Freedom of Information Act Policy
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- Britton Blake
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1 Freedom of Information Act Policy Purpose This policy is essential reading for the following groups of staff: All senior managers and any staff that deal with requests for information under this legislation. The following groups of staff need to be aware of the existence of this policy: As above. Key points of the policy 1. The Trust must comply with the Freedom of Information Act 2000 (FOIA) which promotes openness and accountability across the public sector. 2. The Trust proactively publishes corporate information via an online Publication Scheme. 3. The Trust deals with requests for unpublished information formally in compliance with the law. 4. Requests are responded to within 20 working days and are answered fully unless a statutory exemption applies. 5. The Trust s records management approach supports FOIA compliance as do our FOI Procedures which are based on appropriate regulatory guidance. 6. The Trust will not undertake requests that would take more than 18 hours (the Fees Limit of 450) to respond to. Page 1 of 13
2 Policy lead: Ratifying Committee / Group: Status of policy: Policy Reference: Director of Strategic Development and Community Services Information Governance Programme Board FINAL TW/00153/16-18A Signed: John Vaughan, Chair, (Information Governance Programme Board) Signed: Approval date: November 2016 Review date: November 2018 Page 2 of 13
3 Contents 1. Scope 4 2. Responsibilities 4 3. Definitions 5 4. The Policy 5 5. Monitoring Compliance and Effectiveness 9 6. Consultation References Appendix A - Definitions 11 Appendix B Freedom of Information Act Exemptions 13 Page 3 of 13
4 1. Scope The Freedom of Information Policy will ensure that, Central and North West London Foundation Trust (CNWL), as a public body, will comply with all aspects of the Freedom of Information (FOI) Act The Freedom of Information Act relates to access of information held by public bodies. The Act provides individuals or organisations with the right to request information, promoting a culture of openness and transparency. This policy is intended to cover all records created in the course of the business of the Trust, i.e., corporate records which are also public records under the terms of the Public Records Acts 1958 and This includes messages and other electronic records. The policy outlines good practice and identifies the responsibilities of Trust staff in terms of Freedom of Information and should be read alongside the Trust s Records Management Policy and professional codes of conduct. 2. Responsibilities Ultimate responsibility for Freedom of Information rests with the Chief Executive of the Trust but all staff members who record information, whether on paper or by electronic means, also have responsibilities under the Act and under this policy. Information Governance Programme Board oversees and reviews and implementation of this policy and monitors the time taken to respond to FOI requests to ensure that the Trust complies with the FOI Act. The Head of Information Governance will assess and review any complex requests and approve any exemptions. The Freedom of Information Officer, in consultation with the Head of Information Governance, will be the officer responsible for the overall co-ordination of the Trust s responses to access to information requests. It is this person s responsibility to: Ensure organisational compliance with the FOI Act Maintain the currency of this policy and the Publication Scheme Promote FOI awareness throughout the organisation Ensure the general public has access to information about their rights under the FOI Act Assist with investigations into complaints and appeals Encourage the setting up of a FOI group Liaise and work with other employees responsible for information handling activities, e.g. Caldicott Guardian, DPO, Information Security Manager Upon receipt of the access to information request, the Freedom of Information Officer will provide an initial notice to the applicant acknowledging the receipt and, if necessary, requesting further information/clarification to assist the Trust in identifying the required information. Service line managers/team leaders should provide promptly any information requested from their departments. Page 4 of 13
5 3. Definitions See Appendix A 4. The Policy 4.1 The request procedure Whether the request is routine, complex or sensitive, the FOI Procedure must be followed and the request transmitted to the Freedom of Information Officer to enable a unique reference and audit trail to be placed on the request (see 1.4) Routine requests are straightforward requests for information. Examples of routine requests include: requests for the employment contact details of Trust staff; requests for the opening hours or details of services that the Trust provides to the public; requests for a hard-copy of a document that is located on the Trust s public website; requests for leaflets produced by the Trust; or routine information that is readily available and can be provided to the applicant almost immediately Complex or sensitive requests are requests that go beyond day-to-day correspondence. Requests may be complex for a variety of reasons and may include: requests that involve consultation with other public bodies or with third parties; requests that seek access to information that may be exempt from disclosure; requests on issues that have a high public profile; requests that relate to financial or commercial interests; requests that may be part of an orchestrated campaign; or requests that are mixed, in that they include information covered by the Freedom of Information Act 2000, the Data Protection Act 1998 and/or the Environmental Information Regulations On receipt of an information request, the request must be: Stamped or written on with the date of receipt. Transmitted to the Freedom of Information Officer by (freedomofinformation.cnwl@nhs.net) on the date of receipt If a potential applicant indicates that they need assistance with making a valid access to information request, they should be referred to the Freedom of Information Officer. 4.2 Coordination of Process The Freedom of Information Officer, in consultation with the Head of Information Governance, will be the officer responsible for the overall co- ordination of the Trust s responses to access to information requests Upon receipt of the access to information request, the Freedom of Information Officer will provide an initial notice to the applicant acknowledging the receipt and, if necessary, requesting further information/clarification to assist the Trust in identifying the required information. Page 5 of 13
6 4.3 Timeframe process The Freedom of Information Officer will ensure that access to information requests are resolved within the statutory 20 working days This timeframe is subject to the following: The Freedom of Information Officer may need to clarify with the applicant exactly which information is required. The 20 working days begins to run after the Freedom of Information Officer has received this clarification. The Freedom of Information Officer may issue a fees notice to the applicant, setting out the amount the Trust intends to charge for the supply of the requested information. The 20 working days begins to run after the applicant has complied with the fees notice providing that this compliance occurred within 3 months of the fees notice being issued. 4.4 Fees In accordance with sections 12 and 13 of the Act if the Freedom of Information Officer and Head of Information Governance, estimate that the cost of compliance with the request for information exceeds the appropriate limit set by the Fees Regulations, they will notify the applicant. The systems for the Provision of Advice and Assistance to Applicants (section 16) will be initiated to investigate ways of bringing costs within the appropriate limits. If it is not possible to comply with the request within the appropriate limits then the request will be refused. 4.5 Collation of requested information The Freedom of Information Officer, in consultation with other staff as appropriate, will determine the location(s) in the Trust of the information requested The Freedom of Information Officer will forward the request with an explanation of the information sought to the most appropriate person and copy in the Service Director or Service Head as required The relevant Service Director or Service Head will be referred to if there is any problem with locating the information, collating it and sending it to the Freedom of Information Officer, with any further advice, within 10 working days If the required information is not available or would take more than eighteen hours to produce, the Freedom of Information Officer must be notified as soon as possible. 4.6 Transferring requests for information The Freedom of Information Officer, in consultation with the Head of Information Governance, will determine if the Trust is not able to comply with a request (or comply with it in full) because the information is not held by the Trust and the Trust will confirm that it does not hold that information In this situation, the Freedom of Information Officer will either: Advise the applicant that the information may be held by another public authority and, if appropriate, provide the contact details of that public authority; or consult the other public authority with a view to ascertaining whether it does hold the information and, if so, whether that authority is obliged to confirm this under section 1(1) of the Act. If there is confirmation, the Freedom of Information Officer will consider transferring the request. Page 6 of 13
7 4.6.3 If the Trust receives a transferred request from another public authority, the Freedom of Information Officer will process the request and fulfil the Trust s obligations under Part I of the Act in the same manner as if the request had been received direct from the applicant. The time to comply with the request will commence from the date of receipt by the Trust of the transferred request. 4.7 Consultation with third parties If the access to information request relates to or is likely to affect the interests of others, the Freedom of Information Officer will consult as appropriate with such third parties. 4.8 Exemption information The Freedom of Information Officer, in consultation with the Head of Information Governance, and, if necessary, the Trust solicitors, will determine if the information requested is subject to an exemption. Exemptions may include: Section 2 of the Act, applying an exemption (either absolute or qualified) under Part II of the Act The fee not being paid within a period of three months beginning with the day on which the fees notice was given to the applicant Under section 12 of the Act, if it is estimated that the cost of compliance with the request for information exceeds the appropriate limit (18 25 / 450) The demonstration that the request for information is either vexatious or repeated, as indicated under section 14 of the Act If an access to information request is refused, the applicant will be informed of the decision and the reasons for this decision within 20 working days. Additionally, the applicant will also be informed of the procedures for requesting an Internal Review of the Trust s handling of the request If the Trust is to any extent reliant upon section 2 of the Act (i.e. that an exemption applies), the Freedom of Information Officer will issue a notice within 20 working days to the applicant. The notice will: State that fact Specify the exemption in question State why the exemption applies Advise the applicant of the right to an Internal Review 4.9 Review of collated information Once the information has been collated and sent to the Freedom of Information Officer, they, in consultation with of the Head of Information Governance will review the information to ensure that it is suitable for release to the applicant and not subject to any exemptions The Freedom of Information Officer will ensure that the Head of Information Governance approves the release of the information to the applicant Release of information The Freedom of Information Officer will provide the applicant with the information requested either by , through the post or by arranging a time for the applicant to view the information. Page 7 of 13
8 The Freedom of Information Officer will also advise the applicant of the procedures to request an Internal Review with regard to the Trust s processing of their access to information request Freedom of information requests record The Freedom of Information Officer will maintain a record of: All Freedom of Information requests received along with their unique reference. All notices issued to refuse access to information requests and any exemptions applied. All information released to requestors. If there is information that is regularly requested, the Head of Information Governance will consider including it within the Publication Scheme Internal review and external appeal Any applicant who is unhappy with the way that CNWL has dealt with a request may ask for an Internal Review. This will typically relate to the use of an exemption Internal Reviews will, in the first instance, be handled by the Head of Information Governance. The Head of IG will complete all reviews that are within his competence. If the review touches on a specialist area or requires impartial handling for some reason it will be passed to another senior officer of the Trust or (if required) a non-executive director The Trust will endeavour in all cases to complete Internal Reviews within 20 working days. This is subject to the complexity of the review in each case At any time an applicant may refer to the Information Commissioner s Office for an opinion or to pursue and appeal. The Trust will make applicants fully aware of the role of the Commissioner and of their rights at every stage. Freedom of Information contact details Freedom of Information Officer Information Governance CNWL NHS Foundation Trust Headquarters 1 st Floor, Stephenson House 75 Hampstead Road London NW1 2PL Tel: / freedomofinformation.cnwl@nhs.net Page 8 of 13
9 5. Monitoring Compliance and Effectiveness What key element(s) need(s) monitoring as per local approved policy or guidance? Element to be monitored Information delivery times. Who will lead on this aspect of monitoring? What tool will be used to monitor/check/ observe/assess/ inspect/authenticate that everything is working according to this key element from the approved policy? How often is the need to monitor each element? How often is the need complete a report? How often is the need to share the report? Who or what committee will the completed report go to. How will each report be interrogated to identify the required actions and how thoroughly should this be documented in e.g. meeting minutes. Lead Tool Frequency Reporting arrangements Information Governance Team Information Governance Activity Report. Compliance monitoring annually. Subject Access Requests quarterly. Information Governance activity will be presented to the Information Governance Programme Board Which committee, department or lead will undertake subsequent recommendatio ns and action planning for any or all deficiencies and recommendatio ns within reasonable timeframes? Acting on recommendatio ns and Lead(s) Information Governance Programme Board. How will system or practice changes be implemented and how will these be shared. Change in practice and lessons to be shared The action plans will focus on lessons learnt and these will be passed on to the relevant services for training and raising awareness. Page 9 of 13
10 6. Consultation This policy has been developed in consultation with the following people / groups: Director of Strategy & Performance / SIRO Caldicott Guardian Head of Information Governance Freedom of Information Officer Information Governance Programme Board 7. References Department of Health IG Toolkit Freedom of Information Act 2000 Page 10 of 13
11 Appendix (A) Definitions Glossary of terms Absolute exemption applied to information that does not have to be released to the applicant either through a Publication Scheme or through the general right of access under the Act. Information to which an absolute exemption applies does not require a public authority to take a test of prejudice or the balance of public interest to be in favour of nondisclosure. Reference to absolute exemptions can be found in Part I, Section 2 and Part II of the Act. Applicant - the individual(s), group or organisation requesting access to information under the Act. Duty to confirm or deny - any person making a request for information to a public authority is entitled to be informed in writing by that authority whether the public authority holds the information specified in the request or not. Fees Notice a written notification issued to an applicant stating that a fee is payable and exempts public authorities from being obliged to disclose information until the fee has been paid. The applicant will have three months from the date of notification to pay the fee before his request lapses. Fees Regulations national regulations that will prohibit a fee with regard to certain types of request, set an upper limit on amounts that may be charged and prescribe the manner in which any fees are to be calculated. The regulations will not apply where provision is made under another Act as to the fee that may be charged for the provision of particular information. General right of access - Section 1 of the Act confers a general right of access to information held by public authorities. An applicant has a right to be told whether the information requested is held by that authority and, if it is held, to have it communicated to them. Provisions limiting an authority's duty under section 1 appear in sections 1(3), 2, 9, 12 and 14 and in Part II of the Act. The grounds in sections 9, 12 and 14 relate to the request itself and the circumstances in which an authority is not obliged to comply with it. The provisions of Part II relate to the nature of the information requested. Information Commissioner - The Information Commissioner enforces and oversees the Data Protection Act 1998 and the Freedom of Information Act The Commissioner is a United Kingdom (UK) independent supervisory authority reporting directly to the UK Parliament and has an international role as well as a national one. In the UK the Commissioner has a range of duties including the promotion of good information handling and the encouragement of codes of practice for data controllers, that is, anyone who decides how and why personal data, (information about identifiable, living individuals) are processed. Lord Chancellor s Department - The Lord Chancellor's Department is responsible for the efficient administration of justice in England and Wales. Broadly speaking the Lord Chancellor is responsible for: The effective management of the courts. The appointment of judges, magistrates and other judicial office holders. The administration of legal aid. The oversight of a wide programme of Government civil legislation and reform in such fields as human rights, freedom of information, data protection, data sharing, family law, property law, electoral & referenda law, defamation and legal aid. Public authority - The Act is intended to have wide application across the public sector at national, regional, and local level. In view of the large number of bodies and offices intended to fall within the scope of the Act it is not feasible to list each body individually. Public authorities are, therefore, designated in one of the following ways: Page 11 of 13
12 on the face of the Act (in Schedule 1), using generic descriptions where appropriate, which specifies the principal authorities in national and local government, together with the principal public authorities relating to the armed forces, national health service, education, the police and other public bodies and offices; by order under section 4(1) adding to Schedule 1 any body or the holder of any office that satisfies certain specified conditions; by order under section 5 adding any person that satisfies certain conditions and that appears to the Secretary of State to exercise functions of a public nature or is providing under a contract with a public authority any service whose provision is a function of that authority; or (d) by reference to the definition of a publicly-owned company in section 6. Qualified exemption - Information to which a qualified exemption applies requires a public authority (q.v.) to take a test of prejudice or to demonstrate that the balance of public interest is in favour of non-disclosure. Reference to qualified exemptions can be found in Part I, section 2 and Part II of the Act. Appendix (B) Freedom of Information Act Policy EXEMPT INFORMATION UNDER THE FREEDOM OF INFORMATION ACT In order to withhold information it will generally be necessary to be able to cite one of the exemptions. A list of the exemptions which relate to distinct classes of information, or specific subjects follows. There are two types of exemptions under the Act: Absolute Exemptions do not require the balance of public interest to be in favour of nondisclosure. With the exception of s.21, exemptions apply not only to the communication of information but also to the duty to confirm or deny if that itself would disclose information that it is reasonable to withhold. s.21: Information reasonably accessible to applicant by other means. s.23: Information supplied by, or relating to, bodies dealing with security matters. s.32: Court Records. s.34: Parliamentary Privilege. s.36: Prejudice to effective conduct of public affairs (only absolute in relation to information held by the House of Commons or the House of Lords). s.40: Personal Information (where disclosure may contravene the Data Protection Act 1998). s.41: Information provided in confidence (only if this would constitute an actionable breach of confidence). s.44: Prohibitions on disclosure. Qualified Exemptions are subject to the Public Interest Test (require the public body to decide whether it is in the balance of public interest to not disclose information). s.22: Information intended for future publication. s.24: National Security. s.26: Defence. s.27: International Relations. s.28: Relations within the United Kingdom. s.29: The Economy. s.30: Investigations and proceedings conducted by public authorities. s.31: Law Enforcement. s.33: Audit Functions. s.35: Formulation of Government Policy, etc. s.36: Prejudice to effective conduct of public affairs. s.37: Communications with Her Majesty etc. and honours. s.38: Health and Safety. s.39: Environmental Information. s.42: Legal Professional Privilege. Page 12 of 13
13 s.43: Commercial Interests. The only other circumstances in which it will be possible to refuse a request are: If the cost of compliance exceeds the appropriate limit set by the Fees Regulations. If the request is vexatious or repeated. Page 13 of 13
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