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A lesson in information disclosure

Jessica Cumming considers how the Freedom of Information Act 2000 impacts academies

Posted by Lucinda Reid | September 23, 2016 | Law, finance, HR

The Freedom of Information Act 2000 (FOIA) was introduced to promote transparency and accountability across all areas of the public sector. This historically includes governing bodies of maintained schools and more recently also includes academy trusts, as a result of the Academies Act 2010. 

All academies have a legal duty to comply with any written request (emails and faxes included) for access to information they hold. They must provide advice and assistance to any requesting person regardless of whether that request specifically mentions a right under the FOIA and whether or not the requesting person specifies the reason for wanting the information. 

Is the request for information a valid FOIA request?

Upon receipt of a request for information the first step is to consider whether the request is a valid. The duty to comply with a request under the FOIA will only apply when a request has been made in writing, which states the requesting person's name and correspondence address and describes the information requested in sufficient detail to make it both identifiable and locatable. The information requested must not be covered by any other legislation and the academy must 'hold' the information – which means it has been created by the academy, received by them from another body or person, or is being held by another body on their behalf.

What are the circumstances where an academy is not required to comply with a valid FOIA request? 

There are a number of circumstances when an academy is not required to comply with a request for information under the FOIA including where:

  • The information requested is not held by the academy 
  • The cost of complying with the request exceeds £450 
  • The request is considered vexatious or repeated 
  • Where one or more of the specified FOIA exemptions apply

Exemptions under FOIA

This is not an exhaustive list, but the exemptions most likely to apply to academies include:

  • The information is accessible by other means, for example it is published as part of a publication scheme (as further detailed later in this article)
  • The request is in respect of personal information belonging to the enquirer and as such must be dealt with under the Data Protection Act 1998, and not the FOIA
  • The information requested is 'environmental information' covered by the Environmental Information Regulations 2004 and so must be dealt with under the procedure set out in those regulations 
  • The information is a trade secret or would be likely to prejudice the commercial interests of any person or body (including the academy/academy trust) 

Where an academy refuses a request on the basis of any of the circumstances detailed above, the person dealing with the request must immediately send the enquirer a refusal notice stating why the request has been refused. Template refusal notices can be found on the Information Commissioner's website.

Timeframe to respond 

If further to receiving a valid FOIA request for information, it is determined that the academy holds the information and an exemption does not apply, a reasonable search should be made for the information requested without having to incur unreasonable expenditure to acquire the information. A valid request must be complied with promptly and within the legal limits of 20 working days (excluding any day which is not a school day) or 60 working days from receiving the request (whichever is the earliest). A charge can be made for providing the information but Department for Education (DfE) guidance recommends that enquiries should be responded to free of charge and charges only made where the costs are significant (the imposition of such charges will provide the academy with further time to respond until payment is received).

Non-compliance – the consequences 

If an academy decides to refuse a request for disclosure, the enquirer may contact them setting out his/her expression of dissatisfaction. Following receipt of such a complaint, the academy should deal with the matter using its existing complaints procedure (even if the enquirer does not specifically request a review to be undertaken). If the enquirer is still not satisfied with the findings after this stage, the enquirer has the right to make an appeal to the Information Commissioner for further investigation into the matter 

Where the Information Commissioner finds that an academy has failed to comply with its obligations under the FOIA, he/she can issue a legally enforceable decision notice setting out the steps to be taken in order to put things right. 

If the academy fails to comply with the terms of the decision notice, the matter can be referred to the High Court which has the power to treat bodies subject to the FOIA as if they have been in contempt of court. It must also be noted that it is an offence to wilfully conceal, damage or destroy information in order to avoid answering an enquiry. In these circumstances, the academy trust and any person employed by it, or who is an officer of it, may be at risk of criminal proceedings. 

Top tips to ensure compliance with the FOIA 

Academy trusts are responsible for ensuring its academy/academies comply with FOIA. The following tips should help achieve this: 

1. Agree the FOIA publication scheme. The FOIA requires every public authority (including academies) to make certain information publicly available under a publication scheme. The DfE have provided a model publication scheme that academies can use which sets out some detail about information academies must make public by placing the scheme or link to it on their website. Use of such a scheme should help pre-empt many requests for information under the FOIA. 

2. Ensure that all members of staff are aware of the FOIA requirements. An access policy should assist with this which sets out how the academy proposes to deal with requests;

3. Dedicate a member of staff to be the delegate responsible for FOIA compliance. Make sure that all colleagues are aware of this person and the importance of channelling all requests and information to them.

4. Give notice of charges. Check before supplying any information requested, provide written notice of any charge that will be payable. 

5. Ensure a complaints procedure is in place. This will ensure that any complaint as to the dealing of requests for information will be fair and impartial. 

6. Ensure that written records are kept. Keep records of all requests, correspondence, disclosures and refusals to disclose, along with any reasons for why a decision has been made. 

Jessica Cumming is a solicitor at Gordons law firm

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