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1. FREEDOM OF
INFORMATION ACT
REQUESTS
ALEX SAUNDERS, PARTNER

2. What is a FOIA Request?
Freedom of Information Act 2000
(“FOIA”) gives any person, including
foreign nationals and companies,
access to any recorded information
held by public authorities
It applies to information which is
held by a public authority at the time
a request is received

3. Who does an FOIA request apply to?
Public authorities (i.e. local authorities, the NHS, the police, schools,
Government departments)
Publicly owned companies (i.e. a waste disposal company that is
wholly owned by a local authority)
Bodies designated by the Secretary of State (i.e. Network Rail,
UCAS, ACPO and the Financial Ombudsman Service)
FOIA applies to:

4. Handling Requests
 Time limits for complying with a request
On receiving a request, you must consider the following:
 Costs
 Vexatious and repeated requests
 Advice and assistance
 Response and refusal notices

5. Time limits for complying with a request
A public authority is normally required
to respond within 20 working days
(regardless of whether the information
is to be provided or withheld)
There are some specific variations under the Time for Compliance with Request
Regulations (i.e. schools must comply by the sooner of 20 school days or 60
working days).
If the “public interest test” applies, it
is “within such time as is reasonable
in the circumstances”. The ICO says
that this should not exceed 40
working days

6. Costs
A public authority is not obliged to
comply if the authority estimates that
the cost of complying with the request
would exceed the "appropriate limit"
“”Appropriate limit” is currently set at:
 £600 for Government departments
 £450 for local authorities, police,
NHS, schools
 A standard rate of £25 per hour is
used to calculate the total cost of
a response (regardless of the
actual staff-time cost)
 For local authorities, the
appropriate limit is therefore 18
hours @ £25 per hour

7. Vexatious and repeated requests
Public authorities may refuse requests that are vexatious or repeated:
 Vexatious is a high standard
 Consider all circumstances, including requester’s
motive and public importance of the information
 Consider whether a request is vexatious by
reference to the request and not the requester
For example, request would be vexatious where
there is a deliberate campaign designed to disrupt
the public authority
Public authority can refuse request if:
 Request is identical or substantially
similar to previous request from same
person
 Public authority has previously
complied with the request, or
confirmed information is not held
 A reasonable interval has not elapsed
between the two requests

8. What preparations has the council made for an emergency landing of Santa’s sleigh this
Christmas? Who would be responsible for rescuing Santa? Who would be responsible for
rounding up the reindeer, and who would have to tidy the crash site?

9. Advice and assistance
 Further information needed to identify, clarify and locate
the information requested. 20 working-day time limit will
not start until the request has been clarified
 The authority does not hold requested information but
can direct the applicant to the appropriate authority
 Compliance with the request would exceed the cost limit
but the applicant may be able to refine the request to
bring it within the cost limit. The 20 working-day time
limit will continue to run
Authorities have a
duty to offer advice
and assistance to
a requester where:

10. Response and refusal notices
When a public authority receives a request it
must either:
1. provide information to the requester;
2. write back to the requester to inform them
that the information is not held;
3. refuse to confirm or deny whether
information is held; or
4. confirm that information is held but refuse
to provide it.
If options 3 or 4, then must send a refusal
notice.
Refusal notice must confirm:
 Exemption relied on;
 Explain why the exemption applies;
 Explain why public interest test does not
apply (if applicable).
Note that refusal notices can be challenged.

11. Key exemptions
 Protecting information provided in confidence
A public authority may be exempt from disclosing information if it is:
 Protecting commercial interests and trade secrets
 Protecting personal data

12. Key exemption – confidential information
Exemption Absolute/Qualified Application Note
Protecting
information
provided in
confidence
Absolute
(i.e. no obligation to
carry out a “public
interest test”)
If disclosure would constitute
breach of confidentiality
1. The information must be
confidential
2. The duty of confidentiality does
not apply to trivial or useless
information
3. Most likely to apply to
information given voluntarily to
public authority

13. Key exemption – commercial interests
Exemption Absolute/Qualified Application Note
Protecting
commercial
interests and
trade secrets
Qualified
(i.e. must consider the
“public interest test”)
If disclosure would either:
• involve the disclosure of a
trade secret; or
• prejudice the commercial
interests of any person
Trade secret needs to have
commercial value and the owner
must have taken reasonable
steps to keep secret
There must be: (i) a link between
disclosure and impact on
commercial interests; and (ii)
likelihood that disclosure would
prejudice interests

14. Key exemption – personal data
Exemption Absolute/Qualified Application Note
Protecting
personal data
Absolute
(i.e. no obligation to
carry out a “public
interest test”)
If disclosure would cause
breach of obligations under
UK GDPR
Any personal data in a document
to be disclosed under FOIA
should be redacted

15. Derry City Council v ICO

17. Public interest test (1)
Public authority must disclose information unless public interest in applying the
exemption (where qualified) outweighs public interest in disclosing
Arguments in favour of disclosure:
 Public interest in transparency, accountability, public understanding and involvement in the
democratic process
 Legitimate public interest in the issue (has a widespread or significant impact on the public)
 Public interest in the information (i.e. a secret law)
 Suspicion of wrongdoing (must be public interest/concern, not the private interest of an
individual, and must have plausible basis)

18. Public interest test (2)
Relevant factors:
 The likelihood and severity of prejudice
 The age of the information
 The specific information and the public
interest in disclosure (i.e. does it add to public
understanding or inform the debate?)
 Information already in the public domain.
Irrelevant factors:
 The identity and motive of the applicant
 Any private interests
 Potential for misunderstanding information
 Other means of scrutiny or redress
 The interests of people in other countries
Balancing exercise

19. Evans v Attorney General

20. Final thoughts...

21. THANK YOU
Please feel free to get in touch with any questions:
E: asaunders@leathesprior.co.uk
T: 01603 281165