Freedom of Information Act and Environmental Information Regulations
The following abbreviations have been used in this work:
BRO Bankruptcy Restrictions Order
BIS Department for Business, Innovation and Skills
CAD Centralised Activities Directorate
CHM Case Help Manual
DP Act Data Protection Act 1998
EIR 2004 Environmental Information Regulations 2004
EU European Union
FOI Act Freedom of Information Act 2000
FTVA Fast Track Voluntary Arrangement
IAO Information Asset Owner
IES Investigations and Enforcement Services
NHS National Health Service
TM Technical Manual
The Service Insolvency Service
VA Voluntary Arrangement
The FOI Act gives a general right of access, subject to some exemptions, to all types of recorded information held by public authorities. The Act applies to public authorities in England and Wales that exercise public functions, including the police, the armed forces, the NHS, the education service, and local and central government departments, their related offices and agencies. This definition obviously includes The Service.
(Amended December 2010)
The Service aims to provide full and open communication and to disclose information where it is able to do so, subject to relevant legislation and the constraints imposed. To assist with this process, an FOI/DPA Liaison Officer has been appointed within Technical Section and whilst requests for information should be dealt with by the person holding the information, the FOI/DPA Liaison Officer will deal with matters of uncertainty on FOI matters raised by official receivers and other parts of The Service, particularly regarding refusals to disclose information. Current policy is to log and monitor all FOI (and DPA) requests across The Service in line with Information Security Policy and Cabinet Office guidelines. To achieve this the FOI/DPA Compliance Manager (Jim Digby) has been appointed to carry out this work.
All requests under the FOI or DP Acts received by offices and teams should be copied to The Services FOI inbox at FOI@insolvency.gsi.gov.uk . Responses sent out by official receivers or action officers in other teams and directorates should also be copied to the FOI inbox for the purpose of logging and monitoring The Service’s compliance with the requirements of the Act.
All disclosures arising under the FOI Act must be agreed by the Information Asset Owner (IAO) for the directorate that holds the information. Generally IAOs are the Director for each CBS directorate and the Director of CAD for offices and teams under his or her authority (ORBS, PIU, NDU, P&T, RSU). Each directorate has an appointed FOI liaison officer who will be responsible for ensuring releases of information are agreed with the IAO before the response is issued.
The FOI Act does not apply to courts and tribunals because it was felt they should be governed by their existing rules, for example, the civil procedure rules in respect of the High Court and county courts. When the official receiver is acting as statutory office holder, including where he or she is provisional liquidator, liquidator, receiver and manager, trustee, nominee in an FTVA or a supervisor in a VA, he or she is accountable to the court in respect of the actions taken in that regard.
Legal advice received by The Service states that if the requested information was obtained by the official receiver solely by virtue of acting as statutory office holder, the FOI Act will not apply. (Instead, the DP Act provisions must still be considered as far as requests for any personal data held, whether the request is for information personal to the applicant or personal to a third party).
All requests for information in bankruptcy cases are likely to be for personal information and the DP Act provisions must be applied. For more information see CHM Part – Data Protection.
The provisions of the Insolvency Act 1986, Insolvency Rules 1986 and any other relevant legislation will be applied to requests for other information. The official receiver will need to take into account the restrictions in the insolvency legislation on who is entitled to the information, as well as the guidance in the TM Chapter 47 – Disclosure of information (including inspection and production of records), when deciding if the requested information can be given in full or in part. For example, if an applicant who is not a creditor of a company in liquidation requests a copy of the list of creditors, and the statement of affairs has not been lodged, a copy of the list should not be provided, as Rule 12.17 of the Insolvency Rules 1986 will apply.
Where the official receiver is acting as statutory office holder and instructs agents, a request for information held by those agents should be considered for disclosure in the same way as if the official receiver was holding the information, (and the DP Act and TM Chapter 47 considerations may also apply).
It must be remembered that although the FOI Act may not be relevant to official receivers in most cases, it does apply to all information held by the rest of The Service, including information that has been sent there by the official receiver. This will include information given as part of a request for advice and information in any report submitted to IES, regardless of whether the FOI Act was applicable whilst the information was held only by the official receiver.
If part or all of the information requested is held by another part of The Service, the request should be sent to the appropriate section head as soon as possible, as it will be for the section head to consider disclosure even if the official receiver holds the same information. It must be remembered that, unlike the DP Act, there is no need to make separate requests for information to both the official receiver and section head, as the FOI Act potentially covers all of the information held by The Service, regardless of where or by whom it is held.
There are some occasions where the official receiver is not acting as statutory office holder and where the FOI Act must then be considered. If the official receiver is holding information in the capacity of a civil servant, as a manager of staff for example, the FOI Act (as well as the DP Act) will be relevant. Also more likely are those occasions where the official receiver is acting on the specific instructions or carrying out delegated functions of the Secretary of State, when the FOI Act will also apply. This will include cases where an authority to proceed has been granted in a compulsory liquidation or in a BRO case, or where a prosecution report has been accepted in an insolvency. Any FOI Act requests in such cases should be directed to the Enforcement Technical Team of IES.
Where work is being carried out with a view to establishing unfit conduct in a voluntary liquidation, the exemption for the official receiver acting as statutory office holder will not apply. Any FOI Act requests in such cases should be referred to IES. The decision as to whether or not disclosure is appropriate is case specific and includes public interest considerations. In those cases where advice is sought, details of the case and a note of the stage of investigation must be provided. Requests for disclosure of D (director) reports in such voluntary cases should be referred to the Case Targeting Team.
If the official receiver is uncertain in what capacity he or she is holding the information requested, Technical Section should be consulted. Whenever possible the information should be given but if the official receiver considers that the requested information cannot be provided, the reason for the decision must be given. The circumstances where a request may be refused are summarised in paragraph 19.
The FOI Act amends the DP Act but does not repeal it. Basically, the DP Act regulates the handling of personal data and grants an individual the right, subject to various qualifications and exemptions, to be told by any data controller e.g. the official receiver, whether any personal data in which that individual is the data subject is being processed and, if so, to be told what information is contained in that data. See TM Chapter 81A and CHM Part – Data Protection.
When a request for information is received, and the official receiver is not holding the information solely in his or her capacity as statutory office holder, he or she must consider whether the FOI Act or DP Act provisions should be applied, or whether both should be applied. There may be some information which is not personal data but does relate to an individual making an information request, in which case both Acts will need to be considered.
The specific exemption in section 40(1) of the FOI Act means that where information requested constitutes personal data of which the applicant is the data subject, the request will be dealt with under the DP Act. Similarly requests by a company director about himself or herself will be a ‘subject access request’ under the DP Act.
Where the FOI Act applies and an individual makes a request for information regarding a third party, the exemption in section 40(2) of the FOI Act means that if disclosure would contravene the DP Act, or if the individual to whom it relates would have no right of access under the DP Act, then the applicant also has no right to the information.
For more information see CHM Part – Data Protection.
Under section 1of the FOI Act, any person making a request for information to a public authority has the right:
Unlike the DP Act, these rights are not limited to information regarding the individual making the request but could apply to any information held unless it is exempt information. See paragraph 20 to paragraph 23 for details of the exemptions. There are no restrictions on the person that may submit a request and as the definition of ‘person’ also includes corporate bodies, a company may rely on the FOI Act as well as an individual.
All information held by The Service is potentially disclosable and there is no need under the FOI Act to make separate requests for information to official receivers and section heads. A request will extend across the whole of The Service and BIS, and will cover any information held regardless of where it is held or by whom.
It is not necessary for a request for information to mention the FOI Act for it to apply, so staff must be alert to the possibility that any request for information could fall to be dealt with under the FOI Act. There are three requirements that must be fulfilled before a request is dealt with under the FOI Act, and they are as follows:
a. the request must be in writing.
This includes e-mail and fax as long as it is legible and capable of being used for subsequent reference.
b. the request must state the name of the applicant and provide an address for correspondence.
There is no need to confirm the identity of the applicant who may use any name. Where all or some of the information to be provided is in paper format, and the request has been made in an e-mail, a postal address should be requested.
c. the request must describe the information required.
This does not mean that the document on which the information is recorded must be specified. If the applicant does not or is unable to describe the information in a way that would allow it to be identified or located, he or she should be given assistance by the official receiver as soon as possible by telephone, fax or e-mail, to enable the person to describe the information clearly. Where such assistance has been given but the applicant then fails to adequately describe the information requested, the official receiver does not have to seek further clarification.
The applicant may express a preference under the FOI Act as to the way in which he or she receives the information requested. They can ask for a copy of the information in permanent form, for a summary of the information, or to inspect the document containing the information. The applicant is not restricted to one option, so for example they may inspect and request a copy.
The official receiver should provide the information in accordance with the applicant’s preference so far as is reasonably practical. Where the cost of providing the information in the manner requested would be higher than producing it in another format, the official receiver should explain this and provide the opportunity for him or her to choose a cheaper option.
The applicant does not have a general right of access to the official receiver’s records, so there is no general entitlement to inspect the whole of the case file for example. The applicant may only inspect those documents which contain the information sought.
The FOI Act requires that a request be dealt with promptly, and in any event, no later than the 20th working day after the request is received. The Service has an internal target of 15 days for dealing with correspondence and the official receiver should provide the information requested under the FOI Act within that target, other than in exceptional cases. This does not provide much time so it is important that staff recognise and deal with requests promptly.
The time period will start to run the day after the request is received, assuming that the 3 requirements in paragraph 13 are met. A request is received when it is delivered to one of The Insolvency Service offices, or when it is delivered to the inbox of a member of staff. It is not the date on which it is passed to the appropriate person, although in the case of e-mails where there is an automated ’out of office’ message, the request will not be treated as received until it is sent to the alternative contact.
There are two situations where the response time will be suspended:
If more research is needed before a reply can be sent, which will mean the time target is likely to be exceeded, an interim reply should be issued to the applicant within 5 working days indicating when a substantive reply can be expected.
Where information is held by the official receiver and one or more parts of The Service, agreement should be reached as to who will correspond with the applicant.
Where it is a further enquiry case and IES are involved, they should be consulted before the information from other parts of The Service is provided. Such requests should be forwarded to IES who will return it if the information is clearly unrelated to the investigation.
In accord with the spirit of openness fostered by the FOI Act, it has been decided that, for the majority of requests received by The Service, information will be provided free of charge. However, expensive FOI Act requests (those costing more than £600) should be refused unless the request is exceptional, for example from the press, an academic or a researcher, and Technical Section approve the processing of that request.
For information on how to calculate costs and fees, see TM Chapter 81 Part 4 – Fees and Appropriate Limits Regulations 2004. It should be noted that there is a difference between the calculation of costs to decide if a fee can be charged and the calculation of the actual fee charged.
If Technical Section agree that a fee is appropriate, the applicant should be informed that a remittance is required by sending form (#12) – ‘Exceeding fees limit’. See FOI and DP Act Notices and Forms. The clock will stop running on the response time for the request once that letter is sent. When the fee is received, it must not be credited to the estate account but should be forwarded to Finance Section. In the case of a cheque, Finance Section will notify the official receiver once the cheque has cleared, the clock will re-start and the information should be provided within the timescale.
Although the FOI Act is based on the idea that disclosure should be the norm and provides a general right of access to information held by public authorities, there is not an unlimited duty to provide the information. In some cases, the information requested may be exempt from disclosure. There are two types of exemption under the FOI Act, absolute and non-absolute. In the case of an absolute exemption, there is no need to disclose the information at all nor even, in most cases, to disclose whether the information is held or not. For non-absolute exemptions, a ‘public interest test’ must be considered both in deciding whether to disclose that the information is actually held and then in deciding whether to disclose or withhold it.
It is for the official receiver or section head to decide whether an exemption applies. The relevant papers should initially be passed to the examiner for consideration and the case officer will then act on the instructions given.
Part II of the FOI Act outlines a number of absolute exemptions, and those that are likely to be of relevance to the official receiver are as follows:
a. Section 21 exemption
‘Information that is available from another source, even if payment is required to gain access’
An applicant can be directed to information already in the public domain, including information already published by other public authorities. The Insolvency Service’s publication scheme is available on The Service’s website. www.insolvency.gov.uk. If the applicant cannot obtain access to the website a copy of the information should be provided. Currently The Service does not charge for providing such copies although this is under review. It should be remembered that there is an obligation to assist the applicant and if it is more straightforward to provide the information, it should be given rather than refer the applicant elsewhere. For example, where the information requested is contained in a Service leaflet, this should be sent to the applicant, although he may be directed to the website if he has expressed a preference to receive the information electronically.
b. Section 32 exemption
‘Court information is exempted if it is held solely by virtue of being contained in any file or otherwise placed in the custody of the court This applies to both civil and criminal court records’
Where this exemption applies there is no duty to confirm or deny the existence of the information. If the information in question has been obtained from another source or by other means, this exemption will not apply. The disclosure of information contained in court records is to be regulated by the procedures applying to the court or tribunal in question. For example, in the High Court and county courts, the civil procedure rules govern access by non-parties to the proceedings, for documents coming into existence in the course of proceedings. Generally speaking, the effect of this section is that parties to court proceedings will retain their right of access to information such as witness statements under the normal court disclosure rules whilst third parties, such as the press, will only have access to information made public in open court or available under the court rules, but not to information which is subject to proceedings ’in camera’ (court cases to which the public or press are not invited).
c. Section 40 exemption
‘Any request for personal information exempts such information as a class’
The right to know whether personal information is held and, if so, to have access to it will instead be dealt with under the provisions of the DP Act. Third party information will fall under section 40 of the FOI Act, although not in the same way. Where the information is personal information relating to a third party, it will be exempt if its disclosure would contravene either:
For more information see CHM Part – Data Protection.
d. Section 41 exemption
‘Information provided in confidence will be exempt if its disclosure would constitute a breach of confidence actionable by that or any other person’
A duty of confidence arises when one person is provided with information by another in the expectation that the information will only be used or disclosed in accordance with the wishes of the confider and not disclosed any further. If there is a breach of confidence, the confider will have the right to take action through the courts. It should be made clear to correspondents that letters headed ‘in confidence’ or ‘confidential’ will not automatically mean that all of the contents of the letter will be treated as confidential. In any event, where a request for information is received and the confider consents to the information being disclosed, disclosure will not lead to a breach of confidence.
e. Section 44 exemption
‘Information, disclosure of which is prohibited by any enactment, is incompatible with any EU obligation, or would constitute or be punishable as a contempt of court, is exempt’
If no absolute exemptions are applicable, the official receiver must consider whether any of the non-absolute exemptions are relevant to a request for information. If a non-absolute exemption does appear to apply, the official receiver has then to consider:
The FOI Act sets out a number of non-absolute exemptions and those that are likely to be applied by the official receiver are as follows:
a. Section 22 exemption
‘Information which is intended for future publication, where it is reasonable not to disclose the information until the intended date of publication’
b. Section 30(2) exemption
‘Where information held is for the purpose of any investigations that the public authority has a duty to conduct with a view to ascertaining whether an individual should be charged with any offences, including information relating to criminal investigations and civil proceedings’
This exemption relates to any information that has been held at any time for the purposes of investigation, even where it is later decided from the evidence available that there are insufficient grounds to institute proceedings. It also exempts any information received in confidence.
c. Section 31 exemption
This section specifically exempts a number of categories of information (which are not exempt by virtue of section 30) where disclosure would or would be likely to prejudice:
Further, the section exempts any information which would prejudice the exercise of a public authority’s functions for any of the purposes listed in Section 31(2) of the FOI Act. These purposes include:
d. Section 42 exemption
‘Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings’
e. Section 43 exemption
‘Disclosure of information which would be likely to prejudice the commercial interests of any person’
f. Environmental Information Regulations 2004 exemption
Any request for environmental information will be dealt with under the EIR 2004.
(Amended September 2010)
A request for information may only be refused if:
(Amended September 2010)
If information is refused because it falls into one of the absolute or non-absolute exemptions, the applicant must be informed by sending the appropriate refusal notice, depending on the circumstances involved. See FOI Act notices (#11 to #26), FOI Act and DP Act Notices and Forms, to view the letters, notices and forms that are available for use. See also paragraph 15 regarding the time limits involved.
The notice must state that the information is exempt, specifying the exemption relied upon. Why the information is exempt (unless that is apparent) must be stated and, if appropriate, for non-absolute exemptions only, why the public interest is served by refusing to disclose the information must also be stated.
Details of the Insolvency Service complaints procedure and the right of appeal to the Information Commissioner, with his or her office address must be included in all letters. This enables an applicant to seek a decision as to whether their request for information has been dealt with in accordance with the requirements of part 1 of the FOI Act.
All replies sent in response to requests for information must be copied to The Service FOI inbox (FOI@insolvency.gsi.gov.uk) to meet The Services policy on logging and monitoring requests.
Section 14(1) of the FOI Act states that there is no obligation to comply with a request for information if it is ’vexatious’. The following points should be taken into account in deciding whether a request is vexatious:
An offensive or abusive request may be vexatious in some circumstances. Where it is clear that there is no additional information available to the applicant, and the applicant knows that no further information is available, on receipt of the third such request, then there is an arguable case that the request is vexatious and the official receiver can refuse to provide the information quoting section 14(1) as the reason for the refusal. See refusal notice (#23) – ‘Vexatious and repeated requests’ FOI and DPA Act Notices and Forms.
The FOI Act section 14(2) states that there is no obligation to comply with a subsequent identical or substantially similar request from the same person unless a reasonable interval has elapsed between those requests. This repeat request refusal should be used, in preference to refusal as a vexatious request, to deal with individuals that are constantly seeking information, as it is much less likely to antagonise the applicant than if he or she is labelled as vexatious. If a request is received for the same or substantially the same information within 6 months of its disclosure, it is considered reasonable that the official receiver does not have an obligation to comply with the request. If it is appropriate to refuse the request under section 14 the applicant should be informed that this is the reason for the refusal. See refusal notice (#23) – ‘Vexatious and repeated requests’ FOI and DPA Act Notices and Forms.
In extreme cases, with an applicant whose behaviour has meant, for example,
The Information Commissioner is responsible for monitoring the compliance of public authorities with the FOI Act, DP Act and the Codes of Practice. The Commissioners role extends to public rights under the EIR 2004 and the Privacy and Electronic Communications Regulations. The Information Commissioner has several enforcement options under the FOI Act.
The EIR 2004 provide the right of access to environmental information held by The Service. A request under the Regulations may be verbal or in writing. Any request for environmental information is exempted from the provisions of the FOI Act and must be dealt with under EIR 2004 instead.
The Regulations allow any person to obtain details of recorded information including: policies, plans and agreements; reports and economic analysis/cost benefits; built structures; emissions and discharges, energy, radioactive waste and noise. It will also cover information on the state of human health and safety and the conditions of human life where they are affected by environmental factors such as acid rain, pollution etc.
For more information see TM Chapter 81 Part 6.
Under section 50 of the FOI Act any person who is dissatisfied may apply to the Information Commissioner regarding The Service’s compliance with the requirements of the FOI Act, the most likely reason being that the complainant does not agree with the exemption relied upon for not providing the information. The Information Commissioner is obliged to consider an application unless he considers that:
Insolvency Service staff must not ignore any notice issued by the Information Commissioner as the courts may treat any failure to comply with an Information or Decision Notice as a contempt of court. Also, the FOI/DPA Liaison Officer in Technical Section must be notified without delay, and supplied with copies of any notice or other correspondence that is received from the Information Commissioner.
a Where a request has been made for information under the FOI Act it is a
criminal offence to alter, deface, block, destroy or conceal any record, or
part of it, to prevent disclosure of all or part of the information in it
(provided that the applicant would have been entitled to the information).
Section 77 of the FOI Act states the individual employee who carried out
such action would be liable to prosecution.
Where can I find out more?
Freedom of Information Act 2000
Data Protection Act 1998
Freedom of Information (Fees and Appropriate Limit) Regulations 2004
Environmental Information Regulations 2004
Case Help Manual
T8-08 – Responding to information requests and complaints within the requirements of the Freedom of Information Act 2000
T46-08 – Responding to information requests made under the Freedom of Information and Data Protection Acts and obtaining personal information
The Information Commissioner’s website
Forms to be used
1 Receive written request for information, by letter, e-mail or fax.
2 Ensure that the written request states the name of the applicant and provides a correspondence address. If the information requested is to be given in paper format, an e-mail address will not be sufficient for copies to be provided and a terrestrial address should be asked for.
3 Ascertain whether the applicant has specified the information sought. If not send notice (#11) – ‘Clarification of request required’ or contact the applicant as soon as possible by telephone, fax or e-mail to give assistance and to seek clarification. If the applicant then fails to provide the additional necessary descriptive information, no further action need be taken.
4 Once the information required is provided by the applicant, the 15 working days response time will begin to run.
5 Consider if the official receiver is holding all the information requested in his or her capacity as statutory office holder, for example if acting as a liquidator or trustee realising assets. In the majority of insolvencies the FOI Act procedure will not apply, but checks should be made with paragraph 4 before a final decision is made.
6 If the FOI Act does not apply, reference should be made to the guidance in the TM and CHM as explained in paragraphs 4 to 8 to decide whether or not the information can be given. It should be remembered that the DP Act provisions will apply if the information requested is personal information.
7 A request for personal information regarding the applicant will be exempt from the FOI Act, as section 40 means it will become a ‘subject access request’ under the DP Act. Send the appropriate letter of response. For DP Act requests, see CHM Part – Data Protection.
8 There are many FOI Act exemptions that relate to the disclosure of information. The exemptions are either ’absolute exemptions’ or ‘non-absolute exemptions’. For full details of these exemptions see paragraphs 20, 21 and 22.
9 Besides the various exemptions, there are other occasions when the disclosure of information can be refused. See paragraph 14 for a full list of when disclosure can be refused. Should refusal be considered because a request for information is deemed to be vexatious, see paragraph 26 for further guidance on this situation and discuss with the examiner. If appropriate send notice – ‘Vexatious or repeated requests’.
10 If the request is a repeat request where the applicant has received the same or substantially similar information in the 6 months preceding this request, it may be refused. See paragraph 27. The relevant papers should be passed to the examiner for a decision or for him or her to seek further assistance. If appropriate send notice.
11 In extreme cases, with an applicant whose behaviour has meant, for example, that the court will no longer have dealings with him or her or the Insolvency Service and/or a Minister refuses to enter into correspondence anymore, and all of the information that can be has been provided, the applicant should be referred directly to the Information Commissioner.
12 As it is for the official receiver to consider whether any of the FOI Act exemptions apply, pass the request firstly to the examiner for instructions. If the instructions include that the applicants request is exempt, forward the appropriate refusal notice from those available. See notices (#13) to (#25), FOI Act and DP Act Notices and Forms, ensuring that the exemption being relied upon is specified.
13 Consider if relevant information is likely to be held by any other part of The Service. If appropriate liaise with the relevant Section Head.
14 Where it is a further enquiry case where IES are involved, they should be consulted before the information from other parts of The Service is provided. Forward the request to IES who will return it if it is clearly unrelated to the investigation.
15 Calculate the fee for providing the information, if a fee is to be charged. See paragraph 18 for more information regarding fees. Details on calculating the costs to decide if a fee should be charged are given in TM Chapter 81 Part 4 – Fees and Appropriate Limits Regulations 2004.
16 Once the charging of a fee has been approved, send notice (#12) – ‘Exceeding fees limit’, requesting a remittance for the sum due. Until the remittance is received, the clock will stop on the response time for the request.
17 Once the remittance is received, it must be forwarded to Finance Section immediately, it must not be credited to the estate account. In the case of a cheque, await confirmation from Finance Section that the cheque has cleared before complying with the request for information.
18 Forward the information requested to the applicant once any fee (if charged) has been banked. Where documents have been edited, for example to exclude personal information, ensure that a copy is taken for the office file in the event of any subsequent query. Where the applicant attends at the office to view the information (but does not wish to have a copy of it) a clear record should be kept on the appropriate file of the information that has been shown to the applicant, the date and who attended the meeting.
19 Any documentation subsequently received from the Information Commissioners relating to any case must be copied to the FOI/DPA Liaison Officer in Technical Section as soon as it is received.