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The Public's New Rights of Access

1. The 'Right to Know'

The right under the FoIA to request official information held by the University (known as the right to know) came into force on 1 January 2005. This right to know is set out in Section 1 of the Act, and comprises two related rights:

  • The right to be informed whether or not the information requested is held by the University (the duty of the University to confirm or deny), and if so:
  • The right to have that information communicated.

There are, however, circumstances under which the University may refuse a request or reasonably delay provision of the information requested, as set out in Exemptions from Access and Time for Compliance.

Although in practice the two rights that form the public's right to know are likely to merge, in principle these rights must be considered separately and, when applying the public interest test (see Qualified and Absolute Exemptions), consideration should be given firstly to whether it is right to confirm or deny the existence of information and secondly to whether that information should be supplied.

It should be emphasised that the FoIA entitles individuals to access to information, not to documents. It may often be the case that the easiest way to provide the information is to supply a copy of the relevant document. However, given that the document in question may also contain a significant amount of other, potentially confidential information, documents may be redacted (either by 'black-penning' hard-copy documents or by deleting protected content from electronic documents). If an applicant has requested all the information in a particular document but it is necessary to redact some of that information because it is exempt, the University will make it clear that redactions have taken place, citing the relevant exemption.

Redaction is by no means necessary, however; in many cases it may be more appropriate to create a new document containing solely information that can be released, indicating where a redaction has taken place and citing the relevant exemption. This is likely to be particularly relevant where the majority of the information contained in the document does not fall within the scope of the applicant's request.

Special provisions apply where the request asks for information to be provided in a particular form. Notwithstanding the fact that the FoIA provides for access to information, not documents, if it is reasonable to comply with an applicant’s request in regard to the form in which information is disclosed, it is good practice to do so (see Reasonable Adjustments).

2. Information Covered by the Right to Know

All recorded information held by the University is covered by the right to know. Under the FoIA, 'holding' information includes holding a copy of a record produced or supplied by someone else. The following are some factors that may need to be considered before deciding whether the information that has been requested falls within this category.

(a) Some or all of the information is held by another public authority

If some or all of the requested information is not held by the University but it appears that it might be held by another public authority then it may be necessary to transfer the request to the second authority. This includes cases where information is held by a third party on behalf of the University.

(b) Information that is held on behalf of a third party

If the University is holding information on behalf of a third party, then it may not have to provide the information in response to an FoIA request. Whether information is held on behalf of someone else will depend on the precise circumstances involved and advice should always be sought with the University Secretary’s Office in these instances.

It should be noted that the Students’ Union does not fall under the definition of a public authority as specified in the Freedom of Information Act, whether as a separate body or as part of the University. Information belonging to the Students' Union which may be stored on the premises or systems of the University is deemed to be held by the University on behalf of the Union and is therefore not subject to the Act.

(c) Recorded information

The right of access applies to information recorded in any form. This includes the following:

  • information that is held electronically (such as on a laptop computer or an electronic records management system);

  • information that is recorded on paper (such as a letter, memorandum or papers in a file)

  • sound and video recordings (such as a CD or video tape);

  • notes that have been written in the margins of a document, note pad or post-it note.

(d) Stored information

The right of access also applies to information that is in storage, for example information contained in the University’s Archive. Different provisions apply in relation to information which has been transferred to The National Archives. Any information in The National Archives is deemed to be held by The National Archives and decisions on releasing such material will therefore rest with The National Archives. The University will then have a general duty to redirect the applicant to The National Archives.

(e) Information that has been deleted or amended

The right to know applies to information held by the University at the time that the request is received. If it appears that requested information has been deleted or amended, it is important to identify whether the information was deleted or amended before or after the request was received.

Where information has been deleted or amended prior to the request, it is possible that multiple versions of the requested information may be held and it should therefore be established which version or versions should be disclosed. It should be noted that in the case of electronic documents, deleted information may well be retrievable, for instance where the relevant document is stored in such a way that it could easily be recovered (for e.g. from the Recycle Bin). Such information is still considered to be 'held' and will have to be provided. In contrast, where deleted data is only retrievable with substantial cost and disruption to the system, it may be regarded as having been permanently deleted. This information is no longer considered to be 'held' by the University and does not have to be retrieved or provided in response to a request.

It must be emphasised that information held by the University must on no account be deleted or amended in order to avoid complying with an FoI request. Altering, defacing, blocking, erasing, destroying or concealing information in order to avoid providing it in response to an FoI request may constitute a criminal offence under section 77 of the FoIA for which the person convicted will be held personally responsible. The only exception is where requested information is deleted from any computer, hard copy records management system or electronic filing system in line with the University's standard records management practices after a request is received, if it can be shown that the person deleting or destroying the document had no knowledge of the request at the time.