The KILO Manual - WhatDoTheyKnow · Executing KILO responsibilities effectively. Main actions and...

The KILO Manual A guide for handling FOIs in the MoJ This manual was produced by DACU Central Disclosure Team. If you need to contact us: E-mail – [email protected]

DACU - Central Disclosure Team, London: 10th Floor, Post Point 10.34 102 Petty France London, SW1H 9AJ

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Introduction

Background

This manual is the main reference guide for Knowledge and Information Liaison Officers (KILOs) in the MoJ. It contains what a KILO needs to know to carry out their role, including:

details about a KILO’s duties and the associated responsibilities of their line managers and SCS;

the role of the Data Access and Compliance Unit (DACU);

the MoJ’s operating processes for responding to requests under the Freedom of Information Act (FOI), and

useful guidance and tips.

The KILO manual should be read by all KILOs.

What is on the web – handy links

There is a wealth of FOI information out there, and you will find links to much of it throughout this manual. Some of the main sources:

Legislation: Freedom of Information Act 2000

The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004

The Information Tribunal (Enforcement Appeals) Rules 2005

Data Protection Act 1998

Other useful sites: Information Commissioner's Office

The Information Commissioner is the independent authority responsible for administering and enforcing the Freedom of Information Act.

Information Tribunal Formerly known as the Data Protection Tribunal, the Information Tribunal hears appeals from notices issued by the Information Commissioner. .

The National Archives The National Archives produces policy and guidance on records management, and on public records held in archives offices, to enable public authorities to meet their obligations under the Act.

Scottish Information Commissioner The Scottish Information Commissioner is responsible for the promotion and enforcement of the Freedom of Information (Scotland) Act 2002.

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Directgov Produced by the Central Office of Information, Directgov provides information from across UK government departments, bringing together the widest range of public service information and services online.

MoJ Freedom of Information Page http://www.justice.gov.uk/guidance/freedom-of-information.htm

Procedural guidance The procedural guidance details how a request should be processed under the Freedom of Information Act. This includes guidance on identifying a FOI request, fees & aggregation, and vexatious & repeated requests.

http://www.justice.gov.uk/guidance/foi-procedural.htm

MoJ exemption guidance – Freedom of Information Act This link will direct you to various guidance documents including a general introduction to exemptions, public interest test guidance, overview of neither confirm nor deny and summary & detailed guidance on each exemption.

http://www.justice.gov.uk/guidance/foi-exemptions-guidance.htm

Working assumptions The working assumptions highlight key factors when handling requests for specific types of information – for example; policy advice, procurement and legal advice.

http://www.justice.gov.uk/guidance/foi-working-assumptions.htm

Cross Whitehall departmental FOI statistics Including MoJ, can be found at the following link: http://www.justice.gov.uk/publications/freedomofinformationquarterly.htm

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Roles and Responsibilities: The Service Level Agreement

The Service Level Agreement details the roles and responsibilities of the central disclosure team in the Data Access and Compliance Unit (DACU), Knowledge and Information Liaison Officers (KILOs), and their line management and the SCS in the successful delivery of the department’s information access obligations. The SLA excludes the management of subject access requests by (ex-) offenders.

Knowledge Information Liaison Officer (KILO)

KILOs are responsible for processing and issuing the majority of cases independently and without DACU clearance in line with the Freedom of Information (FOI) Act, Data Protection Act (DPA) and Environmental Information Regulations (EIR). They are responsible for ensuring that:

They have attended the DACU training course within two months of taking up the role to equip them to deal with requests

All requests are dealt with in line with the appropriate legislation, following DACU processes and procedures. This includes: issuing acknowledgments to requesters; drafting responses to a consistently high standard; applying the correct exemption(s) (if applicable); clearing and issuing responses locally at the appropriate level and without support from DACU in most instances; and notifying DACU of annual leave in advance - arranging cover where necessary1

Responses to all requests are issued within the statutory deadline. For FOI and EIR requests this is 20 working days, for DPA this is 40 calendar days

Cases attracting handling, political, or other sensitivities are escalated to line managers and the SCS as necessary

Provision of an excellent level of customer service – dealing with requester queries and ensuring responses are issued in a timely and lawful way

Raising awareness of the information access gateways within your business areas (e.g. identifying requests and ensuring they are handles appropriately, and helping colleagues understand the background and principles of FOI, DPA and EIR)

Advising DACU of changes to their area of responsibility and ensuring an adequate handover of duties to a replacement KILO if leaving (via the KILO Handover toolkit and induction toolkits).

1 KILOs should notify DACU of annual leave via e-mail advising of a replacement in their absence.

They should also send a diary invite to the DACU inbox ([email protected]) enabling us to keep a record.

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Data Access and Compliance Unit (DACU)

DACU support KILOs and business areas by:

Meeting the objectives defined in our Business Plan;

Issuing timeliness statistics and other relevant management information to KILOs and their line management chain on a monthly basis;

Reporting overall Departmental performance to the Executive Management Committee of the Board and the Departmental Board

Publishing the Department’s performance statistics as required by the Office for National Statistics

Providing advice on whether there is adequate KILO coverage within business areas;

Supporting capability - enabling KILOs to respond to requests independently

Allocating a dedicated point of contact to each business area. The dedicated point of contact will provide ongoing support to each business unit and ensure new KILOs are trained. They’ll also provide tailored guidance and training sessions dependent on the needs of the business unit, and offer targeted support to address specific concerns and issues;

Monitoring appeal decisions against each business area and providing feedback on compliance errors; and

Completing periodic compliance reviews of each business area, assessing responses for compliance and timeliness. Compliance Reviews will also ensure that correct processes are being followed and that full audit trails are being retained.

Ensuring that cases are allocated to the correct KILO(s) and that KILO leave instructions are followed.

Line managers and the Senior Civil Service

The SCS have overall responsibility for ensuring timeliness and compliance within their business areas. They are responsible for:

Ensuring responses provided by their teams are of a consistently high standard as well as compliant and timely

Making sure that clearance processes are in place and followed (clearance at PQ-equivalent level unless agreed in advance with DACU)

Ensuring there is adequate KILO coverage and resources across the business area to manage requests in line with the legislation and MoJ operating processes

Taking appropriate action following compliance reviews to ensure future compliance and implementing recommendations where applicable

Ensuring DACU are notified of an alternative contact in the event a KILO is unexpectedly absent from work

Ensuring that agreed objectives, as set out in the KILO manual (copy below), are in place for KILOs and that their performance is measured against them.

Recommended KILO Job Objective for inclusion in ASPR:

Job Objective you expect to achieve:

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Executing KILO responsibilities effectively. Main actions and timescales

Answering all FOI/EIR/DPA requests in line with statutory responsibilities and Departmental processes, as set out in the KILO manual and the DACU KILO Service Level Agreement.

Carrying KILO responsibilities as detailed in the KILO manual including acting as the main point of contact for DPA/FOIA and EIR queries in my business area

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The FOI Operating Model

What information is processed by DACU Central Disclosure Team?

The Ministry of Justice processes many types of requests for information. The DACU Disclosure Team is responsible for processing the following types of requests for information that are received by the MoJ:

DACU – Central Disclosure Team, London

Freedom of Information Requests

Environmental Information Regulations

Internal Reviews of Freedom of Information Requests

Information Commissioner cases

Information Tribunal appeals on Freedom of Information matters

Staff Subject Access Requests under the Data Protection Act

Subject Access requests from the general public

DPA s.29/35 requests (except for MoJ staff or offenders/ex offenders –see note section)

NOTE:

DACU COMPLIANCE – LONDON

Responsible for advising on all other aspects associated with the MoJ’s compliance with the Data Protection Act, such as data loss; privacy impact assessments; data sharing agreements; and any proactive or discretionary disclosure of personal data made by MoJ. They manage the MoJ’s relationship with the ICO on all aspects of the DPA other than those managed by DACU Disclosure. If you have a query for DACU Compliance, you can contact them via e-mail; If you are not clear who you need to speak to, please contact DACU Disclosure and we’ll be happy to advise.

e-mail [email protected]

DACU BRANSTON – DATA PROTECTION TEAM (part of DACU compliance)

Requests for personal data made by current and ex-prisoners, or their representatives, are not handled by the DACU Disclosure Team, and are not therefore part of a KILO’s role. If you receive a request for personal data from a prisoner or their representative (e.g. a solicitor), you need to forward it to the Data Protection Team in Branston (also called DACU). Their details:

e-mail - [email protected]

What DACU do with requests when received by the department

DACU Central Disclosure team logs all types of request for which we are responsible (i.e. anything that falls under the list above). It is essential that all requests are logged with us, as we have overall responsibility for ensuring the MoJ meets the legal requirements associated with these requests. If you or any of your colleagues receive one of the above types of request you must send it to us for logging immediately, and no later than 24 hours after receipt.

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When we receive a request we will log it on our case management system and assign it with a unique case reference number, which will allows us and you to keep track of the case. We also calculate the statutory deadline for responding to the request (20 working days for FOI & EIR, 40 calendar days for DPA).

Records management

DACU does not keep an audit trail for each case. You are responsible for retaining a comprehensive audit trail for all your cases. A full audit record is essential because:

It is a legal requirement

We need it to conduct Internal Review and ICO appeals

We will assess the quality of your record keeping during compliance reviews, and provide you and your SCS with a RAG rating

It allows you to deal with queries from requesters and colleagues across the MoJ (including press and private offices) who are interested in the request.

This part of the manual sets out what records you should keep for all of your cases, how you should keep them, and for how long. You can also find further information on the MoJ and ICO web-pages.

What you must keep: At minimum, you must keep the following records for each case you handle:

The initial case assignment e-mail from DACU – this will include a copy of the original request.

The acknowledgement letter you send to the requester (not applicable for ICO and Tribunal cases as DACU issue these)

Any advice you give to the requester or general correspondence with them about the request

A record of how and where you have conducted your search for information

A copy of the information you have collected in your search – please note this information must be in its original form (i.e. before any exemptions/redactions have been applied)

The cost form showing your calculation leading to refusing the request on costs grounds (if applicable)

The public interest arguments you have considered if withholding information under a qualified exemption (if applicable)

Any guidance from policy, legal or other colleagues about the request

Any correspondence between you and DACU about the request.

Clearance for the final response in the business unit

Clearance for the final response in DACU.

The final response issued – including any information released.

Depending on the specifics/complexities of the case, you should use your discretion and save any additional records you deem necessary, e.g. email chains with discussion regarding case details/legal advice etc.

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If you have hard copies of information which you intend to release as part of your response, you must keep two copies of the documents – one in the original form and one with any information redacted/extracted. This is so that if there is an appeal on the request (including to the ICO) we can consider whether information was redacted/extracted properly. This is particularly relevant to DPA requests.

How to keep it: You must keep your case records somewhere that is secure and accessible to other colleagues in your business area – i.e. in departmental records management systems. These will vary depending on your business area, but for electronic records may include the TRIM system and your business area’s shared drives. Please refer to your local records management guidance or the MoJ intranet for further information. You must not store records in your own personal storage drives or in your e-mail archive folders as these would only be accessible by you and could be easily lost or deleted accidentally.

Records must be stored in such a way that they are both accessible and easy to identify and retrieve if you or anyone else needs to access them again in future. This means that electronic records must be stored with proper naming conventions so that if someone else needed to find a particular record relating to a case they can do so easily. You should follow any local naming convention guidance when storing your records. If you don’t have any local guidance you can follow the DACU naming conventions which are:

“Case Ref – Name – type of record” For example:

67432 – Smith – Allocation email

67432 – Smith – Correspondence with [x] – advice given re s.12.

For Internal Review cases, the record should be saved under “IR case number – name – information”. For ICO cases, the record should be saved under “ICO case number – name – information”.

If you have any paper records, these must also be stored in a secure filing system in such a way that they can be easily identified and retrieved.

Please bear in mind that when DACU conduct a compliance review of your business area’s performance you will have to supply full audit records of the cases selected as part of the review. It is therefore essential that you can identify and access these records easily.

How long to keep it: In line with the MoJ’s overall retention schedule, please refer to the table below indicating how long files should be kept following the last action.

Freedom of Information Act:

Paper Destroy after 3 years For Information Commissioner Reviews – Destroy after 5 years

Electronic Destroy after 3 years – unless ongoing correspondence identified by the business unit

For Information Commissioner Reviews – Destroy after 5 years We have a duty under the Data Protection Act not to keep any records for longer than we need to, so it is essential that you review your records regularly and delete any that have passed the deadline.

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FOI Disclosure Log

MoJ has a disclosure log which can be found at the following link: http://www.justice.gov.uk/global/foi-requests/moj-disclosure-log.htm

DACU Disclosure Team publishes all FOI responses where information has been released in full and part (not including information released outside of the Act). This log will potentially cut down the number of and time spent dealing with FOI requests and related media calls received by enabling us to direct requesters to the information already available on the log (If information requested is available on the disclosure log – please refer to FOI exemptions – Section 21)

Publication Scheme The MoJ keeps a publication scheme, in line with Section 19 of the FOIA and the ICO’s expectations. The scheme explains what information the department proactively makes available to members of the public, provides links to the information and is split info categories such as:

who we are and what we do

what we spend and how we spend it Departmental policies and procedures

In recognition of our commitment to the transparency agenda, the department proactively publishes a considerable amount of information. Examples of information published via our publication scheme include:

Corporate reports

Policy reports Statistical publications

Contracts

Budget spend

The department continues to improve our scheme by identifying areas where we can proactively publish more information - if you believe that your business unit would benefit from pro-actively publishing certain information via our publication scheme please contact your relevant Disclosure Team.

Compliance Reviews

The Compliance Review is a mechanism to enable DACU to quality assure compliance and timeliness in line with the appropriate legislation, celebrate success, identify areas for improvement, assess KILO coverage and provide support to resolve any issues in line with the Service Level Agreement (SLA).

Compliance Reviews play a key role in increasing capability across the department – building knowledge and expertise in FOI and DPA. The frequency of compliance reviews will depend on your business unit’s RAG rating from previous reviews and this will be communicated to you by DACU.

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Performance Information

We monitor overall FOI and DPA performance across the department to ensure requests are being dealt with on time and compliant with the legislation. We provide performance information, on a monthly basis, to you and MoJ SCS, and regularly to the MoJ’s Executive Management Committee of the Board. This includes timeliness statistics showing performance against the statutory deadlines, at departmental, group and directorate level (and at divisional level for some high volume areas). We also publish the department’s performance statistics as required by the Office for National Statistics.

If you have any queries in relation to your performance data, please contact your relevant Disclosure Team.

Cross Whitehall departmental FOI statistics (including MoJ) can be found at the following link: http://www.justice.gov.uk/publications/freedomofinformationquarterly.htm

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Processing a request under the Freedom of Information (FOI) Act

Freedom of Information Guidance

This chapter will detail the basic principles of the FOI Act and how you should process a request. The complete Act can be found at the following link:

http://www.legislation.gov.uk/ukpga/2000/36/contents

General introduction - what is FOI?

The Freedom of Information Act (FOI) was introduced in January 2005 and gives any individual a right of access to any recorded information held by a Public Authority.

Schedule 1: provides a list of all Public Authorities subject to the Act and can be accessed via the following link: http://www.legislation.gov.uk/ukpga/2000/36/schedule/1.

The FOI Act specifies that as a public authority we are obliged to respond to FOI requests, for each response we must comply with Sections 1, 16 and 17 of the Act. How we comply with each of these is discussed throughout the manual and details can be found below:

Section 1: inform (in writing) if we hold the information specified in the request and communicate that to the requester.

Section 16: Provide advice and assistance to the requester.

Section 17: Explain why information is exempt, specify the exemption(s) engaged and state why the exemption is engaged.

Timescales

Section 10(1) of the Act states that the statutory deadline in which to respond to requests is 20 working days following the date of receipt (this excludes public and bank holidays).

The MoJ website provides DACU’s contact details, enabling individuals to send FOI requests directly to us; http://www.justice.gov.uk/global/foi-requests/index.htm.

We also have an online FOI form, enabling individuals to submit FOI requests that are directed to the DACU inbox; http://www.justice.gov.uk/information-access-rights/foi-requests/make-an-foi-request-online

However, if you receive a FOI request you must forward to DACU immediately to ensure it can be answered within the statutory deadline.

Exceptions to the 20 day statutory deadline Section 10(3) of the Act provides for a ‘reasonable’ extension to the 20 working day statutory timescale (up to a maximum of 40 days - as defined by the Information Commissioner) in

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particular circumstances. If a qualified exemption is engaged and you are still assessing the public interest arguments (PIT) for and against disclosure you may be entitled to apply for a public interest extension. Please refer to the PIT section of this manual for further information.

Further guidance on PIT extensions can be found at the following links:

http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/procedural-guidance/foi-time-limit

http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/procedural-guidance/foi-time-limit

If you are considering applying a PIT extension you must contact your relevant Disclosure Team in DACU for clearance before proceeding. Once approved, you must contact the applicant within the 20 days to advise what exemptions apply to the information, providing an estimate of the date when the decision will have been made and when they can expect a final response.

Is the request valid? Freedom of Information Vs Routine Correspondence.

Determining a valid FOI request In the first instance you should ascertain if the request is valid under the Act.

To decide if you have received an FOI request, consider the following:

Has the requester asked for recorded information, e.g. a copy of a report, or emails relating to a government policy?

Has the requester described the information they seek, in a way that will enable the MoJ to identify if it holds it?

Has the request been received in writing, e.g. by letter, email, fax, Twitter?

Has the requester provided their name and return address, such as an email address?

If the answer to the above is yes, you have received an FOI request. If in doubt, contact DACU. If you receive a request over the phone please provide the requester with DACU’s details so they can submit a request in writing. Reasonable adjustments can be made under the Disability Discrimination Act (DDA) e.g. for visually impaired requesters.

Note - the requester need not cite FOI in order for the request to be a valid FOI request. Nor does citing the FOI automatically make it a valid request.

If the request is not a FOI request, it should be dealt with as routine correspondence. A few examples illustrating the difference between FOI requests and BAU correspondence:

Valid Freedom of Information request Recorded information

Routine correspondence Subjective

A copy of papers considered when making a decision on a policy

Explanation of a policy on a particular issue

A copy of a report Why MoJ made a particular decision

Data/ statistics An opinion on a decision

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More guidance on valid FOI’s can be found via the following link on the MoJ website: http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/dealing-with-a-request#foi_act

Who can make a request? Anyone anywhere can make a request for information under the FOI Act. No distinction is made between people from the UK or from any other country. The Act is also requester blind; which means we cannot take into account who the individual is or why they would request particular information.

Combination requests: MCs, TOs, BAU and FOI/DPA Sometimes the department will receive correspondence such as Ministers’ Cases (MCs) and Treat Officials (TOs) that also contain DPA and/or FOI request(s).

Where this is the case you must:

Advise DACU that a FOI/SAR request is embedded to ensure the case is logged and an individual reference number generated and;

Handle the FOIA/DPA parts separately from the MC/policy/BAU elements.

In no circumstances should any reply from a Minister (i.e. a MCs or PQ) contain responses under FOIA/DPA, citing the legislation - Ministers do not answer FOI/DPA requests.

The type of correspondence will determine how you handle a combined request:

For MCs or PQs:

The Minister will need to tell the MP that a separate response to the FOI or SAR aspect will be sent to them and their constituent (if an address for the latter is provided).

For SARs, it is unlikely the fee and ID will have been provided, so the Minister will wish to suggest the MP invites their constituent to forward: request, fee and ID to DACU.

More details on the information required to process a SAR can be found at the following link: http://www.justice.gov.uk/information-access-rights/how-to-make-a-subject-access-request

TOs / other correspondence to be issued by MoJ officials: It is acceptable to address the FOI/DPA elements in the same response as the policy/BAU answer, but there must be sufficient distinction between the two.

Be aware, that FOI responses can take up to 20 working days to formulate, and Subject Access Requests under the DPA 40 calendar days. If the TO/BAU aspect of your reply cannot wait that long, you should confirm to the requester which part of their request is being dealt with under the FOIA, and that they can expect a separately answer

General Enquires If an individual has a general enquiry (and not an FOI/EIR/DPA request) that you can’t answer they should be directed to the general enquiries team at the following address: Ministerial Correspondence Unit Ministry of Justice 102 Petty France 10th Floor London

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SW1H 9AJ DX 152380 Westminster 8 Telephone +44 (0)20 3334 3555 Fax +44 (0)20 3334 4455 E-mail [email protected]

Telephone requests from journalists If you receive a phone call from a journalist, you must follow MoJ’s rules governing staff contact with the media.

Do we hold the information?

Unless the FOI request you have been allocated is vexatious and/or repeated (see Section 14 guidance), in which case you can refuse to consider the request, the first step when processing an FOI is to consider whether the MoJ holds the recorded information that the requester has asked for.

What do we mean by ‘held’ and ‘recorded’ information? Under the Act, information is held if it is held by the authority or by another person on behalf of the authority. Section 84 of the Act refers to information ‘recorded in any form’ and gives right of access to recorded information held at the time the request is received. Recorded in any form includes;

Information held electronically (e.g. laptop computer, electronic records management system)

Information recorded on paper (e.g. letter, memo, papers in a file)

Sound and video recordings (CD, videotape)

Hand-written notes or comments, including those written in pads or on Post-it notes.

E-mails

Information in storage

Information that exists on the authority’s premises or IT network which was not created or kept by your authority as part of your authority’s work is considered not held under the Act.

Similarly, if you hold information on behalf of another public authority you are not required to provide this information as it is the originating public authority that will ‘hold’ it for the purposes of the Act.

When searching for information, you should consider whether it might be stored on personal, shared drives or on the department's EDRM TRIM system. You should also consider whether the department holds a paper record in its on site, or off site, records stores. Although the metadata for some of the paper files are recorded on TRIM you may wish to contact the Registrar, to confirm whether a file is held. If the exact title of the paper file is not known you should suggest some possible names for the files.

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The Act provides access to information – not to documents, however it may be easiest to supply a full copy of the relevant document (i.e. the document may contain the information requested). Please be aware of supplying a document containing large amounts of information not requested, please see ‘scope of request’ section below.

If you receive a request for information to be made available in a certain format (e.g. electronically) you should do so if it is reasonable and practical. If not possible, you should explain why and provide the information in the most practical way. You should also make reasonable adjustments under the Disability Discrimination Act (e.g. large print version of a response).

What information is held by you? 'Holding' information includes holding a copy of a record produced or supplied by someone else. This can include information you might not expect – information recorded on a post-it note for example.

However, if a public authority only holds information on behalf of someone else, for example a department holding trade union information on their computer system, then that public authority may not have to provide the information in response to a Freedom of Information Act request.

In some cases, it may not be clear whether information which is physically present on your premises or systems is properly to be regarded as 'held' by your public authority, for the purposes of the Freedom of Information Act.

This could include:

private material brought into the office by ministers or officials

material belonging to other people or bodies

trade union material

constituency material

material relating to party political matters

What steps should a public authority take if it is unclear whether information is held? As the Act is wholly retrospective, there may be occasions when a public authority is required to undertake a search in order to determine whether or not requested information is held. Remember, an authority is relieved of the duty to inform an applicant whether information is held if the estimated time spent searching for the information would exceed the appropriate limit under Section 12 (2) of the Act.

The Commissioner expects such a circumstance to arise infrequently, as authorities should have due regard to the Section 46 Records Management Code of Practice (Lord Chancellor's Code of Practice on the Management of Records). The Commissioner may issue a Practice Recommendation in cases where it is clear that an authority is failing to meet its obligations under the Code.

Creating information We are not required to create new information in order to answer a request. The FOI Act enables access to information that already exists and is held on record, you should be clear of the distinction between creating new information and compiling it from different sources or

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extracting it from a database (i.e. ‘re-presenting’ information in a different form to what it is held).

Where it is possible to extract the information requested and present it in a form (i.e. a list or schedule) this does not amount to data creation. The ICO states that a public authority is not creating new information where:

It presents information it holds in a form of a list or schedule;

Compiling an answer to a request involves simple manual manipulation of information held in files; or,

It extracts the information from an electronic database by searching it in the form of a query

Cost issues may be involved to retrieve or extract information that is already held to comply with a request. Please refer to the Section 12 section of this manual for more information on calculating costs under the ‘appropriate limit’.

Scope of request It is important that when searching for information you only conduct a search specifically for the information that has been requested and assess only this in line with the Act. Information that does not fall in scope of the request should not be considered.

What if you do not understand what the requester is asking for? It is extremely important to ensure that it is clear, from the wording of the request, what the requester is seeking. If the requester does not describe the information sufficiently for you to be clear about what they want, section 1(3) of the act allows for us to issue a clarification response.

Once the requester replies to a clarification letter with sufficient detail to enable you to identify the information sought, the request will be logged by DACU and assigned to you to take forward as a new request (with a new 20 working day deadline generated).

What if the information is not held by the department? If the information is not held by the department you must state this in the response. If you know of an alternative public authority who may hold the information you should direct the requester to the appropriate authority who may hold the information requested. You should not transfer the request in the way that you might an MC or a TO: FOI requests to the MoJ must be answered by the MoJ even if we do not hold any relevant information.

Please refer to the transferring requests section of this manual for MoJ's policy.

What if the information is held by the department? If the information is held and you should continue to asses this in line with the Act.

What if it is not obvious if the department holds the information? Under the Freedom of Information Act, we are required to confirm whether or not we hold the recorded information we have been asked for (unless NCND applies).

In terms of held - if we have the information recorded at the MoJ and we use and process this information, this will generally be held by us. 'Holding' information can also include holding a copy of a record produced or supplied by someone else.

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Most of the time, having carried out reasonable searches, it will be obvious whether or not we hold the information and therefore whether we need to confirm this is the case or, conversely, respond on a ‘do not hold’ basis.

However, you may on occasion find that the answer is not clear cut. For example, perhaps a contractor/ agency or other department has the information, yet you are not certain from your enquiries whether they hold this on the MoJ’s behalf (which means we ‘hold’ the information for FOIA purposes), or whether they have this information separately to us as a Department (and therefore we need to respond on a DNH basis from the MoJ).

Where this isn’t clear, you will need to make a reasonable judgement as to whether this is 'held on behalf' or just not held. The way you make this decision will be by considering a number of factors to help determine the purpose for the use of the information in question. Some of the considerations taken into account in instances such as these might include:

Custody and handling (who has physical custody, where is it stored, is handling subject to contractual arrangements etc)

Ownership (do we know who owns the info and the medium it is stored), Cost (who pays for the info to be stored and generated)

The source (who provided the info and who collates it),

The Function of the info (what its purpose is, the subject matter, does the public authority have an interest in the content or not etc)

Issues around who controls it (who has right of access, duty to protect it, who would have the right to amend it/ delete it etc).

This test can be tricky. Therefore, if you think this test is relevant to a case you are dealing with, please contact your relevant Disclosure Team in DACU to discuss as soon as possible – making sure you have the answers to the above bullet points in advance!

The basic outcomes in instances such as these are:

1. The MoJ hold the information only (in which case we look at whether we can disclose in line with the Act, as per usual process).

2. The MoJ does not hold the information at all (it is owned and held by another third party or not held at all) and therefore we issue a standard DNH reply.

3. The MoJ hold the information and so do other authorities/ third parties (in which case we may need to consult them regarding disclosure as relevant third parties).

4. The third party hold the information on the MoJ’s behalf (in which case the MoJ holds the information as per 1 and 3).

How to Conduct a Search for information

What I am searching for? Stick to the scope! The Freedom of Information Act, Environmental information regulations and the SAR provisions of the Data Protection Act give individuals and organisations routes if access to recorded information held by the MoJ, its agencies and Non Departmental Public Bodies (if covered by MoJ for the purpose of the Acts). Recorded information is information that exists in a permanent form and includes, but is not limited to:

e-mails; this includes information held in non-work personal email accounts - e.g. Hotmail, Yahoo and Gmail – (which may be subject to FOIA if it relates to the official business of the public authority);

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hard and soft copy documents or files; this will include anything written down, computer files, minutes of meetings, submission documents, records, reports, notes, contracts, statistics, guidance documents, investigations, personnel files, court files, prison files, information held in a database – basically anything we hold in a recorded form;

images and recordings; including photographs, CCTV footage, illustrations, maps, diagrams etc

Your search for information under this legislation should always be defined in the first instance by the specific scope of the request:

What has the requester specifically asked for?

Are you searching within specific dates or over a specific time period?

Named individuals/ area of the business/ location specified?

Does the request specify a type of information – e.g. minutes of a meeting/ emails?

Anything considered for disclosure outside the scope of the request is a disclosure outside of the legislation. It’s important that you note this in any reply and in general our advice is stick to the scope!

Keeping a record of searches When you receive an information request it is important that you make the appropriate searches to ensure you have discharged your duty under the Acts.

It is also important to record when and how you looked for the information and keep this in your audit trail.

When a compliance review is carried out by DACU you will be expected to show evidence of this, and if your case is referred the Information Commissioner it is important that this is recorded.

Where do I look? Having determined the scope of your request you may need to look in a variety of places depending on the kind of information you possess as a business unit and the scope of the request you are dealing with. This could include:

Your own or colleagues’ inboxes (which you should ask them to search themselves)/ archived emails (including those not permanently deleted from the system –i.e. those that you can extract by ‘recovering’ emails and those sent from private emails accounts if it relates to official MoJ business – see below).

Individual files – both electronic and paper – this includes historic records you might have in on/ off-site storage or archived – e.g. personnel files, prison files, court records, policy files.

case management systems, corporate records (including TRIM/ EDRM other electronic systems and other information stored on the system/ hard drive), searching/ running basic queries on databases.

Other MOJ areas outside of your direct Business Unit (i.e. information held locally in courts or prisons).

Official information held in private email accounts:

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FOIA applies to official information held in private email accounts (and other media formats) when held on behalf of the public authority. Such information may be exempt and will not necessarily have to be disclosed

MoJ IT policy states that official MoJ email accounts should be copied into emails discussing MoJ business – so any exchanges conducted on private email should be held in the department.

The FoI Act allows people to request information; it does not give the requestor any power to dictate where the department should search for that information. It is for MoJ to consider where the information might be and to take reasonable steps to find it.

However in rare circumstances it may be necessary to request relevant individuals to search private email accounts in particular cases, if you or they suspect relevant material is contained within them. It will generally be reasonable to search only within those systems when a request has been received.

The occasions when this will be necessary are expected to be rare and if you think it is required or if you have any questions please notify DACU Adherence to good records management practice should assist in managing risks associated with the use of private email accounts for public authority business purposes.

If the Information Commissioner’s office is involved, we may be asked to explain the nature and extent of the searches conducted in order to reply to a request.

Transferring requests It is the policy of the Ministry of Justice not to accept the transfer of FOI or EIR cases from another public authority or to transfer to another public authority unless there are very exceptional circumstances (exceptional circumstances would be assessed on a case by case basis and in agreement with DACU).

Where we receive requests for information held by another public authority the Section 45 Code of practice recommends that we contact the applicant and suggest they re-apply, providing the contact details for the applicable authority. To do so, we should issue a Do Not Hold response, advising the requester of public authority who may hold the information.

Contradicting this, the code of practise does allow the transfer of requests to other public authorities, however there are reasons why MoJ do not, the main one being that to transfer is more bureaucratic – to be able to conduct a transfer we have to:

consult the other public authority to find out if they do hold the information (we have to be certain they ‘hold’ the information for us to action a transfer – this can be time consuming for both public authorities).

consider whether a transfer is appropriate; and if so

consider whether the applicant is likely to have any grounds to object to the transfer and if we think they won’t, write to them to tell them that you have done so.

Where there are reasonable grounds to believe an applicant is likely to object (or they do), we can only transfer the request to the other authority with the requesters specific consent.

Also, if we transfer a request to another public authority, the 20 day statutory deadline does not start again, this will affect the public authorities’ ability to process the request by the statutory deadline.

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Neither Confirm Nor Deny (NCND) The department has a statutory obligation to confirm or deny if the information is held and our first duty in responding to a request is to confirm or deny that the information is held (Section 1(1) of the Act). For the majority of requests this is a straightforward process.

There are however some circumstances where it is right to neither confirm nor deny if information actually is or is not held. It may be that confirming or denying the information is held by the department would in itself communicate sensitive and potentially damaging information, to the detriment of the public good or could cause harm to the department or to another person or organisation.

For example – if a requester asks for information concerning a third parties’ criminal offence record, you should consider whether to NCND, as by simply confirming if information is held would confirm whether or not an individual has or has not committed a criminal offence.

You must be certain that one of the exemptions under the Act is engaged to apply NCND. All exemptions bar Section 21(accessible by other means) under the Act allow us to NCND that information is held by the department.

There are two different types exemption – qualified and absolute, more information can be found on these in the Exemptions section of this manual. When engaging a qualified exemption the public interest test (PIT) argument should weigh up the arguments for and against the use of NCND i.e. that the public interest favours ‘neither confirming nor denying’ that the information is held.

More details on NCND can be found at the following links:

MoJ guidance: http://www.justice.gov.uk/guidance/foi-exemptions-ncnd.htm

ICO link: http://www.ico.gov.uk/for_organisations/freedom_of_information/information_request/confirm_deny.aspx

Information held by the National Archives Information which has been transferred from the MoJ to The National Archives (TNA) is deemed to be held by them as a separate public authority. TNA will make the decision about releasing information they hold.

If the information is held by TNA you should:

Write to the requester advising them that the information has been transferred to TNA

Recommend they make a new request to TNA at the following address:

The National Archives Kew Richmond Surrey TW9 4DU

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Section 12 rejection – Cost limit

Once you have confirmed if the information is held, or is likely to be held by the MoJ, the next step is to assess the request in line with Section 12. Section 12 is a refusal under the Act if to provide the information at the level of detail required would exceed cost limits.

There are two different types of refusal under Section 12, each of these are explained below. It is important that when considering the application of section 12, the correct subsection is engaged.

Section 12(1) This applies to information that we know we hold, however to provide the information requested at the level of detail required would breach the cost limit

For example – requests for information from ‘all prison establishments’ or ‘all courts and tribunals’ are likely to fall into this category unless the information is held centrally by the department. This is because to provide the information would require contacting each and every prison (140+ establishments) or court (600+ courts).

Section 12(2) This applies to information that even to confirm we hold the information requested would breach the cost limit.

For example – A request for information relating to offenders not held centrally in NOMS or reported locally in establishments, but would require contacting each prison (140+ establishments) to assess every offender prison file to ascertain if the information is recorded.

What is the ‘appropriate’ limit? The cost or ‘appropriate limit’ equates to 24 hours or 3.5 days of work at £25 an hour to:

Determine if we hold the information requested

Locate the information or documents containing the information

Retrieve the information or documents

Extract the information from the document containing it.

The following activities cannot be taken into consideration when making a cost calculation

The time taken to check that a request for information meets the requirements of the Freedom of Information Act

Considering whether the information requested should be withheld in reliance on an exemption under the Act. This includes any costs incurred through seeking legal advice about whether exemptions apply

Considering whether a request is vexatious or a repeated request

Obtaining authorisation to issue the information

The time taken to calculate any fee to be charged

Advice and assistance provided under section 16 of the Act.

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Costs calculation and argument If you have determined S 12(1) or 12(2) applies, you must make a cost calculation to ensure that a reasonable estimate has been made.

You should retain a copy of the costs calculation for audit trail purposes, if the requester applies for an internal review this will be required.

In the response you must include a costs argument, explaining why the appropriate cost limit is exceeded.

Aggregating requests under Section 12(4) If you receive a number of requests asking for the same or similar information within a short period of time, it is possible to aggregate these requests, under the Fees Regulations 2004, and assess them in line with section 12 – taking an overall view of the resources which would have to be committed to answering all of the requests. Often a requester will send one piece of correspondence containing several different requests. Under the Act, these are technically separate requests, not one request. It is legitimate though to aggregate them under the Fees regulation and assess them as one request. In doing so, if one limb of the request engages S12, the whole request can be refused under S12.

Requests can only be aggregated in this way if:

Two or more requests for information have been made

The requests are either from the same person of from people who appear to e acting together or in a ‘campaign’

The requests relate to the same or similar information and

They arrive within 60 working days of each other.

Charging a Fee (Section 13 of FOI Act) Although the FOI Act allows a public authority to charge a fee for release of information it is the policy of MoJ to refuse these requests as the department does not operate a fee charging system.

Guidance links More guidance on Section 12, aggregation and fees can be found at the following links:

MoJ guidance: http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/fees

ICO guidance: http://www.ico.gov.uk/for_organisations/freedom_of_information/guide/refusing_a_request.aspx

Advice & Assistance

Public authorities are required to provide the requester with advice and assistance (A&A) where applicable. This is especially true where compliance with the act would exceed the appropriate cost limit, however A&A should be considered and may be required when applying exemptions.

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Please refer to the Section 45 Code of practice: http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/code-of-practice for guidance on providing A&A and when the duty may arise. Providing A&A should not affect the 20 day statutory deadline.

Further guidance can be found on the MoJ website; http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/procedural-guidance

Considering information held by the department

Having established that the information is held, that the request is neither vexatious nor repeated and that the cost of complying with the request does not exceed the ‘appropriate limit’, you will then need to search for the information. Once you have obtained all the information in-scope of the request, the next step is to consider release of the information and assess this in line with the FOI Act.

Exemptions – types and uses The FOI Act contains 23 exemptions which public authorities may rely on to withhold information. These exemptions are designed to ensure a proper balance is achieved between the right to know with the right to personal privacy, the delivery of effective government and other important public interests.

You must establish if the information falls within the scope of an exemption to apply it. High level guidance about exemptions can be found in the following link; http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/exemptions-guidance

There are two types of exemption; absolute and qualified, and each exemption – whether it be qualified or absolute – will either be class-based or prejudice-based (or in the case of s27, both!).

Prejudice or class based? The application of some exemptions depend on the effect, or likely effect, of disclosure. These exemptions are called prejudice-based exemptions. Other exemptions, class-based exemptions, apply regardless of the sensitivity of the material – the nature of the information itself is sufficient to engage the exemption. For example, section 42 – legal professional privilege - is a class-based exemption: it is engaged to legally privileged information regardless what the legal advice says. Section 29 (the economy) is a prejudice-based exemption: the exemption is only engaged if the exemption if release of the information would prejudice the economy. Further explanation follows.

Prejudice-based exemptions: For prejudice based exemptions you are required to show how the release of information would or would be likely to cause harm. In evaluating the effect of a disclosure, you need to consider the full context of that disclosure, and to make what is, in essence, a risk assessment. Please be aware that two exemptions use alternative words for ‘prejudice’ these are:

Section 36: would, or would be likely to ‘inhibit’

Section 38: would, or would be likely to ‘endanger’

There are two issues that you need to consider with prejudice-based exemptions.

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1. First it is necessary to establish the nature of the prejudice (or other stated harm i.e. ‘inhibit’ or ‘endanger’) that might result from disclosure of the information requested, and;

2. second, whether the balance of the public interest favours disclosure or non-disclosure of the information.

What does prejudice mean? The easiest way to consider how disclosure of information would cause prejudice is to think of the harm that could arise from disclosure, for example how release may damage security and good order in prison establishments (Section 31(1)(f)). Although the Act does not specify the degree of prejudice that must be shown, the Tribunal has found it must be ‘more than trivial’. Although this is a low threshold, you should bear in mind that the less significant the prejudice is shown to be, the higher the chance of the public interest falling in favour of disclosure.

How likely is likely? The words ‘would, or would be likely to’ allows for the chance of prejudice to be less than certain. The probability of prejudice occurring need not be more likely than not, but there should be more than a remote possibility. You should think about whether there is a ‘real risk‘ of the harm you have identified occurring if you disclose the information.

Class-based exemptions: For class based exemptions you are simply required to show that the information is held for a specific purpose.

A class based exemption means that the public authority is not required to show that release of the information would cause an identifiable harm. For example, section 42 (legal professional privilege) is a classed based exemption. In this case there is no need for the public authority to demonstrate any ‘prejudice’ to any particular interest in order to engage the exemption.

Absolute or Qualified? The previous two categories determine whether an exemption is engaged. Once you have decided that an exemption is engaged, what you do next will depend on whether the exemption is qualified or absolute. If it is an absolute exemption, there is no further assessment to be made: you are under no obligation to disclose the information. If the exemption is a qualified exemption, you must undertake a Public Interest Test (PIT). A PIT is an assessment of the balance of the public interest for and against disclosure. Qualified exemptions do not justify withholding information unless, on a proper assessment, the balance of the public interest is against disclosure.

More information: Absolute exemptions Where an absolute exemption applies, a public authority is not required to communicate the information requested. The information can be withheld without separate consideration of the public interest. Nevertheless, it is important to ensure that the decision to cite an absolute exemption is valid.

In some cases, where an exemption is absolute, its application is obligatory and it can be unlawful to release the information (e.g. Section 40 – personal information).

Guidance on each absolute exemption can be found in the list below.

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Qualified exemptions Qualified exemptions are subject to a public interest test (PIT). If information falls under this exemption this means that you must consider if the public interest arguments in favour of disclosure outweighs those arguments in favour of withholding the information.

More information on qualified exemptions can be found at the following link: http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/exemptions-guidance/foi-exemptions-public-interest

Public Interest test (PIT) If a qualified exemption is engaged you must compile a public interest test argument and include this in the final response. This will be considered at both internal review and ICO stage during any investigation of a first request.

There is no fixed definition of ‘public interest’ and the assessment is a matter for judgment on a case-by-case basis. The judgment is often best made by the policy staff leading on the subject concerned.

Where an exemption is engaged – if the public interest in releasing the information is equal to or outweighs the public interest in withholding, it should be released. If the public interest in withholding the information outweighs the public interest in disclosure it would be withheld.

You should consider the benefits of promoting accountability and transparency about the decisions taken by public authorities and about the use of public money. There is also an accepted public interest in allowing individuals to understand decisions which affect their lives or which have an effect on public health and safety. It is important to consider whether disclosure of this particular information would further such broad aims. This should be balanced against the effect disclosure may have, including endangering the safety of personnel, undermining effective government by discouraging frankness and candor in internal communications, threatening our competitive position in a commercial matter or jeopardising our relationship with stakeholders.

It is important to remember that what the public are interested in and what is in the public interest to release are not necessarily the same.

How long do I have to consider the public interest test?

The PIT arguments must be considered throughout the case lifecycle – so within 20 working days. However if you are still considering the public interest in releasing information and need more time you may be entitled to apply for a public interest extension beyond the normal 20 day statutory deadline (up to a maximum of 40 days).

If you are considering applying a PIT extension you must contact your relevant Disclosure Team in DACU for clearance before proceeding. Once approved, you must contact the applicant within the 20 days to advise what exemptions apply to the information, providing an estimate of the date when the decision will have been made and when they can expect a final response.

Guidance on PIT extensions can be found at the following link: http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/exemptions-guidance/foi-exemptions-public-interest

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Other information about exemptions Duration of the exemptions Most of the exemptions are time limited. Part VI of the Freedom of Information Act makes provision for many of the exemptions to expire in relation to information held in certain records, often when those records become 30 years old.

Applying more than one exemption Because the exemptions take many different forms (sometimes focusing on the content of the information, sometimes on who is handling it, and sometimes on the effect of its disclosure), and because the interests they protect are usually broadly defined, there is considerable potential for overlap.

There will often be scope for more than one exemption to apply to information which it is not in the public interest to release. You can cite more than one exemption (except in the specific cases outlined below) when responding to an information request if you decide to withhold the information. The overlap of qualified exemptions will often indicate the relevance of several dimensions of the public interest which ought to be taken into account in considering whether to disclose the information. You must ensure that each exemption relied upon is satisfied on its own terms.

Certain exemptions cannot be applied together In a very few places, the Act specifically provides that certain exemptions cannot apply simultaneously to information for example:

section 24(1) (national security) does not apply to information already exempt under section 23(1) (information supplied by or relating to a security body) (though on occasion with this exemption you will need to tell the requester you are applying either s23 or s24 and not specify which)

section 31 (law enforcement) does not apply to information which is already exempt under section 30 (investigations and proceedings)

section 36(1) (prejudice to the effective conduct of public affairs) does not apply to information which is already exempt under section 35 (formulation of government policy, and so on).

All these interrelationships are explained in the relevant sections of the detailed exemptions guidance.

In some cases, although no express provision is made, there will be a clear implication that certain exemptions cannot be applied simultaneously. This is particularly noticeable where, for example, the structure of the Act makes it unlawful to disclose certain information, but a qualified exemption could also apply to that information. Clearly, if there is no possibility of lawful disclosure of the information, it is not appropriate to consider at large the public interest in disclosure. So where a statutory bar to disclosure exists, the information will be exempt under section 44. It may be that other (perhaps qualified) exemptions apply but need not be considered. This may also be the case where the effect of an exemption is to require a request to be considered under a separate access regime such as the Environmental Information Regulations.

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Guidance on exemptions:

MoJ guidance: http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/exemptions-guidance/foi-exemptions-about

Or


Complete list of Exemptions Section 14 rejection – Vexatious and Repeated Section 14 of the Act is intended to protect public authorities from those who might abuse the right to request information. Section 14 is similar to an absolute exemption, if engaged, you do not need to provide any information or confirm or deny if you hold it. There is no need to consider a public interest test. You must, however, issue a refusal notice.

14(1) Vexatious Definition: A vexatious request is one that seeks to cause unnecessary aggravation or annoyance to the department.

In order to refuse a request under section 14(1) you will need to consider the wider context and history of the request, assessing if the request is unreasonable. You should also consider the following:

Does the request lack serious purpose or value?

Is the request designed to cause disruption or annoyance?

Would complying impose a significant burden in terms of expense and distraction?

Is it obsessive, harassing the authority or causing distress to staff?

Is the request likely to cause unjustified distress, disruption or irritation?

Is the request manifestly unreasonable?

If you are considering making a request vexatious please contact your relevant Disclosure Team in DACU immediately for advice. 14(2) Repeated Definition: When a requester submits an identical or substantially similar request.

You do not need to comply with a repeated request from the same person without a reasonable interval having elapsed since the MoJ complied with an earlier request. A reasonable interval for the purposes of the Act is identified as 60 days.

Sometimes, it may be a case of simply making the original request clearer.

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Guidance on Section 14 can be found via the following links:

MoJ guidance: http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/procedural-guidance/foi-vexatious


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Section 21 – information accessible by other means (Absolute – Class-based) Section 21 exempts information if that information is reasonably accessible to the applicant by other means. The aim of the exemption is prevent circumventing existing regimes or providing alternative means to access information.

You should assess if the requester who made the request can reasonably access the information by other means (i.e. information is already published online). Section 21 is different to the other exemptions which focus on disclosure to the public in general and the operation of which is applicant blind.

You are unable to NCND under this exemption.

Guidance on Section 21 can be found via the following links

Legislation: http://www.legislation.gov.uk/ukpga/2000/36/part/II

MoJ guidance: http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/exemptions-guidance


Section 22 – information intended for future publication (Qualified – Class-based) This exemption is engaged if the information is due to be published – there must, at the time the request was received, have been an intention to publish the information. However, you do not need to know the exact date of publication.

Two things to be aware of:

If it is reasonable to withhold the information until the date of publication

The public interest test must be satisfied

In terms of Advice and Assistance, you may wish to provide an approximate date the information will be published and where this will be located (if known).





Section 23 – Information supplied by, or related to, bodies dealing with security matters (Absolute – Prejudice-based) As the security and intelligence services are not public authorities for the purposes of the Act, they are no under any duty to disclose information. It is only information supplied by them to a public authority that should be assessed in line with the Act and under this exemption.

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The bodies this relates to are listed in section 23(3) and include the Security Service, Government Communications Headquarters and the Serious Organised Crime Agency (now National Crime Agency).

If you are considering this exemption:

If it appears that a case may engage this exemption you must escalate to your relevant Disclosure Team immediately.

Where engaged, you may need to consider the use of NCND.

Section 23 and 24 are closely linked and you should read both guidance documents.





Section 24 – National Security (Qualified – Prejudice-based) This exemption applies to information that should not be disclosed to safeguard national security and relates closely to Section 23 (information supplied by or related to security bodies). Therefore, in some circumstances the exemptions will be used together and you should familiarise yourself with both guidance documents.

The test to apply is whether the exemption is required for the purpose of safeguarding national security so you must be able to identify an undesirable effect on national security or the risk of such an undesirable effect that would occur if the information were released.


If it appears that this case may engage this exemption you must escalate to your relevant Disclosure Team immediately.


Section 23 and 24 are closely linked and you should read both guidance documents.





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Section 26 – Defence (Qualified – prejudice based) This exemption applies to information that would be likely to prejudice the defence of the British Islands or any colony or the capability or effectiveness of the Armed Forces of the Crown or any forces cooperating with them.

This exemption relates specifically to the effects of disclosure so you should establish how defence matters would be prejudiced by disclosure of the information.



Where engaged, you may need to consider the use of NCND





Section 27 – International relations (Qualified – prejudice based except S.27(2)&(3)) This exemption exists to protect the United Kingdom’s international relations, its interests abroad and the UK’s ability to promote and protect these interests and focuses of the effects of disclosure – not on the type of information.








Section 28 – Relations within the United Kingdom (Qualified – prejudice based) This exemption applies to information where disclosure would be likely to prejudice relations between two or more administrations in the United Kingdom – these are the government of

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the United Kingdom, the Scottish Executive, the Executive Committee of the Northern Ireland Assembly and the Welsh Assembly Government. The exemption focuses on the effects of disclosure and the risk of harm to such relations can be current or in the future.








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Section 29 – The Economy (Qualified – prejudice based) This exemption is engaged where disclosure would be likely to prejudice the economic of financial interests of the United Kingdom.



HM Treasury is the lead organisation for advice on this exemption – therefore consultation with them may be required.





Section 30 – Investigations and proceedings conducted by public authorities (Qualified- Class-based) This exemption is concerned with preserving the integrity of proceedings and investigations conducted by public authorities where information:

Has at any time been held for the purpose of specified criminal and other investigations or proceedings

Relates to the obtaining of information from confidential sources and was obtained or recorded for specified investigations or proceedings

This can only be applied if the public authority exercises one of the investigation or litigation functions that are specified in the exemption and focuses on the purposes for which information was obtained, recorded or held.






http://www.humanrightsinitiative.org/programs/ai/rti/implementation/applying_law/guidance_note_applying_exemption_investigation.pdf

There is a close link between section 30 and section 31 (see below) and the two cannot be applied to the same information. You should consider Section 30 first.

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Section 31 – Law enforcement (Qualified – prejudice based) This exemption protects a wide range of law enforcement issues and focuses on how disclosure would prejudice such interests. Some of these interests are quite widely drawn whereas others are very specific.






There is a close link between section 30 (see above) and section 31 and the two cannot be applied to the same information. Please also refer to the Section 30 guidance.

Section 32 – Court records (Absolute – Class-based) This exemption applies to information contained in particular litigation documents and court, tribunal and inquiry records.

This will apply if the public authority concerned holds the information solely because it was contained in one of the specified document, regardless of the content of the information.






Section 33 – Audit functions (Qualified – prejudice based) This exemption applies to any public authority which has functions in relation to the audit of accounts of other public authorities or the examination of the economy, efficiency and effectiveness with which other public authorities use their resources.

The exemption can only be claimed by the public authority carrying out the audit.




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Section 34 – Parliamentary Privilege (Absolute – Class-based) This exemption applies to information where disclosure would be an infringement of the privileges of either House of Parliament, protecting the freedom of each House to control its own affairs and not have its proceedings questioned.

It should be considered where a public authority is required to lay information before Parliament before disclosing it to anyone else. It does not apply if the information has been published by Parliament.






Section 35 – Formulation of government policy (Qualified – prejudice-based) This exemption is aimed at protecting the policy making process in order to maintain the delivery of effective government.

The exemption is closely related to section 36 (see below). Section 36 can only be applied to information that is not exempt under section 35






ICO guidance:

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http://www.ico.gov.uk/for_organisations/freedom_of_information/guide/refusing_a_request.aspx

Section 36 – Prejudice to the effective conduct of public affairs (Qualified – prejudice based) This exemption applies to information that if disclosed would adversely affect the delivery of effective central government and other public services.

It focuses on the effect disclosure would have, rather than the type of information.

The application of Section 36 requires approval of a ‘qualified person’, for MoJ this is a Minister of the Crown.



The exemption is closely related to section 35 (see above). Section 36 can only be applied to information that is not exempt under section 35.





Section 37 – Communications with Her Majesty, with other members of the Royal Household – (class based – Part absolute/Part qualified) This exemption applies to communications with the Royal family.

Communications with the Monarch, Heir to the Throne or second in line to the Throne or those acting on their behalf is now subject to an absolute exemption- the rest remain qualified.






ICO guidance:

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http://www.ico.gov.uk/for_organisations/freedom_of_information/guide/refusing_a_request.aspx

Section 38 – Health & Safety (Qualified – prejudice based) This exemption applies to information that would be likely to put the physical or mental health of any individual at risk or at greater risk.








Section 39 – Environmental information (Qualified – class based) This exemption applies to environmental information ensuring that all requests for such information are dealt with under the Environmental Information Regulations (EIR).





Section 40 – Personal Information (Class-based - Absolute (with two tiny exceptions) This exemption applies to requests for the personal information of the applicant or requests for the personal data of someone else (a third party).

Where an individual asks for their own personal information this should be treated as a subject access request under the Data Protection Act (DPA) and withheld under section 40(1).

Requests for the personal data of a third party are exempt under section 40(2) if;

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Disclosure would breach any of the eight data protection principles in the DPA

Disclosure would contravene section 10 of the DPA

If the data subject would not themselves be entitled to access the information if it is exempt under the DPA.

Releasing information that should be withheld under this exemption may result in breach of the Data Protection Act. Please refer to the DPA section for more information on the DPA.


S40(3)(a)(ii) and 40(4) are those only parts of section 40 that are qualified and so require a PIT, They are very infrequently used – and you may wish to contact DACU if you think you need to.





Section 41 – Information provided in confidence (Absolute – prejudice based) This exemption applies where disclosure would be an actionable breach of confidence – if a person who holds the information is under a duty to keep that information confidential and then proceeds to disclose it.

This exemption only applies if a breach of confidence would be actionable – so if a person could bring a legal action and be successful.







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Section 42 – Legal Professional Privilege (Qualified – class-based) This exemption applies to information that is subject to Legal Professional Privilege if litigation were in process. This covers confidential communications between lawyers and clients and particular information that is created for the purposes of litigation.

It will often be necessary to consult legal advisors as it is a question of law if information is subject to legal professional privilege.





Section 43 – Commercial interests (Qualified – prejudice based except S.43(2)) This exemption applies to information that would be likely to prejudice the commercial interests (commercial or financial) of any person (or the public authority that holds the information) and protects trade secrets.





Section 44 – Statutory prohibitions on disclosure (Absolute – class based) This exemption overrides the normal right of access to information where another enactment prohibits it.







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Consultation – interested parties in MoJ and beyond

You should be aware of any other business units across the department or third parties (i.e. other government departments) that may have an interest in the information we hold as they may have sent or supplied the information. For example, a document for use in prison establishments held by NOMS that was created by and is also held by the Home Office.

In this is the case, you may need to consult with the appropriate business unit/ government department to ask their opinion on disclosure. It is important to remember that any views expressed by consulted parties concerning the release of information is not determinative. As a KILO, you will take views into consideration and will make a final decision on disclosure.

Consultation may be likely when considering disclosure of information relating to:

Contracts and contract tenders

Other commercial information

Information provided by foreign governments

Information provided by other public authorities

Personal information about individuals (i.e. Ministers & MPs)

Correspondence between previous Ministers and MPs

Papers of a previous administration

A DS/ ADS can provide advice on consultation for requests.

Guidance on consultation can be found here: http://www.justice.gov.uk/information-access-rights/foi-guidance-for-practitioners/procedural-guidance/foi-public-authorities-third-parties

Right to a review (notification in response)

A requester is able to challenge our final decision (i.e. to refuse information) or how we handled the request (i.e. procedural – response issued outside of the 20 day statutory deadline).

The first stage of the appeal process is known as an Internal Review. When drafting the response, you must inform the requester of their rights under the Act - that they are entitled to an internal review procedure and how they do this. You must also inform the requester of their right to appeal to the Information Commissioner.

More information can be found in the ‘Appeals Procedure’ Section of this manual.

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Freedom of Information Working Assumptions

Working Assumptions links: Cabinet and Cabinet Committee information

http://www.justice.gov.uk/guidance/foi-assumptions-cabinet.htm Policy Advice

http://www.justice.gov.uk/guidance/foi-assumptions-policy.htm Parliamentary questions

http://www.justice.gov.uk/guidance/foi-assumptions-pqs.htm Press releases and communications advice

http://www.justice.gov.uk/guidance/foi-assumptions-press.htm Legal advice

http://www.justice.gov.uk/guidance/foi-assumptions-legal.htm Confidential information obtained from a foreign state or international organisation

http://www.justice.gov.uk/guidance/foi-assumptions-confidential.htm Public appointments

http://www.justice.gov.uk/guidance/foi-assumptions-appointments.htm Planning

http://www.justice.gov.uk/guidance/foi-assumptions-planning.htm Ministerial expenses

http://www.justice.gov.uk/guidance/foi-assumptions-expenses.htm Procurement

http://www.justice.gov.uk/guidance/foi-assumptions-procurement.htm Gateway reviews

http://www.justice.gov.uk/guidance/foi-assumptions-gateway-reviews.htm

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Appeals Procedure

Internal Review (IR)

Following a FOI request if a requester is unhappy with the way we handled their request they can ask for an Internal Review. The requester might feel that we failed to:

provide the information requested;

respond to a request within 20 working days;

provide proper advice and assistance;

explain any reasons for refusing the request; or

correctly apply an exemption under the Act.

The Internal Review process is the first stage in the complaint process but is the last opportunity for us, as a department, to make sure that we have applied the legislation correctly. At Internal Review, the case is considered again and the original decision re-examined. It takes time to conduct an internal review thoroughly, but it takes even longer to respond to an investigation from the ICO, so it is important we get IRs right.

The job of the internal reviewer is to assess whether MOJ has complied with its responsibilities under the FOIA, including timeliness and whether it conducted sufficient and reasonable searches; and to assess whether any exemptions were applied properly. Although independent, in order for the reviewer to build a full picture as to how decisions were made, it is best practice for the Internal Reviewer to discuss the original decisions with the staff involved.

Process and Timescales

As with first requests - the deadline for Internal Reviews is 20 working days.

Internal Reviews should not be answered by the KILO who answered the first request. If you have been assigned an IR for a case you answered, you must identify an individual in your team who was not involved in the original case to conduct the Internal Review. Once you have identified this individual they should send an acknowledgement letter to the requester.

Information Commissioner’s Office (ICO)

If you receive any correspondence from the ICO relating to a request you should forward it to DACU as soon as possible.

Following an Internal Review of an FOI the requester can ask the ICO to examine our decision.

On receipt of a complaint, the ICO will write to the public authority (ie the MoJ), and request information relevant to their investigation. This will always include a copy of the responses given by us to the requester, and information caught in-scope of the requests, with any cited exemptions highlighted on the information. The ICO set their own internal deadlines when requesting information from us, investigating the case, and issuing a Decision Notice.

When a complaint is made under the Freedom of Information Act against a public authority, the ICO investigates the facts behind the complaint. ICO reviews are extremely

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comprehensive, they may raise issues not previously considered and the ICO are able to request to examine all the information we hold in order to decide whether to support our decisions or not. The DS/ADS is likely to need to liaise with you about the detail of the request if you were the original or Internal Review KILO.

Once their investigation is complete, the ICO will normally issue a Decision Notice. This is the Commissioner’s view on whether or not the public authority has complied with the Freedom of Information Act or the Environmental Information Regulations, and can include legally binding steps for the public authority to follow (e.g. order us to disclose information). When a Decision Notice is issued, the ICO informs both parties of their right to appeal to the First-tier Tribunal (Information Rights). and failure to comply with it may result in contempt proceedings.

What is the relationship between the business area and DACU in dealing with an ICO case? DACU manage the relationship with the ICO, and are the single point of contact. The ICO will therefore correspond with us, and the response to the ICO will be issued from DACU.

DACU will provide guidance and assistance to ensure the ICO are provided with the information they need, and the MoJ’s interests defended. However, as with first requests and Internal Reviews, business areas are ultimately responsible for ICO cases – as it concerns your information, and the decisions taken by business areas at first request or internal review. Moreover, if an ICO case goes on to the Information Tribunal, business areas are responsible for the costs incurred. It is therefore vital that you engage closely with the process and are satisfied with the response provided to the ICO.

First-tier Tribunal and beyond

ICO decisions are open to challenge by the requester or MOJ through the Tribunals system. A tribunal can cost the Department anything up to £10,000 – 12,000.

The Tribunal is an independent body that hears appeals against ICO Decision Notices.

Tribunal cases will involve MOJ legal advisers, DACU and the business area. They can sometimes require Treasury Solicitors and Counsel to be instructed. Disclosure Specialists will work with you and the relevant legal advisers to decide whether to appeal a case to the Tribunal.

Business areas are responsible for covering the costs of Tribunal cases.

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