http://www.kirklees.nhs.uk/uploads/tx_galileodocuments/KPCT_FOI_Procedure_V2

PROCEDURE FOR MANAGING FREEDOM OF INFORMATION REQUESTS.

Responsible Directorate:

Corporate Services

Date Approved

11th October 2007

Committee

Governance Committee

Signature of Accountable Director Helena Corder

Print Name

Approval Committee: Version No: Date Approved:

1

Version Control.

Document Title

Procedure for Managing Freedom of Information Requests

Corporate Document number

TBC.

Author

Eve Scott

Contributors

V1 written by Eve Scott & Liz Harrison.

Version

V1.1

Date of Production

To be considered Information Governance Group on the 31st July

Review date

3 years after ratification or earlier if there are changes in the law.

Postholder responsible for revision

Assistant Director of Corporate Governance.

Primary Circulation List

All PCT Staff.

Web address Restrictions

None.

Standard for Better Health Map. Domain

Third Domain: Governance Fourth Domain: Patient Focus

Core / Development Standard Reference

C7, C9, C14, C16 1. All FOI requests responded to within 20 working days 2. No untoward incidents regarding the release of information 3.

Approval Committee: Version No: Date Approved:

A diminishing number of requests.

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CONTENTS Section No.

Page

1.

2.

History of Document

2

Introduction/Document Overview

2

3.

4.

Associated Policies and Procedures

2

Aims & Objectives

2

5.

Scope & Policy Guideline

2

6.

Standard Definitions

2

7.

Types of information that falls under the FOI Act. 7.1;

Format of the Request.

2

7.2;

Point of Contact.

3

7.3;

Response Times.

3

7.4;

Confirmation of receipt of the request.

3

7.5;

Advice and Assistance

3

7.6;

Accessing information.

3

7.7;

Refusing a request

4

7.8;

Transferring a request

7.9;

Consultation with third parties

7.10;

Audit Trail.

7.11;

Personal Information

7.12;

Conditions and Exemptions 7.12.1; Conditions

7.13;

8.

4

5

Exemptions available under Part II of the FOI 2000

5 5 5

Appendices 7

Appendix 1: Flowchart

Approval Committee: Version No: Date Approved:

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Procedure for Managing Freedom of Information Requests.

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1. History of Document Version One

2. Introduction The Freedom of Information Act (FOI) enables members of the public to scrutinise the decisions of public authorities more closely and make sure that services are delivered properly and efficiently. From the January 1st, 2005 the Act replaced the non-statutory Code of Practice on Openness in the NHS. The main features of the Act are: • A duty placed on public organisations to maintain a Publication Scheme.

• A general right of access to all recorded, non-personal, information held by the PCT (subject to certain exemptions).

• The establishment of an Information Commissioner’s Office to oversee compliance with this and the Data Protection Act 1998.

3. Associated Policies and Procedures This procedure underpins the Freedom of Information Policy. It should be read in conjunction with the following policies and procedures.

• Records Management Policy • Code of Conduct on Confidentiality • Procedure for handling an access request to a health record.

• Complaints Policy & Procedure • Incident reporting policy & procedure • Media Handling Policy

4. Aims and Objectives To ensure that all information is disclosed / withheld appropriately and that all FOI requests are responded to within the timescales laid down in statute.

5. Scope & Policy Guideline All directly employed members of Kirklees PCT must follow this procedure.

6. Standard Definitions Types of information that falls under the FOI Act. The Freedom of Information (FOI) Act gives people a general right of access to nonpersonal recorded information held by the PCT (subject to certain exemptions). Hence, any person who makes a request has the right to: a) Be informed in writing whether the PCT holds the information requested b) Be given the information if the PCT holds it However: all information that has always routinely been given to patients and clients as part of their normal care does not fall into this category and should still be given freely without the need to follow this procedure.

7. 7.1;

Format of the Request.

The request must be made in writing, either letter or e-mail and must include 2

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• • •

Their name Their address A description of the information required

Notes: • The request could be included in, for example, a compliment or complaint letter.

• An applicant does not need to give an explanation of the reason for the request.

• A request for information is not an access request under the FOI Act if you are providing information on the current care and treatment of an individual using established practices 7.2; Point of Contact.

The Corporate Governance Administrator, based at PCT Headquarters will be the point of contact for access requests made under the Act. If operational staff receive a written request that falls under the FOI Act they should alert the Corporate Governance Administrator by telephone (01484 46600) so that it can be dealt with within the required timespan.

7.3; Response Times.

The Act requires that requests are responded to within 20 working days. If the PCT decides to make use of a condition or exemption to withhold information, the applicant will be informed within 20 working days.

7.4; Confirmation.

The Corporate Governance Administrator will write to the applicant confirming receipt of the request within two working days. This will state that the PCT intends to deal with the request within 20 working days, unless there are exceptional circumstances.

7.5;

Advice and Assistance

If the applicant is requesting advice and assistance or has not provided enough information for the request to be dealt with they must be contacted and, depending on the situation: • Request further information • Give guidance on how to access the information under the Publication Scheme • Suggest other routes to access information, including directing them to other public authorities • Identify independent sources of help for applicants • Direct applicants to the complaints procedure if they are dissatisfied with any outcome 7.6; Accessing information.

The request will be forwarded to the person holding the information within two working days.

The information must be identified and provided within five working days. The information must be carefully scrutinised to make sure it does not fall within any of the exemption categories.

However, it is the responsibility of the person releasing the information to make sure that it has been scrutinised. This scrutiny should be undertaken by the most appropriate person with a detailed knowledge of that piece of information.

NB: Once a piece of information has been released, it cannot be withdrawn.

Any potential slippage in the timescales should be immediately brought to the attention of the Corporate Services Manager. This time might be extended in certain circumstances and the applicant informed.

The information should be provided in the form most acceptable to the applicant, which could be one of the following means • placing it on the PCT website (after discussion with the Assistant Director of Corporate Governance) 3

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• • •

a photocopy or printed copy made transferred by electronic means transferred onto a floppy disk

7.7; Refusing a request A request for information may be refused if: • the information is exempt under Part II of the Act • the cost of compliance exceeds the appropriate limit • the request can be demonstrated to be vexatious or repeated The applicant will be informed in writing of the decision within 20 working days of the request and will be told the following: • the exemption(s) that has been applied • the justification for the use of the exemption/s • if the exemption is non-absolute, explain why the decision is in the public interest • details of the PCT’s complaints procedure if they are not satisfied with the outcome This should be set out in a ‘refusal’ notice. (Refer Appendix B for a template for such a refusal notice).

If the exemption is absolute, then the PCT is exempt from the duty to confirm or deny that the PCT holds the information. In these circumstances, the applicant will be informed within 20 working days of the following: • the fact that the PCT is exempt from the duty to confirm or deny • specify the exemption in question • state why the exemption applies (unless it would be otherwise apparent) It is acknowledged that it can take more than 20 working days to reach a decision as to whether all or some of the information is exempt, especially in cases where the public interest has to be considered. As a result the applicant must be informed of the delay and given a reasonable estimate of the date by which a decision is expected.

7.8; Transferring a request All or part of a request can be transferred to another public authority if it becomes apparent that the PCT does not hold the information concerned. A transfer should only occur if it has been established that the other authority does hold the information concerned.

The PCT must write to the applicant and explain that it does not hold the information and give the applicant an indication of which organisation does hold the information.

NB: A request must not be transferred outside the PCT without the applicants consent.

7.9; Consultation with third parties In the event that a request contains information about third parties the Corporate Services Administrator, in liaison with the Information Confidentiality Manager from the THIS service, will refer to the Lord Chancellor’s Code of Practice on the Discharge of Public Authorities’ Functions under Part I of the Freedom of Information Act 2000, issued under Section 45 of the Act. 7.10; Audit Trail.

When dealing with a request, the following information must be recorded: • Initial date received by the PCT • Name of the initial recipient • Name of the applicant • Contact details of the applicant • Description of the information requested • Format the information was requested in • Format the information was sent 4

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• • • •

Follow up action taken if necessary Decision taken and details of any exemption used Name of the individual who scrutinised the information prior to its release Date completed and sent to the applicant

7.11; Personal Information Personal data is information about a living individual from which the identity of that individual can be worked out. It may take any of the following forms: • Computer documents • Information processed by a computer or other equipment (e.g. CCTV) • Information in medical and other records • Information in some forms of structured manual records • Unstructured personal information held in manual form by a public authority (the applicant is likely to be asked to provide extra details to locate the information requested) If the person requesting the information is the subject of the information, they must make a subject access request under the Data Protection Act and the Procedure for Managing Access Requests to Health Records must be followed.

7.12; Conditions and Exemptions 7.12.1 Conditions The PCT can postpone dealing with a request if: • It reasonably requires more information to identify and locate the information requested and has written to the applicant informing them of this. The PCT will make reasonable efforts to contact the applicant for the additional information.

• If complying with the request would exceed the appropriate limit established in the National Fees Regulations. The PCT will work with applicants to keep compliance costs to a minimum, but maintains the right to refuse such a request.

• If the request is vexatious. If the PCT has recently complied with a request for information then it is not required to comply with a subsequent identical or highly similar request unless a reasonable time interval has elapsed. A log of all requests will be kept for monitoring purposes and this can be used to identify vexatious requests.

7.13; Exemptions available under Part II of the Freedom of Information Act 2000 The PCT will endeavour to use these exemptions appropriately and sparingly.

• Information accessible to applicant by other means – it may be reasonably accessible even if the applicant has to pay for it.

• Information intended for future publication – covers information held with a view to publication by the public authority or another person at some future date.

• Information supplied by, or relating to, bodies with security matters – this is aimed at the Security Services, Government Communications Headquarters and the National Criminal Intelligence Service.

• National security – information can be exempt if it is required to safeguard national security.

• Defence – information can be exempt if its release would affect the defence of the British Isle, any British colony or the capability and effectiveness of the armed forces.

• International relations – information is exempt if its release would prejudice relations with another State, international organisation, international court or the interests of the UK abroad.

• Relations within the United Kingdom – covers information that might prejudice relations between the administrations within the UK. • The economy – covers information that would prejudice the economic interest of the UK 5

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•

•

• • • • • • • • •

• • • •

8.0

or of any administration in the UK. Investigations and proceedings conducted by public authorities – covers information held for an investigation that the authority has a duty to conduct to decided if a person should be charged with or found guilty of an offence, relates to criminal proceedings that the authority has power to conduct or relates to civil proceedings brought by or on behalf of the authority.

Law enforcement – information is exempt if its release would prejudice law enforcement. This includes the prevention and detection of crime, apprehension and prosecution of offenders, administration of justice, the operation of immigration controls and the security of prisons.

Court records – covers documents in the custody of a court, created by a court or served on or by a public authority for court proceedings.

Audit functions – this applies to authorities that have functions relation to the audit of other authorities’ accounts and the examination of efficiency and effectiveness of the use of their resources. This does not cover internal auditing functions of authorities.

Parliamentary privilege – to avoid infringing the privileges of either House of Parliament.

Formulation of government policy – relates to government departments and the National Assembly for Wales.

Prejudice to effective conduct of public affairs – information is exempt if, in the opinion of a qualified person, it would prejudice how the PCT conducts its public affairs.

Communications with Her Majesty, etc. and honours – covers Her Majesty, other members of the Royal Family.

Health and safety – information is exempt if its disclosure would endanger the physical health, mental health or safety of any individual.

Environmental information – covers information that can be accessed via the Environmental Information Regulations.

Personal information – where the applicant is the subject of the information the request must be dealt with in accordance with the Subject Access rights provided in the Data Protection Act 1998. Where the applicant is not the subject of the information, then it is exempt if disclosure if it would breach the Data Protection Act. Information provided in confidence – if the disclosure of the information would constitute a breach of confidence that could be lead to action against the PCT. Legal professional privilege Commercial interests – information is exempt if it constitutes a trade secret or would prejudice or be likely to prejudice the commercial interests or any person or organisation.

Prohibitions on disclosure – information is exempt if its release is prohibited under any enactment, it is incompatible with Community obligation or would constitute contempt of court.

Training Needs Assessment.

All PCT staff must have 1. an awareness of this procedure 2. who to forward FOI requests to 3. the timescales for responding to an FOI request.

In order to achieve this, 1. a paragraph will be included in team brief regarding the revision to the procedure 2. the procedure will be uploaded to the PCT internet 3. a copy of the procedure is handed out at the PCT’s mandatory Records Management training.

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Appendix A:

Flowchart for requests for information under the Freedom of Information Act 2000 Request for information is made in writing to an employee of Kirklees PCT

Inform Corporate Governance Administrator so request can be logged and a receipt can be sent to the person requesting the information

Corporate Governance Administrator to establish whether information exists

Yes, information does exist No, information does not exist Corporate Governance Administrator identifies individual or department responsible for the information and passes the request to them

Individual responsible for the information establishes whether the information is exempt

Write to applicant explaining that information is not available

Yes, information is exempt

No, information is not exempt

Does information fall under the absolute exemption criteria?

Corporate Governance Administrator responds to applicant explaining refusal to give information within 20 working days

Corporate Governance Administrator responds to applicant explaining why information is exempt within 20 working days

Department or individual collates information and forwards to Corporate Governance Administrator within the timescale requested by the Corporate Governance Administrator

PALS Officer to ensure that information reaches the applicant within 20 working days of the PCT receiving request

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Appendix B: Refusal Notice Template Refusal Notice in Response to a Request for the following information: <Named Individual> made the following request: Kirklees PCT’s response is as follows: The exemptions relied on NB: Check the exemption and its status with the Confidentiality and IM&T Security Officers from the Health Informatics Service (THIS). before completing this section.

Qualified Exemption • Confirm or deny whether the requested information is held (unless to do so would constitute disclosure of exempt information).

• If the information is not going to be released, state which qualified exemption applies.

• Explain why the exemption applies.

• Explain the public interest arguments that have been considered when deciding upon disclosure.

• Outline your authority’s appeals procedure (or clearly state that no procedure exists if this is the case).

• Provide details of the right to appeal to the Information Commissioner Absolute Exemption • Confirm or deny whether the information is held (unless to do so would constitute disclosure of exempt information).

• If the information is not going to be released, state which absolute exemption applies.

• Outline your authority’s appeals procedure (or clearly state that no procedure exists if this is the case).

• Provide details of the right to appeal to the Information Commissioner.

Cost Exceeds the Appropriate Limit • Confirm or deny whether the information is held (unless to do so would constitute disclosure of exempt information) • Where the cost exceeds the appropriate limit, state what this cost is.

• Provide advice and assistance if possible. We would encourage public authorities to advise what steps could be taken by the applicant to make the request fall within the appropriate limit (e.g narrowing the scope of the request), or • Provide what information could be produced within the appropriate limit.

Why the exemption applies How the public interest test has been applied A public authority should make it clear why it considers the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

It will not be sufficient for an authority simply to state that it is not in the public interest to disclose information in any particular instance. Similarly it is not sufficient for an authority merely to list the factors it has considered when applying the public interest test. A refusal notice should outline the reasoning the authority has followed in

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arriving at its decision and why it feels one factor, or set of factors, outweighs another, unless to do so would involve disclosure of exempt information.

Right to Complain.

You have the right to complain about this refusal to disclose the information you requested. You should initially direct your complaint to the PCT as set out below. If you remain dissatisfied on exhaustion of the PCT’s internal review procedure you have the right to complain to the Information Commissioner.

Complaint to the PCT. Your complaint should be sent to The Assistant Director of Corporate Governance St Luke’s House Blackmoorfoot Rd Huddersfield HD4 5RH Tel: 01484 466000 Fax: 01484 466139 The Assistant Director of Corporate Governance will prepare a report that will be considered by the PCT’s Senior Management Team at their weekly meeting. It is therefore expected that you will receive a response to your complaint within ten working days. If this is not possible the Assistant Director will keep you informed of progress.

Complaint to the Information Commissioner.

You also have the right to complain to the Information Commissioner if, following exhaustion of the PCT’s internal review procedure you remain dissatisfied. The address is as follows: Information Commissioner’s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF Tel: 01625 545 745 Fax: 01625 524 510 Email: enquiries@ico.gsi.gov.uk

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