Section
9
How
to get access to information & records using the Freedom of
Information (FoI) Act
9.1
Introduction
The Freedom of Information Act, 1997 was passed into law on the 21st April 1997. The Act came into, and continues to come into, effect on a rolling basis, as follows:
· From 21 April, 1998 for Government Departments and Offices,
· From 21 October 1998 for Health Boards and Local Authorities;
· From 21 October 1999 for Voluntary Hospitals and some voluntary bodies providing services to people with intellectual disability,
· From 21 October 2000 for a number of bodies including a number providing services to people with physical & sensory disabilities (this includes the Cheshire Foundation).
Legal rights: Under the Act, any member of the public (including current and former Cheshire service users and staff) is entitled to apply for access to information held by the Foundation which is not otherwise publicly available. Each person has three new legal rights to:
1. Request access to records held by the Foundation,
2. Have personal information corrected where it is inaccurate, incomplete or misleading,
3. Be given reasons for decisions made by the Foundation directly affecting themselves.
Records coming within the scope of the Act: The following records come within the scope of the Act:
1. All records held by the Foundation which were created after 21 April 1998.
2. Any record created before 21 April 1998, where this record is necessary for the understanding of a record created after the 21 April 1998.
3. All records containing personal information regardless of when the records were created.
4. All staff personnel records created after 21 April 1995. Earlier records are also covered where these are liable to be used in a way that might adversely affect the interests of the member of staff concerned.
Appeals: The Act also provides for the establishment of an independent Information Commissioner who has the power to review any decisions relating to Freedom of Information made by a public body.
9.2
Our obligation to help you in making a request
The Foundation is required
under the Act to give reasonable assistance to any person seeking
a record (Section 6.2). In practice, this means that
Cheshire Foundation staff will always act in the spirit of the
legislation in promoting access rather than seeking to use the
letter of the law to restrict access.
9.3
How to make a request under the Freedom of Information Act
To make a request under the Act, please follow these steps:
· Put your request in writing.
· State that your request is being made under the Freedom of Information Act 1997. It is helpful in processing your request if you specify which legal right you are exercising. For example,
1. If you are requesting access to information, please mention Section 7 of the Act,
2. If you are asking for personal information to be corrected, please mention Section 17,
3. If you are asking for reasons for a decision affecting you, please mention specify Section 18
· Ensure you give sufficient particulars to enable the record to be identified. For example, full name of individual, relevant dates, name of Cheshire Centre, if relevant, etc. If you have difficulty in identifying the precise records which you require, contact the manager of any Cheshire Centre or the Foundation’s Freedom of Information Officer for help.
· State how you want to see the records. For example, you may want to
1. See the original record,
2. Get a copy of the record,
3. Get a transcript of the information concerned
4. Get a computer disc or other electronic device containing the information
5. Use some other method which you should specify.
· Send your request to the Chief Executive Officer at the address shown in Appendix 1
Note:
You do not have to give reasons for requesting access to records
and no person has the right to ask you for reasons.
9.4
Acknowledgement of requests
The Foundation’s Freedom of Information Officer will acknowledge in writing your request within two weeks of receiving it. The letter of acknowledgement will state the period within which a decision must be made, your rights to have any decision reviewed, the procedure governing the exercise of those rights and the time limits which apply.
9.5
How decisions on requests are made
Within four weeks of receiving a request for access (longer periods can apply in exceptional cases), the Freedom of Information Officer will do the following:
· Decide whether to grant or refuse the request.
· Decide to grant only part of the request.
· If the decision is to grant the request, the FoI Officer will also decide how to give access to the records.
· Notify you in writing (or where necessary using some other appropriate method of communication).
· Where your request is refused, you will be given the reasons for refusal.
· Give you details of your rights to internal review and appeal.
9.6
Your legal rights to internal review and external appeal
The Act sets out a series of exemptions designed to protect the public interest. If the Foundation refuses all or part of your request because these exemptions apply, you have the right to appeal that decision. Decisions in relation to deferral of access, charges, method of access, etc. may also be subject to appeal. Details of the appeals mechanisms are as follows:
Internal Reviews: You may seek internal review of the initial decision. This review will be carried out by the Chief Executive Officer. Reviews may be requested in the following circumstances:
· You are dissatisfied with the initial response received from the Freedom of Information Officer, i.e., refusal of information, the form of access specified, etc., or
· You have not received a reply within 4 weeks of your initial application. This lack of reply is deemed by the Act to be the same as a refusal of your request and allows you to proceed directly to the internal review stage.
Requests for internal review should be submitted, in writing to the Chief Executive Officer at the address shown in Appendix 1.
A request for internal review must be submitted within 4 weeks of the initial decision. The Foundation must complete the review within 3 weeks.
Internal reviews must normally be completed before an appeal can be made to the Information Commissioner.
Review by the Information Commissioner: Following completion of the internal review, you may seek independent review of the decision from the Information Commissioner. Also, if you have not received a reply to your application for internal review within 3 weeks, this is deemed by the FoI Act to be the same as a refusal and you may appeal the matter directly to the Information Commissioner.
The Information Commissioner’s decision is final unless a point-of-law is involved in which case referral to the High Court is possible.
Appeals must be in writing and should be sent to the Information Commissioner at the address shown in Appendix 1.
Appeals to the High
Court: Decisions of the Information Commissioner are
normally final unless a significant point-of-law arises in the
case. In this situation, a referral to the High Court is
possible.
9.7
Fees which are chargeable in certain circumstances
The Freedom of Information Act allows for fees to be charged in certain circumstances. The Cheshire Foundations policy in relation to fees is as follows:
Personal information: Where personal information is involved, no fees will be charged time spent locating records. No charge will be made for copying records unless a large number of records are involved.
Non-personal information: No charge will apply in respect of the time spent considering the request. However, the Foundation reserves the right to charge for the time spent in efficiently locating and copying records, based on the standard rates in operation at the time of the request.
Deposits: The Foundation may charge a deposit of 20% where the total fee is likely to exceed £40.00. In these circumstances, the Foundation will, if requested, assist the member of the public to amend the request so as to reduce or eliminate the amount of the deposit.
Waiving of charges: Charges may be waived in the following circumstances:
· Where the cost of collecting and accounting for the fee would exceed the amount of the fee.
· Where the information would be of particular assistance to the understanding of an issue of national importance.
· In the case of personal information, where such charges would not be reasonable having regard to the means of the requester.
Scale of fees: Fees are currently set as follows, in accordance with Statutory Instrument Nos. 139 of 1998 and 522 of 1998:
· £16.50 (20.95 euro) per hour - search and retrieval fee
· 3p (0.04 euro) per sheet in relation to a photocopy
· 40p (0.51 euro) in relation to a 3.5-inch computer diskette
· £8 (10.16 euro) in relation to a CD ROM,
· £5 (6.35 euro) in relation to a Radiographic X-Ray.