Using the Freedom of Information Act

The Freedom of Information Act 2000 (FoIA) came into force on the 1st January 2005, and it provides us with a key tool for retrieving information regarding the investments of public bodies, especially in cases where no useful responses to requests have been received. As well as central government, the Act covers universities, colleges, NHS trusts and local authorities.

If a public body does not respond to your initial request, or sends a deliberately unhelpful reply, then the next step is to formally request the information under the terms of the FoIA. It is important to remember that under the Act public bodies:

• Cannot refuse to provide the information requested unless it is exempt - see below.
• Must indicate whether they possess the information requested.
• Must assist or advise where it is 'reasonable ' to do so.
• Must respond within 20 working days (this may be extended if a body is considering the 'public interest' but this extension must be 'reasonable').
• Cannot charge you for retrieving the information unless the cost is calculated to come to more than £450. If the cost is lower than this then they can legitimately charge you for any photocopying or postage fees incurred by your request. The Act encourages charges of under £5-10 to be waived.
• Must inform you of the appeal process.

The FoIA request just needs to be in a standard letter or email format, should mention the FoIA and must state your request clearly and specifically. (Any request for information is actually an FoIA requests but it might avoid delays to state explicitly that your are asking under the FoIA.) If the public body finds your request unclear, or believes that the scope is too wide, they need to let you know and should advise you on making a new request.

The FoIA should have a positive impact on the accuracy and relevance of information received from public bodies, and will enable campaigners to follow up negative responses where previously a dead end would have been reached.

Some categories of information are exempt from disclosure. The one most likely to be cited in response to CAAT enquiries such as for the Clean Investment Campaign is Section 43. This covers 'information which would, or would be likely to, prejudice the commercial interests of any person including the public authority holding it'. Unfortunately, Section 84 of the Act, which defines the meaning of a number of words and phrases, does not include a definition of 'commercial interests' so interpretation will be subject to Case Law. However, it is outlined in the Act that it is in the public interest that public funds are accountable and transparent, and this is worth bearing in mind. A public body cannot just decide that something is commercially sensitive - all exemptions must be justified and supported with evidence.

Initial examples of the use of the FoIA in the Clean Investment Campaign

CAAT always sends letters to each investor prior to publishing the shareholdings and it was striking how many more responses there were this year, confirming shareholdings or providing new figures, compared to previous years. This was despite CAAT not quoting the FoIA.

CAAT received a response from an Oxford college stating that a charge of £25 per hour would be levied for the retrieval of investment information. We replied that we would like to formally request the information under the terms of the FoIA, as this states that fees for retrieval can only be charged if it costs over £450 (based on the charge scheme in the Act this is 2.5 days of person hours). A week later we received a response with the details of investments as requested.

Many public bodies do not have direct investments in companies, and instead they invest their money in pooled/managed/collective funds. This means that the institution's money is invested along with that of other organisations, and this is then divided up to buy shares in many different companies, according to what their fund manager decides. Of course, the FoIA does not cover private companies, but if the public body holds any information about their investments it is eligible for release under the Act. For example, one Cambridge college initially responded with the name of their fund management company suggesting we request further information from them. We responded to the college, under the FoIA, asking for details of their fund size and breakdown of investments - receiving a response the same day. Previously we would have been in a futile situation where neither the fund management company nor the institution was willing to provide the information, each just being able to indicate we chase up the other party.

The Freedom of Information Act can be found on www.foi.gov.uk

The following extracts from the Act seem to be the most relevant:

Part 1 - Access to Information held by Public Authorities
Section 1 - General right of access to information held by public authorities - states: -
(1) Any person making a request for information to a public authority is entitled :
(a) To be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) If that is the case, to have that information communicated to him.

Section 17 - Refusal of request - states:
(1) A public authority which, in relation to any request for information, is to any extent relying on a claim that any provision of Part 2 relating to the duty to confirm or deny is relevant to the request, or on a claim that information is exempt information must, within the time for complying with section 1 (1), give the applicant a notice which -
(a) states that fact
(b) specifies the exemption in question, and
(c) states (if it would not otherwise be apparent) why the exemption applies.

Part 2 - Exempt Information
Section 43 - Commercial Interests - states:
(1) Information is exempt information if it constitutes a trade secret
(2) Information is exempt information if its disclosure under this act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).