Since the Freedom of Information Act 2000 came into force at the beginning of this year there have been a flood of requests for information, some of which have been targeted at arts organisations. Sean Egan explores the emerging issues.
Many organisations take the view that the Freedom of Information Act 2000 is not relevant to them as they are not a ?public body?, or that they support the aims of the Act and are relaxed about disclosure. Before adopting one or both of these approaches you should be aware that this legislation is potentially far reaching and the information that may be disclosed is extensive and could be damaging. The Act applies to public bodies but its reach is far wider than might first appear. One reason for this is that the definition of a ?public body? covers not only government departments such as the Department for Culture, Media and Sport, but also regional government such as the Welsh Assembly, the Arts Councils and local authorities. The Act covers public bodies in England, Wales and Northern Ireland and there is separate very similar legislation in Scotland covering its public bodies.
Who?s asking?
Any individual can request information from a public body, about minutes of meetings, details of funding, tender documents, contracts, and consultation documents and responses etc. Those making requests do not have to state a reason or intended use of the information, although they do have to identify the information they are requesting. We have advised on requests for information made to Arts Council England and other bodies. Many of these have been from the national press, but there have also been instances of individuals seeking ammunition for personal vendettas, disgruntled ex-employees and competitors. In these cases our clients (i.e. the organisations about which a public body held information) were concerned to know what information the public body proposed to release, and have the opportunity to make representations that there were grounds to resist disclosure.
Right to know
The Act aims to introduce a ?right to know? culture, intended to encourage accountability and transparency in the public sector (though requests for personal data are dealt with under the Data Protection Act 1998, and disclosure can only be made under the more restricted grounds of that Act.) In many cases, although held by a public body, information may relate to an independent arts organisation, or may have been supplied to the public body by such an organisation or be information held ?on behalf of the public body?. Funding agreements usually require extensive rights of access to information such as cash flow schedules, financial and strategic information. It may be that all this information, even if not yet provided to the public body, will be seen as held on behalf of it and may be subject to an information request.
Confidentiality
This right to know requires public bodies to make information available within 20 days of receiving a request. However, there are a number of exemptions. Public bodies generally are not permitted to disclose confidential information and may be entitled to refuse disclosure of commercially sensitive information (i.e. trade secrets and information likely to prejudice an organisation?s commercial interests).
It is up to the public body to decide whether it will make use of an exemption allowing it to refuse disclosure, but in making this decision it has a duty to consider what is in the public interest. Commercially sensitive information may well be disclosed because there is a strong public interest in promoting accountability for public spending. On the other hand, where information is confidential, public interest is much less likely to tip the balance in favour of disclosure.
In order to prevent misuse of the ?confidential? label some public bodies are starting to introduce contracts which limit the extent to which they are required to treat information as confidential. We are also seeing clauses requiring contractors to assist public bodies in the provision of information. These clauses can be modified ? for instance by making the public body pay the costs associated with responding to a request ? and it may be wise to seek advice before accepting them.
Walking a tightrope
In all this the public body is caught between complying with numerous requests within a fixed time period and behaving responsibly towards organisations about which it holds information, even though there is no statutory obligation to consult before disclosing information. In our experience Arts Council England has been exemplary in its practice ? giving organisations about which it holds information the opportunity to consider requests and make representations that disclosure should be refused. But not all public bodies will be prepared to engage so fully with the concerns of organisations.
Take action
If you are concerned about information about your organisation being made public, there are a number of immediate steps you can take now to deal with the impact of the Act:
? Use the website at www.foi.gov.uk to check whether any of the bodies with which you deal are covered by the Act.
? If they are listed on this website, contact those with whom you work to find out who their Freedom of Information Officer is, and what procedures they have in place relating to disclosure of information.
? Tell those bodies if you regard any information they already hold in relation to your activities as confidential, and make it clear that you would like to be consulted before such information is disclosed.
? In negotiating new contracts or funding agreements with or submitting tenders/bids to public bodies, make it clear which information you regard as confidential and consider the inclusion of contractual provisions which require them to consult you before disclosing information.
? Review the extent of information which may be considered to be held ?on behalf of? the public body and whether this should be reduced.
? Reply promptly if a public body contacts you about a possible disclosure.
Sean Egan is Head of the Arts & Media Department at Bates Wells & Braithwaite Solicitors e: s.egan@bateswells.co.ukSean would like to acknowledge the invaluable input of Lawrence Simanowitz, solicitor in the Charity and Social Enterprise Department at BWB.