10 Sep 2018

On 4 July 2018, the Cabinet Office published a new Code of Practice under section 45 of the Freedom of Information Act 2000 (Section 45 Code of Practice). This replaces the previous Section 45 Code of Practice published in 2004[1].

The new Section 45 Code of Practice[2] follows a public consultation exercise which closed in February 2018. It also implements the Government's response to the recommendations made by the Independent Commission on Freedom of Information in March 2016[3] that the Government update the Code to ensure it was adequate and up to date to reflect 10 years development of best practice and case law since the Freedom of Information Act 2000 (FOIA) first came into force.

Public authorities who are subject to FOIA, must have regard to the Section 45 Code of Practice, which provides guidance on the discharge by public authorities of their functions and responsibilities under Part I of FOIA. Failure to comply with the Section 45 Code of Practice will not itself constitute a breach of FOIA. However if a public authority's practices do not comply with the Code, the Information Commissioner has the power under section 48 of FOIA to issue a Practice Recommendation setting out steps that the public authority needs to take to comply with the Code.

The new Section 45 Code of Practice provides guidance to public authorities on the following matters concerning Part 1 of FOIA:

1. The Right of Access, including guidance on determining whether information is held, the criminal offence which can be committed under section 77 (deliberately altering, defacing, blocking etc disclosure), what are valid requests, when fees may be charged and how information should be communicated to requesters.

2. Advice and Assistance, including recommending how to provide advice and assistance to prospective requesters, clarifying requests, suggesting how requests can be refined to come within the cost limit and the approach to transferring requests to other public authorities.

3. Consulting with Third Parties, clarifying that this will often be necessary in order to understand the sensitivity of information.

4. Time Limits for responding to Requests, suggesting that it is generally best practice to only extend the timescales where further time is required to consider the public interest test for no more than a further 20 working days. The Code does however acknowledge there will still be circumstances, including due to complexity or volume, when a longer extension may be appropriate.

5. Internal Reviews, reminding public authorities it is best practice to have an internal review process in place and providing guidance on the timescales within which internal reviews should generally be accepted and responded.

6. Cost Limit, setting out what activities can and must not be included when calculating whether compliance with a request would exceed the cost threshold (still £600 for Central Government and £450 for other public authorities). The Code also provides guidance on how to carry out searches, recommending that attention is generally focussed on locations where information is most likely to be held.

7. Vexatious Requests, providing substantive guidance on how to deal with burdensome requests, reflecting the development of case law in this area, including providing guidance on when resource intensive requests, which would not otherwise be caught by the cost threshold, can be refused for being vexatious.

8. Publication Schemes, recommending that as a matter of best practice, public authorities should publish two new specific types of data in addition to that required under the Information Commissioner's model publication scheme:

  • In the case of public authorities with over 100 FTE employees, various statistics on compliance with FOIA request handling, which should be published quarterly, including the number of requests received, those complied with in full, in part and how many were complied with within the required timescales
  • Data about the pay and benefits of senior executives, including pay (annually), expenses (quarterly), benefits in kind (annually) and details of hospitality received and from whom. Although many public authorities will already be publishing this type of data under sector specific transparency requirements, this formal best practice recommendation may be new for some sectors.  

9. Transparency and confidentiality obligations in contracts and outsourced services. This section has been updated considerably and more    closely reflects the ICO's more recent guidance in this area. It also addresses some of the concerns raised by the Independent Commission for Freedom of Information, in respect of which they fell short of making recommendations about. In particular the Code provides guidance on provisions which should be included in contracts between public authorities and third party contractors, including:

  • identifying in contracts what information is held by the contractor on behalf of a public authority, which is information that will be subject to FOIA
  • putting in place arrangements to ensure the public authority has access to this information
  • ensuring contracts (or a memorandum of understanding) sets out what the consequences are if the contractor fails to comply with its obligations to assist public authorities with their FOI duties.

10. Communicating with a Requester, providing guidance about what response, refusal and internal review outcome letters should contain.

11. Datasets, providing guidance on when FOIA applies to Datasets and when re-use of Datasets is governed by the Re-use of Public Sector Information Regulations 2015, including a detailed guidance on re-use in Annex B. Guidance on Datasets was previously contained in a separate 2013 Datasets Code of Practice[4], which has now been withdrawn.

Public authorities should review the new Section 45 Code of Practice and their current request and internal review handling procedures to ensure they comply with the guidance set out in the Code. 

Freedom of Information (Extension) Bill 2017-19, second reading October 2018

In July 2017, a private members bill was introduced which seeks to make housing associations, local safeguarding children boards, Electoral Registration Officers, Returning Officers and the Housing Ombudsman public authorities for the purpose of FOIA.

The Bill also seeks to make information held by public sector contractors subject to FOIA by deeming that contracts are subject to a "specified disclosure provision". This provision would stipulate that all information held in connection with the performance or proposed performance of the contract by, the contractor, a sub-contractor, and any other person acting on behalf of the contractor or subcontractor is, (notwithstanding any provision to the contrary in the contract), deemed to be held on behalf of the public authority for the purpose of FOIA or the Environmental Information Regulations 2004 (EIR).

The Bill was due to receive its second reading on 15 June 2018, but was denied parliamentary time by filibustering tactics. Second reading has now been rescheduled for 26 October 2018. Private members Bills rarely however manage to get enough parliamentary time to make it onto the statute book. In light of the new Section 45 Code of Practice which does address some of the same issues the Bill seeks to address in relation to public sector contracts, it seems unlikely that the Bill will therefore succeed.

Housing Associations subject to EIR?

In another recent development, on 14 August 2018, the Information Commissioner issued a Decision Notice (FER0735350) determining that a housing association - Poplar Housing & Regeneration Community Association, was a public authority for the purpose of EIR. This is a very current and developing area of law, as in a previous Decision Notice (FER0700353) issued on 14 July 2018, the Information Commissioner concluded that another housing association, Richmond Housing Partnership, was not a public authority under EIR. 

It remains to be seen whether either of these Decision Notices will be appealed to the First-Tier Tribunal, but assuming there is an appeal, the Information Commissioner herself in the Poplar Decision Notice acknowledges that the arguments are finely balanced (see paragraph 33). It therefore seems likely the question of whether or not EIR applies to housing associations will not be settled for some time yet.