Freedom of Information Act

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For many years’ pressure groups have been campaigning for access to information held by government departments and public bodies, which, as we as we all know, tend by nature to be secretive. Bit-by-bit pressure groups, individual members of parliament and others have overcome the intrinsic barriers to letting us know what is going on.

In 1994 the then Government moved some way to giving us better access to information about government departments creating a Code of Practice for Open Government, which led to the creation of the Patients’ Charter by the Department of Health which was at least a step in the right direction. But it took until the end of 2000 for actual law to be passed directing public bodies to meet the information needs of the public. The Freedom of Information Act was passed in that year but not implemented. It gave general right of access to all types of information held by all public authorities but its full implementation date did not come into effect until January this year, hence the current flourish if interest and activity.

However it isn’t just us who can benefit from this new opportunity. In reality the Act gives access to anyone including journalists, political parties lobby groups, commercial organisations and UK citizens overseas and even non-UK citizens.

So, since the New Year’s Day (1st January 2005) all public authorities must answer ALL requests for information held on file. The NHS is covered by the new legislation and must provide all types of recorded information it holds when requested to do so. Compliance with Act is compulsory and there are penalties for non­compliance, which apply to the organisation itself, and to individual members of staff involved. Indeed continued failure to comply could result in a prison sentence.

What type of information can be requested? The answer to this is any type of information that the authorities believe will not cause significant harm. Mainly, this means harm to the State, of course, and refers to national security and law enforcement. It also applies to harm to an individual such as one suffering from a mental illness where, in the opinion of the information holder, disclosure could cause them damage.

Within this context public employees including those in the NHS have been advised to be as open as possible and to supply any information that is requested.

What does this all mean for us? From now on we can no longer be fobbed off from obtaining information by the public body merely invoking vague reference to data protection, client confiden­tiality or commercial confidence. For instance within the NHS we can obtain the following types of data: ­

Waiting lists
Hospital episode statistics ­including individual doctors success rates
Accident and emergency waiting times
Ambulance response times
Information regarding complaints from health regulatory bodies such as the General Medical Council for medical practi­tioners, the Nursing and Midwifery Council, The Healthcare Commission covering information about other healthcare professionals) and the Healthcare Ombudsman
Inspection reports - (via the Healthcare Commission)
Financial information - available in the annual report of the relevant organisation
Medicines safety and clinical trial data - via the Medicines and Healthcare products Regulatory Agency (MRHA)

The new Freedom of Information Act is, as you would imagine, intrinsically bound up with the Data Protection Act and with the Human Rights Act, both of which give partial protection from disclosure of personal information about us. An Information Commission has been established to oversee the working of all three pieces of legislation. The role of the Information Commissioner will not only concern general data held by public bodies but also, it is hoped, act as an adjudicator where information about oneself is denied for example on grounds of perceived risk to physical or mental health of the subject.

If individuals or groups use the Act in a ‘vexatious’ way access to information can be denied. This would apply if repeated requests are made for data already provided. Also there is a cash limit. If the provision of the retrieval of information costs a government department more than £600 or another public organisation more than £450 it may be refused. There are other grounds for refusing to provide information, 23 in all, but these are discretionary which means they can be overruled if it is thought the information sought is in the public interest.

In practice, all that you have to do, as a member of the public, is to make an application in writing. The targeted public body must reply within twenty days.
Should your request be refused an appeal can be made to the organisation in question. If this does not produce the required result you can appeal to the Information Commissioner, thence to an information tribunal and, if all else fails, an appeal can be made to the High Court. While all this seems daunting it should be remembered that the public body which fails to meet its duty to disclose information could be charged with contempt of court resulting in a possible fine or even jail for respon­sible individuals, not to mention bad press coverage. From guidance that the NHS has provided for its staff it is clear that the new law is being taken seriously and that healthcare professionals will be expected to comply in full. This seems to be true of Social Services also.

Will it make a difference to our lives? While the intention is no doubt to help individuals and groups with a genuine need or grievance there is a potential for abuse by the media and by those wanting to obtain information for political gain.

On the positive side it should be easier for us as individuals or as a patient support group like the PAA to obtain information on local as well as national services and to build comparisons with those elsewhere in order to enhance campaigns for improved care.

In contrast to the opportunities afforded by the Freedom of Information Act there is a growing issue concerning data held about us by public and private organisations
and how third parties can gain access to it. Much of this is to our benefit in terms of disease management and possible cures but the gain is not without some risk to privacy. The debate will continue…

Author: Chris Friend
First published: 2005. Skin ‘n’ Bones Connection, issue 21 p6-7. ISSN: 1475-4134