The right of access under the Freedom of Information Act (or ‘FOIA’) is very wide, and the rules require public bodies to ‘advise and assist’ at every stage of the process. This is good news for those making requests, but it pays to be realistic. Many public bodies are under-resourced, and some still lack anything approaching a sophisticated document management capability. So, despite the existence of legislation, getting hold of information can still take a lot of time and effort.

The sections below explain how to make requests and how to maximise your chances of getting the information you want.

1. 1.First steps
   

Who can make a request?

Anyone, anywhere in the world can request information using FOIA (or the Environmental Information Regulations, the ‘EIRs’). This includes companies and other organisations. The right of access applies irrespective of age, nationality or place of residence. 

Formulating your information ‘strategy’

Unless your request is straightforward it is usually worthwhile spending time formulating a strategy before you submit it. The two questions you need to answer before you do anything else are: what information do I actually want? and who is likely to hold it?

Identifying the information you want

When we talk about ‘information’ we usually mean one of two things: either a document which contains the information, or perhaps simply an answer to a question.

Before submitting a request, decide whether you want a particular document or extract, or whether you just want an answer to a question (leaving it up to the authority to decide how it answers).

For example, if you wanted information relating to the building of Heathrow Terminal 5, you could ask for copies of the documents containing the Department of Transport’s decision to approve the scheme, and any documents setting out the reasons for the decision. Alternatively, you could simply ask “when did the Department of Transport formally agree to permit the building of Heathrow Terminal 5, and why?” 

Who is likely to hold the information?

In many cases it will be obvious who holds the information. If you’re not sure, every public authority must operate a ‘Publication Scheme’ describing the categories of information it routinely makes available. Publication schemes are accessible via each authority’s website and should give an indication of whether an authority is likely to hold the information you want.

Central government departments all now operate an Information Asset Register (IAR) which lists unpublished information held by central government. The IAR is intended to help users identify, from one single source, the information held in a wide variety of government departments, agencies and other organisations. Further information is available at the Office of Public Sector Information website: www.opsi.gov.uk/iar/index.htm.

Increasing numbers of authorities also now publish disclosure logs which detail all FOIA and EIR requests and the information supplied in response. If the information you want has been requested before, then it may be included in a disclosure log.

In more general terms, the rules apply to all public authorities within central and local government, the health sector, the police and armed forces, and the education sector.

There is also a list of other public authorities in Schedule 1 of FOIA. A full list is available on the Ministry of Justice website.

Companies which are wholly owned by a public authority are also caught by the rules, even if they are not listed.  

Certain other bodies which perform functions of a public nature may also be caught if they have been designated as such for FOIA purposes by the Secretary of State.

Will the information I want be accessible using FOIA or the EIRs?

The right of access applies to all information which an authority holds, regardless of age, format, provenance or degree of accessibility. The rules also cover information held by someone on an authority’s behalf.

FOIA does not cover information held by a public authority only “on behalf of” someone else, but the EIRs do.

As will be apparent, the entitlement to access is extremely wide. However, the law does recognise that certain areas of government need to retain some measure of secrecy and that freedom of access to information by the public should be balanced with legitimate commercial and confidential interests. Accordingly, there are 23 ‘exemptions’ under FOIA, and various ‘exceptions’ under the EIRs.

The FOIA exemptions divide into two categories: ‘absolute exemptions’ and ‘qualified exemptions’. Absolute exemptions protect whole categories of information, such as records which relate to the security services. Qualified exemptions only apply where withholding information is in the public interest.

When assessing a qualified exemption a public authority must assess the public interest factors for and against disclosure. (All of the exceptions under the EIRs are subject to the public interest - they are not split into ‘qualified’ and ‘absolute’ as they are under FOIA.) You can read a summary of how the public interest test works here.

2. 2.Making the request
   

Initial contact

It is usually sensible to make initial contact with an authority by phone or in person to discuss your request. You may want to contact someone in the particular department likely to be responsible for the information you want (e.g. the planning department) or the authority’s Information Officer or Freedom of Information Unit. Sending your request to the wrong person can cause delay, so an initial conversation may ensure that when you make a ‘formal’ request, you have exactly the right contact details.

Many authorities have Information Officers whose job it is to deal with requests. An Information Officer should be able to help you focus your request so that you can access the information you want as quickly and cost-effectively as possible. Knowing the name of the Information Officer will also ensure that your request gets dealt with promptly. A telephone conversation before sending a request may help the Information Officer understand the context of your request, which should help him or her to find the information.

Always keep a note of any conversations that you have with a public authority, including the name of the person you spoke to, the date and time, and what they told you. Any correspondence should refer back to your conversation. Do not be put off by unhelpful staff, or by staff who tell you that you will not be able to access the information you want.

A Code of Practice requires all public authorities to publish their procedures for dealing with requests and to supply details of who applicants should contact. Authorities must also provide a telephone helpline number. This information will normally be available on the authority’s website.

Making a formal request

There are very few formalities for making a request.

For a request under FOIA, the request must:

1. •be in writing (which can include email);
   

2. •be legible (although it does not have to be in English – requests are permitted in any language);
   

3. •state the name and address of the applicant;
   

4. •describe the information requested; and
   

5. •be capable of being used for subsequent reference.
   

Requests made under the EIRs do not have to be in writing (they can be made orally or even using sign language) although written requests are always preferable, to ensure there’s a record and to avoid confusion about the scope of the request and when it was made. If you do make a request orally, make sure you record the name of the person you spoke to, when you spoke to them and what you asked for. Ask them to read the request back to you to confirm they have understood what you want. Even then, it is sensible to follow up the request in writing.

It is not necessary to state that a request is a “freedom of information request” or an “environmental information request” or to refer to either piece of legislation. Nevertheless, it is always sensible to do so because this will make it clear to the authority how the request must be treated. 

Where a request is made by email it is advisable to include a postal address as well as an email address. This is because an authority may have grounds for refusing a request if the information is held only in hard copy and would therefore have to be scanned for response by email. Also, even if an authority does have scanning capability it will probably want to pass on to you the cost of scanning documents.

Under FOIA (but not the EIRs) authorities are generally not obliged to answer requests by telephone, although in exceptional circumstances, where someone is not capable of making a request in writing, an authority may take a note of an application over the phone. The rules require authorities to advise and assist you so this should mean that telephone applications receive appropriate instructions for submitting the request in writing. Authorities are not permitted simply to dismiss telephone requests out of hand.

Sometimes it may be quicker and cheaper to go and inspect the information you want rather than (or before) asking for copies. Generally, it is more difficult for authorities to charge you for accessing information if you simply ask to inspect it. Although it may be more time consuming initially, a preliminary inspection may also enable you to decide what information you really do need, and to take copies only of the relevant parts.

Describing the information you want

Generally, requests should be as specific and comprehensive as possible. Requests which say simply “all files relating to X” are still valid, but they may be costly to process and you may not be entitled to the information unless you’re prepared to pay. Also, the larger the volume of information you request, the longer it will take to assemble.

If you know the document you want, then name it. Always include relevant dates or ranges of dates, document references, authors’ and recipients’ names and the names of committees or other relevant bodies. If possible, limit your request to particular formats of information, such as letters, reports or emails. If you think you know how an authority came into the possession of a piece of information, then this may assist the processing of your request.

Some basic examples of how to describe information:

1. •“the ABC Ltd contract let in February 2005 for the supply of waste management services in Chelsea and Westminster”;
   

2. •“the tender documents submitted by XYZ Ltd in response to the Invitation to Tender dated 28 April 2005, reference number 1234567”;
   

3. •“correspondence between the Grants Department of Bradford Metropolitan Council and the Agricultural Subsidy Committee of the Department for the Environment, Food and Rural Affairs in relation to the application of Mr John Smith of Bennet’s Farm, Bradford, application number 89101112”.
   

If you don’t know the specific document you want, describe it as specifically as you can. It may help to refer to the source from which you learnt about the information, e.g. a newspaper article.

Remember that authorities are obliged by law to advise and assist you, and this includes helping you to identify and describe the information you want. Advice and assistance could include:

1. •providing an outline of the different kinds of information which might meet the terms of your request;
   

2. •providing access to detailed catalogues and indexes, where these are available, to help you ascertain the nature and extent of the information held by the authority;
   

3. •providing a general response to the request setting out options for further information which could be provided on request.
   

Authorities cannot expect you to have identifiers such as file reference numbers or descriptions of particular records, unless this information is made available by the authority itself for applicants’ use. Where you don’t have this it is sometimes worth making your requests in ‘stages’ or ‘layers’.

Staged requests

Staged requests ask initially for a list of the types of information which an authority holds on a particular subject, followed by a further more focused request based on this information.

A staged request might start with a request along the lines: “I am interested in the Mount Vernon apartments development. Please can you provide me with a list of the names of files that contain, or may contain, information about the development. Please provide me with the names (and references) of the files and tell me whether they are electronic or manual files.  Please provide me with a description of the type of information contained in each file.”

When you have this information, you can make a more focused request for specific pieces of information based on the file names and references you receive. This will often be less costly and more focussed than a general request. It will also help you to understand the way the authority manages its information.

Layered requests

It can be effective to ask a series of requests in one letter, moving from the more general to the more specific. Even if the more specific information is refused, you may still get access to the more general. Accessing the general information may be sufficient, and may help you challenge the refusal of the more specific information.

For example, you might ask for the following information in a single letter or email:

1. 1.The number of traffic accidents on West End Lane in 2004;
   

2. 2.The number of traffic accidents on West End Lane in 2004 in which a cyclist was involved;
   

3. 3.Details of any traffic accidents on West End Lane in 2004 involving a cyclist; such details to include at least:
   

1. (a)The date of the accident;
   

2. (b)Details of the parties’ vehicles;
   

3. (c)Names of the parties.
   

Staged or layered requests are a valid means of eliciting the information you want but you should take care not simply to make the same request more than once. Although there is no particular limit to the number of requests you can make, if you make the same request more than once within a short period it’s likely the authority will refuse it on the grounds you are simply asking for information which has already been disclosed or refused. Authorities are also entitled to refuse requests which they consider to be part of an organised campaign.

If after assistance has been provided you are still unable to describe the information you want sufficient to enable the authority to identify and locate it, then the authority is not required to seek further clarification. Any information which the authority has found by that stage should be disclosed and it should also explain why it can’t take the request any further. It should also give you details of its complaints process and your rights of appeal against its response.

Costs for making requests

Under FOIA, requests are free provided the cost of answering them does not exceed £600 (for central government) or £450 (for all other public authorities). The cost is calculated using a government published figure of £25 per hour, per person, spent identifying, locating, retrieving and extracting information. Based on the £600/£450 thresholds, this equates to around three-and-a-half or two-and-a-half days’ work respectively.

If the cost exceeds the appropriate limit then the authority can refuse the request. Alternatively, it can offer to respond for a fee. The fee must not exceed the total costs the authority reasonably expects to incur in answering the request. For this purpose, authorities are entitled to charge for photocopying and postage, and also for the costs of complying with an applicant’s preferred means of communication (see below). 

There are no cost thresholds for answering requests under the EIRs. Authorities may levy a charge for making information available, provided the amount is reasonable (and they must provide a schedule of charges if they propose making a charge). Generally, charges must not exceed the actual cost of producing the information.  Authorities are not permitted to charge for providing access to environmental information which is available on a public register.

The more specific a request, the cheaper it will be for the authority to answer. For this reason, requests should be as specific as possible. It may be possible to reduce costs by asking the authority to provide information on a CD-Rom or by email.

Where an authority proposes making a charge, they must notify you in advance so that you can decide whether to continue with the request. They are not entitled to process the request and then simply bill you when they send the information.

Under FOIA, where a whole series of requests are made together or in quick succession, authorities may be entitled to treat them as a single request. This means it is not normally be possible to keep a request below the cost thresholds by dividing it up into several smaller requests. The better approach is to be as specific as possible about a piece of information in order to help the authority find it quickly (see above in relation to describing the information you want in a request).

You should bear in mind that although a certain amount of work must be undertaken by authorities for free when processing requests, the amount is finite. Similarly, authorities are not required to collate and despatch large volumes of paper for nothing. The rules provide for a certain level of service, but also recognise that the burden on the taxpayer should be limited to reasonable levels.

3. 3.Getting an answer
   

Time limits for a response

Under FOIA, when an authority receives a request it must respond within 20 working days, unless:

1. •it needs more information about what you are requesting;
   

2. •it proposes to charge you a fee (see above); or
   

3. •the information requested is covered by a qualified exemption (see above), in which case the authority is entitled to take as much time as is reasonable to decide where the balance of the public interest lies. 
   

If the authority proposes to charge you a fee then it must send you a fees notice. You will then have 3 months to pay, failing which the request will lapse.

Under the EIRs, authorities must respond to requests within 20 working days unless the complexity and volume of the request make it reasonable to extend the time limit, in which case it may be extended to 40 working days. No extension beyond 40 days is permitted, and the time limits apply even where the authority is considering the application of an exemption or the balance of the public interest.

Format of the response

You can request that information be supplied in any form, but it’s likely the authority will charge you for the cost of doing so if it will be expensive. You are however entitled to express a preference for a copy of the information, or a digest or summary, or the opportunity to inspect a record containing the information. The authority must comply where this is reasonably practicable. When requesting large numbers of documents it may be cheaper to ask to be able to inspect them.

It should be possible to have information supplied in Braille or audio format, in large type, or translated into another language.

Refusals of requests

Under FOIA, an authority may only refuse a request if:

1. •it doesn’t hold the information;
   

2. •the information is exempt (see above);
   

3. •the cost of answering it would exceed the £600/£450 limit (see above);
   

4. •it is entitled to charge you a fee which you don’t pay (see above); or
   

5. •your request is “repeated” or “vexatious” (see below).
   

The EIRs permit requests to be refused only if:

1. •the authority doesn’t hold the information;
   

2. •the request is manifestly unreasonable;
   

3. •the request is too general;
   

4. •it relates to material which is still work-in-progress;
   

5. •it would involve disclosing internal communications; or
   

6. •one of the exceptions applies (these are broadly similar to the FOIA exemptions).
   

If information is exempt and the authority refuses the request on this basis, it must identify which exemption applies and tell you how to apply for an internal review of this decision if you disagree with it. If after an internal review the authority still refuses the request, then you are entitled to ask the Information Commissioner to review the decision if you disagree with it.

Understanding and dealing with responses

All being well the authority will answer your request by supplying the information you requested. If not, then you should get one of the following responses:

1. (a)A holding letter
   

This may simply confirm receipt of the request and inform you that you will get a full response in due course. That is fine, but you should check for the following:

1. (i)A request for payment – this means that time stops running until you’ve paid.
   

2. (ii)A request for you to clarify your request, either because it’s formulated too generally or because the authority does not understand it – again, time stops running until you’ve responded.
   

3. (iii)Reference only to FOIA when in fact the request should be dealt with under the EIRs – this is a common mistake and you should respond by reminding the authority that it should process the request according to the EIR rules.
   

If the letter contains an estimated date of response, chase it up if you don’t received one by that date. Note down also any reference number provided by the authority – it will help you keep track of the request.

2. (b)A time extension letter
   

Sometimes authorities will tell you they need more time. They may be entitled to an extension but you should look out for the following, depending on what type of information you have requested:

1. (i)If your request is for environment information, an extension is only permitted where the complexity and volume of information requested make it impracticable to respond within 20 days. Even in these circumstances, time can only be extended for a maximum of 20 working days.
   

2. (ii)Where your request is for non-environmental information, there can only usually be a time extension if the authority needs further time to consider the public interest. There is no absolute time limit for responding in such a case but you’re entitled to ask for a clear statement of when the information will be provided.
   

3. (c)The fees notice
   

As noted above, in some circumstances an authority is entitled to charge you for releasing information. Any demand for payment automatically extends the time for responding by the period between the demand and corresponding payment. You are not obliged to pay, but the authority can refuse your request if you don’t.

Where you receive a request for payment and you think it is unreasonable, consider the following:

1. •Is the sum consistent with the authority’s charging schedule (for EIR requests)?
   

2. •Does the authority explain clearly how it has calculated the amount demanded, and is this consistent with what it’s allowed to charge under FOIA or the EIRs?
   

3. •Has the authority proposed alternative ways of providing some of the information for free?
   

4. (d)The refusal
   

Where you receive a clear refusal to release information, you need to consider carefully the terms of the refusal.

1. •Has the authority complied with the procedural requirements for refusals (see above)?
   

2. •Do you agree with the reasons for refusing to release information (e.g. does any exemption which the authority cites seem relevant and appropriate)?
   

Do not assume the authority is right. The exemptions are complex, and the people answering your request will often be no more expert than you are. In some ways (particularly in relation to the public interest), they may be less so, as you may know more about the subject matter and background of the request. This will put you in a strong position to argue the public interest in favour of disclosure in your particular case. If your request is for environmental information, make sure the authority has made its refusal on environmental information grounds, rather than FOIA grounds.

Just because an authority is legally entitled to withhold some of the information in a document does not necessarily mean it can withhold all of it. They must release any part of the document which is not exempt, provided it’s possible to separate out the exempt and the non-exempt parts. The fact that removing the confidential information is a difficult job will not normally constitute an exemption.

5. (e)The partial refusal
   

Sometimes you’ll be sent some of the information that you asked for but not all. In such a case, your request may have been refused in part. You should satisfy yourself that the authority has complied with the requirements for refusing to release information (see above).

Sometimes authorities will send documents with sections blacked out (this is known as ‘redaction’). This will often happen where a document contains personal data or certain types of commercially confidential information. Where a document has been redacted you should ensure the authority has given a clear explanation. The explanation should cover every bit of information which has been redacted.

6. (f)The non-response
   

If your request specified a time by which you wanted the information and it has not arrived by that date, consider chasing it.

If you don’t get a response within 20 working days, phone the person you wrote to (or perhaps the Information Officer at the authority) to complain and ask where the information is, and immediately follow up with a letter. There are no lawful excuses for failure to respond as long as you provided the authority with the correct contact details.

A failure to respond within the legal time limits is unlawful and may result in censure by the Information Commissioner. Consider writing directly to the authority, seeking a formal reconsideration of its failure to respond. If that fails to elicit a response, complain to the Commissioner.

7. (g)Mis-categorising your request
   

Where you’ve made a request for environmental information and the authority has processed your request under FOIA, you’re entitled to require that they deal with your request properly. Your rights under the EIRs may be different to your rights under FOIA.

Depending on the precise nature of the response, you may need to apply for a formal reconsideration under Regulation 11 of the EIRs.

8. (h)The transfer letter
   

If an authority doesn’t hold the information you’ve requested but knows that it’s held by another public body, then it’s entitled to transfer the request or to tell you that the other authority holds the information. However, read the letter carefully to check that it’s not transferring the request for any other reason. For example, the authority might try to transfer the request even if it does hold the information, simply because it would rather another authority dealt with the request. This might happen if the authority has received the information from another authority and is not sure how to deal with the request. This type of transfer is not lawful.

Using the information once you receive it

Disclosure of information under FOIA does not remove the copyright in it, so you must abide by any copyright restrictions on use. 

4. 4.Appeals
   

The right to dispute the way the authority handled your request

There are various grounds for disputing or complaining about an authority’s response to a request:

1. (a)You may dispute any refusal to disclose information, whether this is:
   

1. (i)under an exemption; or
   

2. (ii)because the authority says you have not described it in a way which enables the authority to locate it; or
   

3. (iii)because the authority says the request is repeated or vexatious.
   

2. (b)You may complain if the information is supplied late (see above in relation to time limits for complying).
   

3. (c)You may dispute any fees which the authority asks you to pay.
   

The process of complaining and appealing

Any complaint or appeal should first be made to the authority itself.  When the authority refuses your request it is required to supply details of its internal complaints process, so use these details to complain in the first instance.

If you’re dissatisfied with the outcome of the authority’s internal review you can ask the Information Commissioner, the UK’s freedom of information watchdog, to review the way your request was handled (see www.ico.gov.uk). The Commissioner is obliged to investigate your complaint for free. When applying to the Information Commissioner you should include:

1. •a covering letter explaining what you would like the Commissioner to assess;
   

2. •a copy of the initial request or, if the request was verbal, any details of the request which you recorded;
   

3. •a copy of the authority’s initial response;
   

4. •a copy of the complaint you made to invoke the authority’s internal review/complaints procedure;
   

5. •a copy of the authority’s response following the internal review/complaints procedure;
   

6. •any other information which you think is relevant;
   

7. •an indication of any particular urgency (the Information Commissioner’s Office does not guarantee to respond to complaints within a particular time but they will take into account any special circumstances); and
   

8. •your own contact details, to enable the Commissioner’s Office to obtain any further information from you.
   

The Commissioner will notify you of the outcome of his investigation by sending you a ‘Decision Notice’. You are entitled to appeal a Decision Notice to the Information Tribunal (as is the public authority itself if it disagrees with the Commissioner’s decision). Any appeal from the Information Tribunal must be to the High Court.