FREEDOM OF INFORMATION POLICY Prepared by:
Eve Scott & Liz Harrison
Corporate Services Date Approved: COMMITTEE:-
11th October Governance Committee.
Version No. Approved:
Third Domain: Governance & Fourth Domain: Patient Focus Reference to Standards for Better Health Domain C7, C9, C14, C16 Core/Development standard Performance indicators
1. 2. 3.
All FOI requests responded to within 20 working days No untoward incidents regarding the release of information A diminishing number of requests.
CONTENTS Section No.
History of Document
Associated Policies and Procedures
Aims & Objectives
Scope & Policy Guideline
Roles and Responsibilities 7.1.1; Director of Corporate Services 7.1.2; Corporate Services Manager 7.1.3; Other Directors and Line Managers 7.1..4; All Staff 7.1.5 Information Governance Group
Advice and Assistance to applicants.
Exemptions 7.4.1; Types of Exemptions
Public Interest Test.
Public Sector Contracts
Complaints about the outcome of access requests
Training and awareness
4 4 5 5 5
Charges for supplying information
7.10; Monitoring of FOI requests 7.11
7.3.1; Classes of information. 7.3.2; Management of the Publication Scheme
3 3 3 3
5 5 6 6 6 6
7.12; Legal advice
References & Bibliography
Freedom of Information Exemptions
Approval Committee: Version No: Date Approved:
1. History of Document This is Version One of this policy.
2. Introduction The Freedom of Information Act (FOI) enables members of the public to scrutinise the decisions of public authorities more closely and make sure that services are delivered properly and efficiently. From the January 1st, 2005 the Act replaced the non-statutory Code of Practice on Openness in the NHS. The main features of the Act are: • A duty placed on public organisations to maintain a Publication Scheme. • A general right of access to all recorded, non-personal, information held by the PCT (subject to certain exemptions). • The establishment of an Information Commissioner’s Office to oversee compliance with this and the Data Protection Act 1998.
3. Associated Policies and Procedures This policy is underpinned by the • Procedure for Responding to an Access Request under the Freedom of Information Act. It should be read in conjunction with the following polices and procedures: • Records Management Policy • Code of Conduct on Confidentiality • Procedure for handling an access request for a health record. • Incident Reporting Policy. • Complaints Policy and Procedure • PCT publication scheme • Media Handling Policy
4. Aims and Objectives This policy underpins Kirklees PCT’s aim to be an open and transparent as far as reasonably practicable in all that it does. However, individuals have a right to privacy and confidentiality and this policy also aims to be compliant with the common law duty of confidentiality and statutory provisions that prevent disclosure of personal information, eg The Data Protection Act 1998.
5. Scope and Policy Guideline This policy must be followed by all employees of Kirklees PCT. It is applicable to specific pieces of information to which the general public now have right of access under the FOI Act. It should be noted that information that has routinely been given to patients and clients as part of their normal care does not fall into this category and should still be given freely without the need to follow the Procedure for Responding to an Access Request under the FOI Act. Approval Committee: Version No: Date Approved:
The exemptions outlined in the FOI Act will be applied appropriately to make sure that the PCT is able to carry out its duties effectively.
6. Standard Definitions Types of Exemptions. The Act specifies several different exemptions and when they can be applied. There are two types of exemption: • An absolute exemption means that the PCT does not need to confirm or deny to the applicant that they hold the information. • A non-absolute exemption means that the PCT must consider the public interest before making a decision to publish or not.
Public Interest Test The Information Commissioner states that “In effect something in the public interest is something which serves the interests of the public. When applying the test, the public authority is simply deciding whether in any particular case it serves the interests of the public better to withhold or to disclose information.”
Roles and Responsibilities
7.1.1 Director of Corporate Services. The Director of Corporate Services has Board level responsibility for FOI issues and will ensure that the Trust Board is appraised as necessary and that issues decided at Board level are actioned appropriately. 7.1.2 Corporate Services Manager The Corporate Services Manager has overall responsibility for the implementation of this policy and for monitoring and reviewing its effectiveness. They will act as the PCTs’ lead for the Freedom of Information Act and monitor that all FOI requests are responded to within the required timescales and an audit trail is maintained. 7.1.3 Other Directors and Line Managers. All managers are responsible for making sure that this policy is disseminated and implemented within their area of responsibility. Any advice or help regarding this policy or the Freedom of Information Act can be obtained from the Corporate Services Manager. Directorate and Department managers must make sure that the information provided to the Corporate Services Manager for inclusion in the Publication Scheme (Refer Section 7) is the most up to date available. This is especially important with documents such as policies and procedures and information leaflets. It will be assumed that the published documents are the most up to date unless the appropriate managers state otherwise. 7.1.4 All Staff All employees of the PCT are obliged to adhere to this policy. They must make sure they respond to requests for information in a timely fashion to ensure compliance with the timescales laid down within the FOI for responses. Further guidance is given in the PCT’s Procedure for Responding to an Access Request under the Freedom of Information Act. Approval Committee: Version No: Date Approved:
7.1.5 Information Governance Committee The Information Governance Committee will regularly monitor the progress in relation to Freedom of Information. The Committee will have Freedom of Information Act as a standing item on its agenda. Updates on requests under the Freedom of Information Act will be received by this Committee. 7.2 Advice and Assistance to Applicants Under Section 16 of the Act the PCT has a duty to provide advice and assistance to applicants and would-be applicants. The Trust will do this taking into account other statutory duties, e.g. the Disability Discrimination Act 1995. Such issues will be explored at the point of contact with the applicant. 7.3 Publication Scheme Kirklees PCT has produced a "Publication Scheme" detailing all the information currently available from the PCT under FOI. This Publication Scheme acts as an index to this information, and are ordered logically into "classes" of Information. These classes relate to areas of activity or departments within the PCT. The publication scheme exists as both a paper document, which is freely available upon request, and also as part of the PCTâ€™s publicly available website. This can be accessed by clicking of the following link: www.kirklees-pct.nhs.uk 7.3.1
Classes of Information
No classes of information can be added or removed without the approval of the Information Commissioner. If anyone feels a class should be added or removed they should make their case to the Information Governance group who will consider the request.
The current classes of information are The NHS and how we fit Who are we Financial and funding information Corporate information Aims, targets and achievements Our services The Primary Care Trust and independent contractors Reports and independent enquiries Policies and procedures Public involvement and consultation Regular publications and information for the public Complaints Human resources Communications with the press and media releases Environmental information 7.3.2 Management of the Publication Scheme The Corporate Services Manager is the formal contact point for the Information Commissioner and will manage the publication scheme. The documents available through the Scheme will be the final, ratified versions only. Documents must not be published in draft format. The Scheme will evolve over time and staff are encouraged to recommend information for inclusion to the Corporate Services Manager. Approval Committee: Version No: Date Approved:
The Scheme will be revised and information added to it if several valid requests are made under the general rights of access and that information is not already in the scheme. The scheme as a whole will be reviewed annually by the Information Governance Group. 7.4 Exemptions. Kirklees PCT will endeavour to use these exemptions and make sure they are not misused. Any decision to use the exemptions will be taken by the Corporate Services Manager after consultation with other colleagues as appropriate. A list of the exemptions available under the FOI Act are appended to this document. All or part of a request can be transferred to another public authority if it becomes apparent that the PCT does not hold the information concerned. A transfer should only occur if it has been established that the other authority does hold the information concerned. The PCT must write to the applicant and explain that it does not hold the information and give the applicant an indication of which organisation does hold the information. NB: A request must not be transferred outside the PCT without the applicants consent.
7.5 Public Interest Test The public interest must be considered in every case where a non-absolute exemption applies. The public interest will vary with each request and the exemption being considered. The PCT will consider the public interest on a case by case basis and seek advice from relevant professionals as necessary (this may include colleagues, legal advice and the Patient and Public Involvement Forum). The public interest does not include protecting an authority or individual from embarrassment. There is no exemption under the Freedom of Information Act 2000 for embarrassment. 7.6 Public Sector Contracts The PCT will make sure that the terms of any contract they enter into with a third party do not in any way compromise the PCT’s obligations under the FOI Act. The PCT cannot ‘contract out’ its obligations under the Act. The Lord Chancellor's Code of Practice states that “unless an exemption provided for under the Act is applicable in relation to any particular information, a public authority will be obliged to disclose that information in response to a request, regardless of the terms of any contract”. Contractors may put pressure on the PCT to accept confidentiality clauses covering information about the terms of the contract, its value and performance. Where it is necessary to include a non-disclosure provision in a contract (exceptional circumstances only) an option could be to agree a schedule with the contractor that clearly identifies the information that should not be disclosed. The PCT will have to be aware that any restrictions on disclosure in such a schedule could be overridden by the obligations of the Act. Approval Committee: Version No: Date Approved:
The PCT should not hold information ‘in confidence’ that is not confidential in nature. The confidential information exemption under the Act only applies if the release of such information constitutes a breach of confidence actionable in a court of law. 7.7 Complaints Initial complaints about the handling of a request for information under the Act should follow the PCT complaints procedure. If an applicant is dissatisfied with the outcome of this process, they must be given the details of the Office of the Information Commissioner and informed of their right to take their complaint to that Office. 7.8 Training and awareness Freedom of Information will be added to the PCT’s induction and essential training programmes. 7.9 Charges for Supplying Information. The Government have said that Health Service Organisations will not be able to charge for most requests made under the FOI Act. If the information takes less than two-and-a-half days' work to collate, estimated to cost £450, it must be made available free of charge. If costs rise above £600, a charge can be made for the work. 7.10 Monitoring of FOI requests. The Information Governance Group will monitor the trends of requests for PCT information on a six monthly basis and report this as a key performance indicator to the Governance Group. 7.11 Records Management Good records management is the key to complying with this Act. The PCT has a Records Management Strategic Framework and a Records Management Policy for dealing with records management that are consistent with: a) HSC 1999/053 – For the Record: Managing records in NHS Trusts and Health Authorities b) The Lord Chancellor’s Code of Practice on the Management of Records under Section 46 of the Freedom of Information Act 2000 (November 2002) Good records management should allow the PCT to deal with requests in an efficient and accurate manner. Also, not knowing whether or not a record is held is not a valid reason for not complying with a request. 7.12 Legal Advice The Corporate Services Manager will decide when to seek legal advice after discussing the issues with appropriate people within the PCT.
8. References & Bibliography The following documents are referenced in this policy: • Freedom of Information Act 2000 • Data Protection Act 1998 • HSC 1999/053 – For the Record: Managing Records in NHS Trusts and Health Authorities • Lord Chancellor’s Code of Practice on the Discharge of Public Authorities’ Functions under Part I of the Freedom of Information Act 2000, issued under section 45 of the Act (November 2002) • Lord Chancellor’s Code of Practice on the Management of Records under Approval Committee: Version No: Date Approved:
section 46 of the Freedom of Information Act 2000 (November 2002)
Approval Committee: Version No: Date Approved:
Appendix 1: Exemptions available under Part II of the Freedom of Information Act 2000 Kirklees PCT will endeavour to use these exemptions appropriately and sparingly. • Information accessible to applicant by other means – it may be reasonably accessible even if the applicant has to pay for it. • Information intended for future publication – covers information held with a view to publication by the public authority or another person at some future date. • Information supplied by, or relating to, bodies with security matters – this is aimed at the Security Services, Government Communications Headquarters and the National Criminal Intelligence Service. • National security – information can be exempt if it is required to safeguard national security. • Defence – information can be exempt if its release would affect the defence of the British Isle, any British colony or the capability and effectiveness of the armed forces. • International relations – information is exempt if its release would prejudice relations with another State, international organisation, international court or the interests of the UK abroad. • Relations within the United Kingdom – covers information that might prejudice relations between the administrations within the UK. • The economy – covers information that would prejudice the economic interest of the UK or of any administration in the UK. • Investigations and proceedings conducted by public authorities – covers information held for an investigation that the authority has a duty to conduct to decide if a person should be charged with or found guilty of an offence, relates to criminal proceedings that the authority has power to conduct or relates to civil proceedings brought by or on behalf of the authority. • Law enforcement – information is exempt if its release would prejudice law enforcement. This includes the prevention and detection of crime, apprehension and prosecution of offenders, administration of justice, the operation of immigration controls and the security of prisons. • Court records – covers documents in the custody of a court, created by a court or served on or by a public authority for court proceedings. • Audit functions – this applies to authorities that have functions relation to the audit of other authorities’ accounts and the examination of efficiency and effectiveness of the use of their resources. This does not cover internal auditing functions of authorities. • Parliamentary privilege – to avoid infringing the privileges of either House of Parliament. • Formulation of government policy – relates to government departments and the National Assembly for Wales. • Prejudice to effective conduct of public affairs – information is exempt if, in the opinion of a qualified person, it would prejudice how the PCT conducts its public affairs. • Communications with Her Majesty, etc. and honours – covers Her Majesty, other members of the Royal Family. • Health and safety – information is exempt if its disclosure would endanger the physical health, mental health or safety of any individual. • Environmental information – covers information that can be accessed via the Environmental Information Regulations. • Personal information – where the applicant is the subject of the information the request must be dealt with in accordance with the Subject Access rights provided in the Data Protection Act 1998. Where the applicant is not the subject of the information, then it is exempt if disclosure if it would breach the Data Protection Act. • Information provided in confidence – if the disclosure of the information would constitute a breach of confidence that could be lead to action against the PCT. • Legal professional privilege • Commercial interests – information is exempt if it constitutes a trade secret or would prejudice or be likely to prejudice the commercial interests or any person or organisation. Prohibitions on disclosure – information is exempt if its release is prohibited under any enactment, it is incompatible with community obligation or would constitute contempt of court.
Approval Committee: Version No: Date Approved: