The Freedom of Information Act 2000, the main provisions of which came into force on 1 January 2005, gives individuals and businesses a right of access to information held by public authorities.
The Act is retrospective and applies to information recorded before and after the Act came into force. This right has wide ranging implications for the property industry. Public authorities frequently have extensive land holdings and information about their portfolios including arrangements with third parties is potentially open to public scrutiny.
Which “public authorities” can I obtain information from?
The Act relates to information being held by public authorities which for the purposes of the Act include:
- All government departments and various other central and local government bodies
- The armed forces (other than special forces and units assisting the Government Communications Headquarters
- Health authorities and various educational institutions
- Police authorities
- HM Revenue and Customs (formerly Inland Revenue)
What information can I obtain?
The Act provides a right of access to all recorded information held by public authorities, subject to certain exemptions (see below).
Any person making a request to a public authority for identified information is entitled:
- To be informed in writing by the authority whether it holds information described in the request (the duty “to confirm or deny”) and
- If so, to have that information communicated to him/her
The Act refers to “information” and not just “documents” so it is possible to ask a public authority for information which is not simply contained in a particular document but requires the authority to research the answer and prepare a response.
Public authorities hold a substantial amount of information which relates to land: land use, environmental matters, proposals to dispose of its land or procure new land and details of rents charged and paid.
In addition, the information that companies contracting with public authorities for the management or development of land include in their bid documents may be of considerable interest to competitors. Property companies proposing to do business with a public authority should be cautious and take on board the fact that any information they provide may subsequently become available under the Act, although it is likely that information held about current tenders will fall within the exemption in section 43 as commercially sensitive (see below).
Will I have to pay for the information?
Fees can be charged by public authorities for providing requested information subject to limits set by the Secretary of State. Public authorities will be able to refuse a request on the grounds of cost if this exceeds £600 for central government and £450 for other bodies (this represents between two and a half and three and a half days searching time).
How quickly do public authorities have to respond to my request?
Public authorities generally have 20 working days in which to respond to a request.
What are the exemptions to the general right of access to all recorded information held by public authorities?
Unsurprisingly, there are numerous exemptions.
Some exemptions are absolute and some are “qualified”. Public authorities can only invoke qualified exemptions where the public interest in disclosing the information is outweighed by the public interest in invoking the exemption.
Some of the exemptions are as follows:
- Section 21 – an absolute exemption for information available by other means e.g. from the Land Registry
- Section 41 – an absolute exemption if the requested information was provided to the public authority in confidence (i.e. if disclosure of information would be an actionable breach of confidence).
- Section 43 – a qualified exemption for any commercially sensitive information (where release of the information would be likely to prejudice the commercial interests of any person) and trade secrets
What should businesses who supply information to public authorities be doing?
Businesses should be putting in place procedures to claim confidentiality if they are supplying information to public authorities e.g. entering into confidentiality agreements, marking confidential material as such and ensuring that confidential information is separated from non-confidential information.
Conclusion
The Freedom of Information Act brings both opportunities and risks. It allows businesses to obtain information held about them and others but by the same token businesses dealing with public bodies need to manage the information they supply to public authorities with care.
Further information
The basis on which third parties can try to agree with public authorities that information should be treated as confidential is limited. The Department for Constitutional Affairs has issued a code under Section 45 of the Act which makes it clear that public authorities cannot contract out of their obligations under The Freedom of Information Act by agreeing very restrictive confidentiality provisions (see www.dca.gov.uk/foi/codepafunc.htm)
Who can help?
If you would like further advice about The Freedom of Information Act please get in touch with your usual contact at plainlaw or Philip Horn on 01865 240202 or e-mail him at philip.horn@plainlaw.co.uk.
This edition of “The Law made plain” is written to provide you with general information. It is recommended that you seek specific professional advice before taking any action.
© Copyright plainlaw 2005
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