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Freedom of Information Act and Environmental Information Regulations Guidance Update

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11/09/2013

A brief summary of the new guidance on the Freedom of Information Act (FOIA) and the Environmental Information Regulations (EIR) since our last Local Government Newsletter.

Since our last Local Government Newsletter the Information Commissioner’s Office (ICO) has reviewed and updated its guidance on several key FOIA and EIR issues. In particular, it has:

  • updated its guidance on vexatious, manifestly unreasonable and repeat requests under FOIA and the EIR, following recent Upper Tribunal rulings which had criticised the existing guidance. Instead of characterising vexatiousness using five characteristics, the revised guidance sets out 13 indicators of vexatiousness, which are explicitly not meant to be conclusive. It also emphasises that public bodies may refuse requests as manifestly unreasonable or vexatious wherever they believe the request to be disproportionate or unjustified, rather than as a last resort
  • expanded its guidance on the personal information exemption in section 40 of FOIA and the exception in regulation 13 EIR
  • updated its guidance on the information reasonably accessible by other means exemption under section 21 of FOIA, including examples of circumstances where information can be considered to be reasonably accessible by another route
    updated its guidance on the section 30 exemption (investigations and proceedings) and the section 31 exemption (law enforcement), in particular how they interact and how section 30 protects criminal investigations and proceedings conducted by public authorities
  • provided clarification on what constitutes a ‘reasonable amount’ under the charging regime found in regulation 8 EIR. It has also generally updated its guidance on how to comply with the charging regime and how to comply with information on emissions under regulation 12(9) EIR
  • updated its guidance on the retention and destruction of information requested under FOIA and EIR, in particular emphasising the importance of disposal schedules
    updated its guidance on responding to requests under FOIA so that public authorities avoid inadvertently disclosing personal data hidden in datasets, in particular the use of pivot tables for any disclosures or data sharing involving personal data.

From 1 September new obligations on public authorities in relation to publishing datasets come into force. The Protection of Freedoms Act 2012 requires public authorities to publish datasets as part of their publication schemes. The ICO has updated its guidance on publication schemes and its model publication scheme, plus sector-specific definition documents, including for local authorities and schools.

You need to make sure that the new text regarding datasets in the model scheme and definition documents is inserted into your own publication schemes and guides to information.

The ICO Guidance can be found here.