Freedom of Information update

This update draws together a number of issues relating to FOI and archives, and notes new secondary legislation and a useful website.

Deposited private archives

As promised, we have continued to explore the issue of whether private archives deposited on loan in a public sector archives office, but remaining the property of the depositor, are covered by the FOI Act. 

It looks as if the position is more complex than we thought and a number of different factors may be relevant. Both the custody and ownership of the documents and also of the information contained in them is likely to be highly relevant but not conclusive. Also highly relevant but not conclusive are the circumstances in which the documents and information were created, the purpose for their creation and the purpose for which they are now held. Other relevant factors are who has the right of access to them, and the right to control access, and who has the right to dispose of them.  

The issue of whether deposited private archives fall within the scope of the Act will need to be considered on a case-by-case basis, therefore. We will give further thought as to whether guidance on this should be issued. Please let us know if you think this would be useful (email Rachel Bell, whose contact details are in RecordKeeping).

In the last issue of FOI Update we provided advice on what to do if you receive an FOI request involving deposited private archives. That advice still stands and is available online at http://www.nationalarchives.gov.uk/services/pdf/foi_update2004.rtf. 

The position outlined above reflects our current understanding of the law and is, of course, subject to change in the light of case law.

Fees

The FOI Fees Regulations make no special provision for archives offices to charge a fee for any detailed research required to respond to an FOI request. This is because the publication scheme provides a means by which a search fee can be specified and applied. The search fee is for a detailed search to enable you (the archives office) to confirm or deny that you hold the requested information. (Note that telling an applicant whether you hold information is itself provision of information, albeit not the requested information.) 

The search fee can be charged even if the located information proves to be exempt, but the work of determining whether exemptions apply and should be claimed should not be included in any fee. The search fee can operate alongside a fee for copies of any information located and retrieved as a result of this search. 

Publication scheme classes will need to be framed accordingly. We are currently discussing with the Information Commissioner’s Office the need for further guidance on this. 

The search fee described above does not apply when the request for information falls under the Data Protection Act, i.e. an applicant is asking for information about himself. A fixed fee of £10 continues to apply to these ‘data subject access requests’. 

Information Tribunal Rules

The Information Tribunal is the body to which appeals from the decisions of the Information Commissioner can be made. Its Rules can be seen at: 

SI 2005 No 13, The Information Tribunal (National Security Appeals) Rules 2005 are at http://www.legislation.hmso.gov.uk/si/si2005/20050013.htm

SI 2005 No 14, The Information Tribunal (Enforcement Appeals) Rules 2005 are at http://www.legislation.hmso.gov.uk/si/si2005/20050014.htm     

Other recent FOI Statutory Instruments 

A number of Statutory Instruments were laid in December 2004-January 2005. You will find links on the FOI website noted below, but in particular you might like to see the Order to extend the deadline for responding to requests for information in certain cases, described in the last Update. It is at:  http://www.legislation.hmso.gov.uk/si/si2004/20043364.htm. 

Further guidance from the Department for Constitutional Affairs

The Department for Constitutional Affairs continues to publish useful guidance on its FOI website - http://www.foi.gov.uk. This is a page worth bookmarking and visiting regularly.