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Essential Guidance on Freedom of Information Act 2000


Introduction

The Freedom of Information Act 2000 (FoIA) comes into full force on 1 January 2005. The Act gives a right of access to anyone, anywhere in the world, to recorded information held by public authorities.

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Purpose of this guidance

The purpose of this guidance is to promote staff awareness and explain how to handle requests for information under the FoIA. The CPS strategy to manage requests is to allow Areas and staff to exercise discretion whilst maintaining a centre of expertise to deal with difficult exemptions and provide guidance. In order to monitor the effectiveness of these arrangements, all FoIA requests will need to be either reported or referred to the HQ FoIA Unit. The CPS can expect to receive requests from journalists, groups interested in specific issues, individuals about other people's cases and those seeking information about themselves.

It is anticipated that a number of requests will be focused on cases that are controversial or are subject to the CPS complaints procedure. It is suggested that Unit Heads and others in an Area who deal with complaints familiarise themselves with this guidance and the FoIA by clicking on the links provided.

In addition all managers will want to ensure that their staff can recognise FoIA requests and know where to seek advice.

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Rights of access

The FoIA creates two important rights of access for any person making a request for information to a public authority:

  • To be informed in writing by the authority whether it holds the information of the description specified in the request, and
  • If that is the case, to have that information communicated to them.

These rights are fundamental to the FoIA and they are legally enforceable. However, they are subject to important limitations in the form of exemptions.

From 1 January 2005, the statutory right of access to information under the FoIA, enables a person to write to the CPS asking for information and to have that information communicated to them. Information can be provided in the form of a summary of the information, a redacted version of a document, or a copy of a document, subject to exemptions within the FoIA. In certain circumstances, the CPS can apply an exemption. This allows the CPS to refuse to provide the information to the requester and in some instances the CPS can refuse to confirm or deny that the CPS holds the information.

NB: Applicants do not have to state that they are making a request under the FoIA.

The time limit for responding to a request for information is 20 working days.

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Definition of a request

Requests for information under the FoIA, must:

  • Be in writing, (includes email and fax)
  • Provide a name and address for correspondence, either an individuals name or that of a company/organisation
  • Describe the information requested
  • Include payment where appropriate

The CPS has existing systems for providing documents and information as part of the prosecution process. Where information would already be provided as part of the normal business process it should continue to be handled in the same way, and not count as a FoIA request.

Requests from individuals for information about themselves will continue to be classed as Data Protection Act (DPA) subject access requests and referred to the DPA Officer at HQ. If a defendant in a case wishes to obtain a copy of the papers that were served on them as part of criminal proceedings, then the CPS office concerned should provide these outside of the Data Protection Act remit, free of charge. All other requests for information in the form detailed above, made to any part of the CPS will be FoIA requests and must be treated as such.

The FoIA does not include an absolute exemption for all case related material. Relevant exemptions will be applicable in many cases but they have to be considered in each case. A public interest test applies to many exemptions, including the exemption for information held for a criminal investigation or criminal proceedings which the public authority has power to conduct.

Please refer to the Information Commissioner's Office website for a copy of the FoIA and guidance on exemptions: www.informationcommissioner.gov.uk or the Department for Constitutional Affairs (DCA) for detailed guidance on the Act relating to Central Government: www.dca.gov.uk/foi/

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Publication scheme

Since June 2003 the FoIA has required public authorities including the CPS to adopt and maintain a publication scheme, specifying the classes of information that the CPS already publishes or intends to publish. The CPS publication scheme includes a wide array of CPS policies and documents including the Legal Guidance and other manuals. These documents, previously only available internally, are openly available on the CPS website. Being proactive and publishing in this way enables CPS to exploit to optimum effect a key exemption under the FoIA that allows public authorities not to respond to individual requests for information if it is reasonably accessible to the applicant by other means (eg published on CPS website).

Find out about the CPS Publication Scheme on this website.

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Statement on the CPS approach to the Freedom of Information Act

During the course of a criminal case, the Crown Prosecution Service will provide information under a number of statutory and non-statutory regimes to others involved in the criminal justice process. This information can take the form of either evidential or unused material. The provision of information/material is considered by the CPS to be part of the normal business processing for the purposes of the Freedom of Information Act. If a request is made for information, which is covered by another statutory regime of disclosure, then the request will be considered under that statute unless the Freedom of Information Act 2000 is specifically cited. The regime applied will depend upon the circumstances under which the request is made. For example, a request for unused material will be treated under the Criminal Procedure and Investigations Act 1996. For further details, please refer to CPS Legal Guidance on Disclosure.

The CPS may give more information to certain people, such as victims, than they can give to the public under the Freedom of Information Act. This may not be due to any statutory rights but because of a public commitment that the CPS has made. For example, Direct Communication with Victims. In order not to defeat the purpose of the obligation imposed by the CPS upon itself, any requests for information that would normally fall under any such scheme, will be treated as requests under that scheme unless the Freedom of Information Act 2000 is specifically cited.

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Exemptions

Part II of the FoIA sets out all the exemptions. The exemptions are divided into two categories, absolute and qualified. Where an absolute exemption applies, a public authority is not required to provide the information under the FoIA or to confirm or deny the data exists. Qualified exemptions require a public authority to consider the public interest in providing the information. Once a public authority decides that one or more qualified exemptions applies, it must release the information, unless it decides that in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosure. However, the CPS must acknowledge the existence of the information and provide reasons for refusal to supply it.

Any decision to refuse a request for information has to be made with care balancing any relevant public interests. The FoIA Request Process Map and exemption list provides further details and instructions.

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A request for administrative/policy information

Where any member of staff considers that a request is not case related, that no consideration of exemptions is required and the request can be answered within the 20 working days time limit, it should be dealt with by the Area and the information provided. A report must then be sent to HQ using the standard document on the National Forms Register. Where the time frame is likely to exceed 20 days, the Area should refer to the HQ FoIA Officer for advice on how it should be handled.

Where the responsible officer in the Area believes consideration should be given to apply an exemption under:

  • Section 21 - Information accessible to the applicant by other means
  • Section 22 - Information intended for future publication
  • Section 44 - Information prohibited from disclosure by any enactment or punishable as contempt of court

it may be dealt with by the Area which may decide to give the information or to refuse the request. The Area may seek advice from the HQ FoIA Officer. The request should be dealt with in 20 working days, and reported to HQ.

If any other exemption is thought to apply the Area must refer the request to HQ with a recommendation on how the request should be handled and any material information to support the recommendation. Notable exemptions that may frequently arise for consideration include:

  • Section 23 - Information supplied by, or relating to, bodies dealing with security matters
  • Section 31 - Information where disclosure would prejudice law enforcement or the administration of justice
  • Section 38 - Information the disclosure of which would be likely to endanger health and safety of an individual
  • Section 40 - Personal information (Data Protection Act applies)
  • Section 41 - Information obtained from another where disclosure would be an actionable breach of confidence.
  • Section 43 - Trade Secrets and information likely to prejudice the commercial interests of any person or organisation.

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How to handle a case related request

Particular care is needed when dealing with requests for case specific information, particularly when these involve active criminal proceedings or cases that may be the subject of criminal proceedings in the future. Each request will need to be individually considered. It is highly likely that exemptions under section 30, 31 and 41 will apply and that the public interest in withholding the information will outweigh the public interest in disclosure if disclosure would:

  • Diminish the chances of a successful prosecution, future charges or making arrests
  • Diminish the chances of a fair trial
  • Endanger victims, witnesses or others as they participate in investigations and proceedings
  • Impede other ongoing or future proceedings
  • Facilitate the commission of crime

As the White Paper on Open Government explained. "There should be no commitment to disclose information which would help potential lawbreakers and criminals, put life, safety or the environment in danger.investigations of suspected crime.must normally be kept secret from the suspect and others. Witness statements, names and addresses of witnesses and reports from the police and others to prosecutors could if disclosed other than as required by the courts, jeopardise law enforcement or the prevention or prosecution of crime. It is in the interests of both the individuals concerned and the integrity of the prosecution process that material relating to both live and contemplated prosecutions and prosecutions that do not go ahead can be kept confidential."

Where any member of staff considers that a request is case related they must consult with the reviewing lawyer. If it is considered that the request should be refused on the basis of using the following exemptions:

  • Section 30 - Information held for a criminal investigation or criminal proceedings which the public authority has power to conduct.
  • Section 31 - Information not exempt under section 30 where disclosure would prejudice law enforcement or the administration of justice
  • Section 38 - Information the disclosure of which would be likely to endanger the health and safety of an individual
  • Section 40 - Personal information
  • Section 41 - Information provided in confidence
  • Section 42 - Information covered by legal professional privilege

And that there are valid arguments that the information should not be disclosed, and the public interest test has been applied, the Area must refer the request to the HQ FoIA Officer with a recommendation on how the request should be handled, including supporting material. Any other exemptions to be applied must also be referred to the HQ FoIA Officer with supporting material and recommendations.

Where the lawyer concerned believes that consideration should be given to applying an exemption under:

  • Section 21 - Information accessible to the applicant by other means
  • Section 22 - Information intended for future publication
  • Section 44 - Information prohibited from disclosure by any enactment or punishable as contempt of court

it may be dealt with by the Area. The Area can seek advice from the HQ FoIA Officer. The request must be dealt with in 20 working days and a report sent to HQ. Standard reports to HQ are available on the intranet in the National Forms Register.

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Criminal Procedure and Investigations Act 1996 (CPIA) and FoIA requests

Where the disclosure of unused material is sought by defendants, the provisions of the CPIA should continue to be applied. Issues on handling FoIA requests for unused material by defendants is covered in more detailed guidance on this and other FoIA issues, in the FoIA chapter as contained in the CPS Legal Guidance.

In circumstances where it is clear that the request is for unused material subject to the CPIA, then a defendant or legal representatives should be reminded that an application under that Act must be made in addition to or instead of the FoIA request.

It is unlikely that a different decision concerning the disclosure of unused material would be made, whether the tests under CPIA or the exemptions under FoIA are applied.

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Good record keeping

All managers are responsible for following the best practice for records contained in the CPS Records Management Manual and other publications. It is of great importance that retention/destruction schedules are properly implemented and monitored by managers at Unit/Area levels. Managers with concerns on the management of records should contact the Departmental Record Officer (DRO) in HQ.

Incorporated in the Act, are two Codes of Practice issued by the then Lord Chancellor's Department, now the Department for Constitutional Affairs. These are:

  • Section 45 of the Act provides guidance on the discharge of public authorities' functions under part 1 of the Act.
  • Section 46 of the Act in relation to the keeping, management and destruction of records.

The Codes of Practice are on the DCA website (www.dca.gov.uk/foi/codesprac.htm) Further advice can be obtained from the DRO.

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Roles and responsibilities

The HQ FoIA Unit will provide expert advice, guidance and training to the Service as a whole, issuing standardised documentation and delivering consistent, quality decisions from the centre. It will also be the final arbiter for deciding when and to what extent an exemption will apply. Key staff members in each Area will be the local point of contact for general enquiries; complex requests must be referred to the HQ FoIA Unit. A full list of the Area contacts for FoIA is held on the intranet.

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Complaints handling and appeals

Section 45 Code of Practice requires the Service to have an internal mechanism to handle complaints or appeals against FoIA decisions. Appeals and complaints against refusals should be sent to the HQ Unit. If it is not possible for the Unit to resolve the issue, then it will be referred to the Private Office to be dealt with in the same manner as third tier complaints.

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Fees

The CPS may charge a fee in accordance with the Fees Regulations produced by the Department for Constitutional Affairs (DCA). The time limit for responding to a request will be from receipt of payment of the fee. Calculations and charges will be applied by the HQ FoIA Unit only. In the case of information provided routinely as part of the prosecution process, the CPS does not charge a fee.

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Contacts

HQ FoIA Unit can be contacted on 020 7710 6164/020 7796 8008 or internal e-mail: Freedom of Information Unit

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FOI Request Process Map

Download PDF of FOI Request Process Map

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Exemptions from providing information under FoIA

Absolute Exemptions

  • S.21 - Information accessible to the applicant by other means (eg published on CPS Website).
  • S.23 - Information supplied by, or relating to, bodies dealing with security matters (as certified by a Minister).
  • S.32 - Court records - information held only by virtue of being contained in a document filed with or created by a court for the purposes of proceedings.
  • S.34 - Information covered by Parliamentary privilege.
  • S.36 - Information, not exempt by S.35, held by Parliament where disclosure would be likely to prejudice the effective conduct of public affairs.
  • S.40 - Personal data where the applicant is the data subject (nb Data Protection Act 1998 applies).
  • S.41 - Information obtained from another where disclosure would be an actionable breach of confidence.
  • S.44 - Information prohibited from disclosure by any enactment, punishable as contempt of court, or incompatible with EC obligation.

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Qualified Exemptions

  • S.22 - Information intended for future publication.
  • S.24 - Information not within S.23, if exemption is required to safeguard national security.
  • S.26 - Information likely to prejudice defence or the capability, effectiveness or security of the armed forces if disclosed.
  • S.27 - Information likely to prejudice international relations if disclosed.
  • S.28 - Information where disclosure is likely to prejudice relations between the UK Government, Scottish Administration, Executive Committee of the Northern Ireland Assembly or the National Assembly for Wales.
  • S.29 - Information where disclosure is likely to prejudice UK economic interests or the financial interests of bodies in S.28.
  • S.30 - Information held for a criminal investigation or criminal proceedings which the public authority has power to conduct.
  • S.31 - Information not exempt under S.30 where disclosure would prejudice law enforcement or the administration of justice.
  • S.33 - Information the disclosure of which would prejudice the exercise of audit functions over other public authorities.
  • S.35 - Information relating to the formulation of Government policy, ministerial communications, or the provision of advice by Law Officers.
  • S.36 - Information, not exempt by S.35, (nor held by Parliament) where disclosure would be likely to prejudice to the effective conduct of public affairs.
  • S.37 - Information that relates to communications with Her Majesty etc and honours.
  • S.38 - Information the disclosure of which would be likely to endanger health and safety of any individual.
  • S.39 - Environmental information available under regulations (see S.74).
  • S.40 - Personal information where the applicant is not the data subject where to do so would breach the Data Protection Act 1998.
  • S.42 - Information covered by legal professional privilege.
  • S.43 - Trade secret where disclosure would be likely to prejudice the commercial interests of a person, including the public authority holding it.

NB: ALL Qualified Exemptions are subject to a Public Interest Test. The test is whether the Public Interest is protected by invoking the exemptions. The HQ FOIA Unit can provide further advice.

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