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Spotlight on - Freedom of Information
6 June 2009
Despite having been in force since 1 January 2005, and as such,
not unfamiliar to many of us, the ways in which the Freedom of
Information Act (FOIA) is used, and the types of information being
sought from public bodies is continuously changing.
We have recently been instructed by various Trusts to advise on
requests for information made under the FOIA, and have noticed a
change in the types of requests that are received by Trusts. The
public is becoming increasingly savvy about the sort of information
that can be extracted from public bodies, and it is important that
Trusts are able to recognise and deal appropriately with these
requests.
It will have been difficult to avoid the recent media coverage
in connection with Parliamentary expenses and the extent to which
information in relation to MP’s finances has been made available to
the public in recent weeks. We have noticed a similar approach
being taken in respect of health service bodies – that they are
being asked to provide more detailed information to procedures and
types of expenditure that perhaps has not been previously sought
under the FOIA. A number of Trusts have been asked for details in
relation to their expenditure for professional consultancy services
and advice, and this has since found its way into sector
publications and journals. While this in itself may not seem
problematic, there are a number of issues that must be considered
before any disclosure is made including:
- Whether any of the available exemptions under the FOIA may
apply to prevent the information being made available
- Any necessary referrals to the Information Commissioner
- Issues surrounding the provision of information connected with
other public bodies or associated NHS Trusts (for example, a
provider arm where a request for information is received by the
commissioner)
- Whether there are any contractual terms and conditions between
Trusts and their external advisors in connection with information
being sought under the FOIA (there may be a risk of legal action
from aggrieved companies in the event that these terms are not
considered)
- For what purpose is the information being sought? This may
impact on the duties placed on public bodies to assist and advise
members of the public in relation to their requests under the FOIA
(not simply to refuse to provide information where an exemption
applies)
- The interaction with personal data which will be protected by
the terms of the Data Protection Act 1998
- The requirements relating to consent and access to medical
records (if appropriate to the request)
- Whether further information or a narrowing of the request would
assist with the provision of information to those making requests,
and if so, how best to ask for clarification of requests
Following the recent publicity surrounding Freedom of
Information, it is likely that the NHS will see a rise in requests
for information of increasing numbers and complexity. Those who are
more creative will continue to use the legislation to obtain
information that perhaps has never been considered of interest to
the public before. We are able to assist you in dealing with these
more complex requests for information and our team is able to
provide fast and effective advice as to how best NHS bodies can
comply with their duties under the legislative framework, without
being exposed to additional risks.
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