Freedom Of Information Defined
What is the Freedom of Information Act?
The freedom of information act is slightly misnamed. Strictly speaking it should be called the access to documents or access to information act because in one sense, freedom is your right to do something without being limited. So your freedom of speech is your freedom to say what you want without being subject to penalties from the government. The access to information right is a right of access to information held by the government, and the government has a correlative duty to provide you with that information. It started a long time ago in 1766 in Sweden where they call it Swedish "Publicity Principle." Towards the end of the 20th Century, other countries started to adopt the same kind of law. These laws have essentially three characteristics. The first characteristic is that the right of access to information is a legal right and it's a general right. That is to say, you do not have to prove that you have a need to know. It is your right because you are a person. Some countries say it is your right as a citizen but the UK doesn't make that distinction. The second principle is that although there are exemptions, always, the exemptions must be fairly narrowly drawn. And the third basic principle is that if there is a dispute as to whether the information you've requested is exempt or not, there must be arrived a view of an independent arbiter; an independent judicator. Now this may be a judge in some countries. In the United Kingdom, it is the information commissioner who decides. But those are the basic principles of the Freedom of Information.
Who can request information?
Any person can request information. You don't have to be a resident, you don't have to be a citizen. You can do it yourself, you can do it through a lawyer, or you can do it through a company. Anyone can request information.
What information can I gain access to?
You can gain access to almost any information held by a public body. In the earlier versions of the information laws, they were usually in terms of documents. The French law is actually called the Access to Administrative Documents Act. The later laws changed the emphasis from documents to information, because with specialist information technology the concept of a discrete separate document is less and less usable. It's a right of access to information, although information would frequently be held in a document.
When will information not be given?
Information will not be given if it is in one of the exempt categories. The exemptions are fairly uniform in all the counties that have adopted such laws. There is an exemption for national security, exemption for law enforcement, exemption for personal privacy, exemption for commercial information in some circumstances. Those are some of the common exemptions. Now, some of the exemptions are subject to a harm test, that is to say, the information will be exempt from disclosure if the disclosure would cause a specific kind of harm. Other kinds of information that will be exempt are information that is exempt because it belongs to a certain class. That is to say, the government doesn't have to show that the disclosure of this particular information would cause harm; it simply shows that it belongs to a class, such as, for example, some kinds of government information, that would cause damage if any of the information in the class were disclosed. It's a distinction between the contents and class exemption.
What bodies does the Act cover?
The Act covers a wide range of government bodies, and these include the public sector bodies. It's central government. It is local government, and it is in many circumstances, bodies that are carrying out a public function even though they are in the private sector. So, it covers a very wide range of bodies. However, it does not cover private-sector bodies. I think the only country in the world with an Accessed Information law covering private bodies is The Promotion of Accessed Information Act in South Africa, which says that people have a right to access of information held by body in the private sector if that information is necessary to exercise or protect a right. South Africa is the only country to adopt such legislation so far.
How do I request information?
The simplest means is by a letter or e-mail. There is no designated form for requesting information in this country, although at least one other country does insist that you submit your request on a form. So, any requests for information will come under Freedom of Information Act. Now, for statistical purposes, government departments may differ over whether they treat every request for information as being under the Act or whether they require you to mention it before they list it under Freedom of Information statistics. That's mostly for the purpose of evaluating the magnitude of the duties under the Act.
How can I appeal if I am refused access?
Well, you usually will appeal within the Government department. They will have an internal appeals procedure. If the Government Department at the top still refuses to disclose the information, then you go to the Information Commissioner and appeal to him. He will then decide. If he decides to uphold the exemption you then have a right to appeal to the Information Tribunal. It is a three member tribunal which hears appeals from the Information Commissioner's Office.
How does the Act affect my business?
The Act affects your business in an indirect way. Under the freedom of information act, there is no direct right of access to information about your company, for example. However, if your company submits information to the government, and the government has information about your company in it's regulatory function, then that information may be made available to the public, if members of the public ask for it. There are exemptions for various kinds of commercial confidentiality, but simply stamping everything you give to the government as confidential in confidence is not enough to ensure that it will not be disclosed. There's another way in which the freedom of information act can affect your company. You can use the freedom of information act to obtain information about other companies so that if you have a competitor who's regulated by the same government body, you can ask for information about your competitor. Under the act, there is no specific provision that says the competitor has to be notified. There is such provision in some other countries but not in the UK. The information commissioner has said that in most circumstances, if information about a company or person is requested, then there should be notice given to that company or person. The person or company should be entitled to make representations to argue about why that information should not be disclosed. In the United States this has often led to cases before the courts, called reverse freedom of information act cases, in which someone asks information about a company from a government department. The company finds out about it and the company goes to court to stop the government department from disclosing the information. That's the way the freedom of information act can affect your company.
How should I comply with the Act?
In terms of compliance, you don't have any duties under the Freedom of Information Act, as a company. The Act mostly affects you in terms of providing opportunities for you to get information about other companies, and also in providing the possibility of complaining if information about you, which is held by government department, is sought by someone else.
What is the public interest test?
The public interest test usually applies in cases where the information is in an exempt category, but the law provides that the information may be disclosed if the public interest in disclosure outweighs any harm that is caused by the disclosure. Now in this case public interest is probably better defined as public benefit because as judges often say, the public interest is not just what the public are interested in. It's sometimes called a public interest override.
Are there any exemptions under the Freedom of Information Act?
Yes, there are always exemptions, although they vary from country to country. There is a fairly standard set of common exemptions. There's an exemption for national security, an exemption for information that would impair law enforcement, an exemption for information relating to natural persons' personal privacy, an exemption for commercial confidentiality, an exemption - and this varies from country to country - for advice given in confidence in government. Those are the basic exemptions in almost all countries.
