simple: anyone. And that means anyone in the world, not just in the UK. 

What is a public authority?

The Act doesn't provide a watertight definition of what a public authority is – but typically they are organisations funded by the taxpayer which make decisions that can affect the taxpayer's life.

Under this fuzzy umbrella, more than 100,000 organisations are covered, meaning they have to answer any FOI requests they receive. They include:

• Government departments and agencies (both central and devolved).
• Government agencies.
• Councils of all kinds.
• All NHS bodies including pharmacies, opticians, GPs and dentists.
• The police, PCCs and fire service.
• Publicly funded museums, galleries and theatres.
• Schools, colleges and universities.
• Publicly owned companies.
• Registered social landlords in Scotland.
  
  

However, there are exceptions. Unsurprisingly, a request for classified documents from MI5 or the Royal Family will end up in the waste bin. Less obviously, perhaps, Housing Associations aren't obliged to answer FOI requests. You're also unable to make requests pertaining to an individual MP or councillor.

Some institutions are only partly covered by the Act. For instance, the BBC isn't bound by the Act with regard to its journalistic output. Other organisations that fall in this category are the Bank of England, Channel 4 and the Houses of Parliament.

Are private companies covered by the Act?

No, they're not. Requests for information from private companies can be made under the Data Protection Act 2018 instead.

What does the Act mean by "information"?

The information that you can request from a public body under the FOI Act is available in a range of formats: documents, computer files, letters, emails, photographs, sound recordings and video.

What are the public body's obligations to the requester?

According to the FOI Act, the public authority has to reply to the requester within 20 working days. If they hold the information requested, they either have to disclose it or refuse it under one of the Act's exemptions – and they must explain this choice to the requester.

How do you make an FOI request?

The government has a full guide here. Key points are:

• The request has to be made in writing, where possible. If you have a disability that means you can't make your request this way, you can do so over the phone.
• You should include your name, contact address and a detailed description of the information you're after.
• You won't be expected to pay anything, except perhaps for photocopies or postage.

Journalist Matthew Burgess has the following tips for making a request:

• Make sure you are asking for information specifically rather than asking a general question.
• Say that you're making the request under the FOI Act.
• Do your research if the information you're after relates to a specific law or act. Also, make sure you check whether the information has already been published or whether the information has previously been refused. (You can search for published responses here.)
• Be specific.

What are the exemptions?

Most exemptions in the Act are known as "qualified exemptions". In these instances, the public authority has to complete a public interest test (PIT). In this, they make their case that the need to withhold the information outweighs the public interest in releasing it.

This test can then be challenged by the requester through the complaints procedure, if necessary.

A smaller number of exemptions are known as "absolute exemptions" where the public authority simply refuses to disclose the information. These are difficult to challenge as they don't need to be justified by a PIT.

One of the clearest examples of an exemption is where the public body argues that disclosing the information would jeopardise national security.

What can you do if your request is refused?

If your request is refused because of an exemption, you can make a complaint.

There are four stages to this procedure, each more legalistic than the last.

Stage one is to request an internal FOI review – essentially a reassessment of the handling of the request. This can lead to refusals being reversed.

If this fails, the requester can make a complaint to the ICO. This has to be done via the ICO's complaints form. If the complaint is considered to be valid, the ICO has to issue a decision notice – this either sides with the public body or enforces the FOI Act and makes them disclose the information.

A decision notice can be challenged by both public authorities and requesters in the Information Tribunal.

If the ICO doesn't issue a decision notice, you can go to the Information Tribunal and challenge the decision. Most requesters do so without legal representation – but if the ICO represents itself at the Tribunal, they're likely to bring a lawyer.

The final stage is to make an appeal to the higher courts. These include the Court of Appeal, the Supreme Court and the European Court.

What happens to a public authority if it breaches the Act?

There are several ways that a public authority can breach the Act. These range from a failure to respond to a request to the destruction or concealment of information.

Only this second breach is a criminal office. The ICO isn't able to fine a public body for failing to comply with the Act.

At Milners, we provide straightforward, transparent legal advice on a range of personal and business matters. If you're looking for legal services in Yorkshire or the wider UK, don't hesitate to contact us for a free, no-obligation consultation.