Freedom of Information Act 2000 (FOIA) & Environmental Information Regulations 2004 (EIR) Public Interest Test FOI_1204

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1 Freedom of Information Act 2000 (FOIA) & Environmental Information Regulations 2004 (EIR) Public Interest Test FOI_1204 The Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR) give rights of public access to information held by public authorities. On occasion, during the process of considering a request for information, it may be necessary for the Trust to undertake what is known as a Public Interest Test. This is required by law when certain exemptions (FOIA), or exceptions (EIR) to disclosure are being applied. The term the public interest is not defined in either the (FOIA) or the (EIR). However something which is in the public interest may be summarised as something which serves the interests of the public. The public interest test entails a public authority deciding whether, in relation to a request for information, it serves the interests of the public either to disclose the information or to maintain an exemption or exception in respect of the information requested. To reach a decision, a public authority must carefully balance opposing factors, based on the particular circumstances of the case. Where the factors are equally balanced, the information must be disclosed. This document is designed to record the formal process undertaken by the Trust to comply with its obligations to undertake a public interest test where appropriate. This document will be issued directly to key members of staff who have knowledge, at an appropriate level, relating to the information being requested and or the potential consequences of its release. The document should be completed where indicated and returned to the Trust Information Governance Officer within 5 working days of receipt. Applying the public interest test: points to bear in mind The application of the public interest test is a balancing exercise. An authority must weigh up opposing, pertinent considerations as to what would be in the public interest. Before being asked to complete the test, the Trust Information Governance Department will have established that the requested information potentially engages a particular exemption or exception/s. In applying the test, only public interest considerations relevant to the individual exemption being claimed should be taken into account in relation to maintaining the particular exemption, rather than general public interest considerations which might appear to be relevant. The exemption or exception being claimed will be specified on page two of this document. Under the FOIA, conduct the test separately for each exemption claimed. However the position differs for the EIR, where public interest factors should be considered as a whole. TO BE COMPLETED BY INFORMATION GOVERNANCE DEPARTMENT: Page 1 of 5 REVIEW DATE: NOVEMBER 2014

2 FOI / EIR REQUEST REFERENCE: 1204 DATE: 5 th December 2012 NAME OF INFORMATION GOVERNANCE MANAGER: Heidi Doubtfire-Lynn DETAILS OF EXEMPTION / EXEMPTIONS BEING APPLIED: Exemptions under (FOIA) requiring the application of a public interest test include: Information intended for future publication (s22) Mark (X) where applicable: Exemptions under (FOIA) requiring the application of a public interest test and/or a prejudice test include: Defence (s26) Mark (X) where applicable: National Security (s24) International relations (s27) Investigations and proceedings conducted by public authorities (s30) Formulation of Government Policy (s35) Communications with Her Majesty and honours (s37) Relations within the United Kingdom (s28) The economy (s29) Law enforcement (s31) Health and Safety (s38) Audit Functions (s33) Environmental information (s39) Legal professional privilege (s42) Prejudice to effective conduct of public affairs (s36) Commercial Interests (s43) Personal Information (s40) EXPLAINATION OF WHY THE ABOVE EXEMPTION IS BEING CONSIDERED: The Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR) provide rights of public access to information held by public authorities balanced with the rights of individuals under the Data Protection Act A Section 40 Exemption under the FOI Act is designed to address the tension between public access to official information and the need to protect personal information. Freedom of information requires public authorities to release information unless it is exempt, and wrongly withholding information will breach the FOIA. However, wrongly releasing an individual s personal information will breach the DPA. It is therefore very important to understand and apply this exemption correctly to ensure compliance with both regimes. A Section 36 Exemption (Prejudice to the effective conduct of public affairs) is being applied in relation to one document attached to two chains identified as DOC 111 and DOC 129. Page 2 of 5 REVIEW DATE: NOVEMBER 2014

3 This document contains details of Salisbury NHS Foundation Trust s response to a questionnaire developed jointly by the members of the South West Pay Consortium. It has been designed specifically to provoke debate and discussion potential cost savings relating to staff current contractual arrangements. TO BE COMPLETED BY THE INDIVIDUAL SPECIFIED BELOW: NAME OF INDIVIDUAL REQUESTED TO COMPLETE PUBLIC INTEREST TEST: JOB TITLE: Peter Hill Chief Executive Officer (CEO) We set out below examples of the types of considerations, referred to in Information Tribunal decisions that a public authority might take into account in applying the public interest test. Note that some arguments may apply in either direction, depending on the facts. This is not intended to be an exhaustive list; authorities should refer to ICO guidance for considerations applicable to specific exemptions and exceptions. Please mark each example as either applicable or not applicable. PLEASE ADD AN X TO EACH ARGUMENT TO SHOW APPLICABLE OR NOT APPLICABLE. For those marked as applicable, please then add a description of why this is considered to be the case below. Irrelevant considerations in applying the public interest test The identity of the person making the request. The possibility that the information requested could be misunderstood or regarded as too technical or complex. The status of the information; for instance if it is classified, or if it relates to senior individuals. The number of exemptions being claimed. In relation to maintenance of the exemption, factors concerning a different exemption to the one being used are irrelevant. The accuracy of the information. Arguments that disclosure will lead to poorer record keeping. Examples of arguments that could weigh in favour Not of disclosure: A General arguments in favour of promoting transparency, accountability and participation B Disclosure might enhance the quality of discussions and decision making generally. C The balance might be tipped in favour of disclosure by financial issues. For instance, if the information requested involved a large amount of public money, this might favour disclosure. D The specific circumstances of the case and the content of the information requested in relation to those circumstances. E The age of the information might tip the balance in favour of disclosure. The passage of time may impact upon the strength of the public interest arguments. F The timing of a request, in respect of information relating to an investigation, may be relevant. This would depend on the stage the investigation had reached and how much information was in the public domain. G The impact (beneficial or otherwise) of disclosure upon Page 3 of 5 REVIEW DATE: NOVEMBER 2014

4 individuals and /or the wider public. H Other (please specify) I Other PLEASE ELABORATE HERE, DETAILS OF THE ARGUMENTS IN FAVOUR OF RELEASE OF THE INFORMATION MARKED ABOVE AS APPLICABLE: A B C D E F Examples of arguments that could weigh in favour of maintenance of the exemption - but only where relevant to the specific exemption being claimed The specific circumstances of the case and the content of the information requested in relation to those circumstances. The age of the information might tip the balance in favour of maintaining the exemption or exception. The passage of time may impact upon the strength of the public interest arguments. The likelihood and severity of any harm or prejudice that disclosure could cause. The significance or sensitivity of the information. For Not instance, is it live? The need for a safe space for The Trust to formulate and debate issues away from public scrutiny. The balance might lie in favour of maintaining the exemption or exception in view of the risk of disclosure inhibiting frankness and candour in debate and decision making, especially within government. The strength of this argument depends on clear evidence that it will have this effect. G In respect of information relating to an investigation, the timing of the request may be relevant, depending on the stage the investigation had reached, and how much information was in the public domain. H The impact (beneficial or otherwise) of disclosure upon individuals and /or the wider public. I Other (please specify) PLEASE ELABORATE HERE DETAILS OF THE ARGUMENTS THAT COULD WEIGH IN FAVOUR OF MAINTENANCE OF AN EXEMPTION OR EXCEPTION MARKED ABOVE AS APPLICABLE: Section 40: Argument The Trust has scrutinised the personal information subject to this FOI and taken all necessary steps to prevent the release of the personal contact details of staff in their role as employees of the organisations and endeavoured to maintain their rights under the Data Protection Act. This has been achieved by redacting details of employee s mobile telephone numbers and personal addresses. Section 36: Argument Page 4 of 5 REVIEW DATE: NOVEMBER 2014

5 The current economic climate with the UK and the reduction of funding has placed immense financial pressures on Salisbury NHS Foundation Trust. Therefore, it is the duty of the Trust Board to show due diligence and investigate and debate any potential cost saving avenues. This includes a review of employee s terms and conditions of contract. Furthermore it is in the Trust s best interests to conduct open and frank discussions with other NHS organisations without reproach. Conclusion: Section 40: Personal Data The decision to redact the personal addresses and mobile telephone numbers of employees must remain in place in order to fulfil the Trusts obligations under the DPA. Section 36: (Prejudice to the effective conduct of public affairs) This is a qualified exemption and therefore we have considered the public interest balance. The arguments for and against release have been assessed and it is our view that the balance of public interest falls in favour of the exemption. Please sign and date below to confirm that the information entered above is to the best of your ability, a true reflection of your opinion. SIGNED: DATED: 6 December 2012 Page 5 of 5 REVIEW DATE: NOVEMBER 2014