How schools and colleges should deal with freedom of information requests

Freedom of Information and the Freedom of Information Act 2000 (FOIA) gives the public a mechanism to access information about the activities of public authorities. The idea behind the legislation was to improve public confidence and trust by making public authorities accountable for their actions and decision-making.  

How does FOIA apply to your school or college?

Maintained schools, academy schools and further and higher education institutions are all public authorities under FOIA. Generic descriptions are deliberately used within FOIA to ensure it has a wide application. This means that, if your school or college fits within the description, then it is likely that to be a public authority for the purposes of FOIA. 

The sector may receive FOI requests from parents wanting to access information they feel should be disclosed. For example, some parents have made requests to access the materials being taught in respect of personal, social and health education, following concerns that these have been provided by third party interest groups. During covid, we also saw parents and some students make requests after their exam results were assessed by teachers. 

How to recognise a freedom of information request

A freedom of information request (FOI Request) is any written request from a member of the public which asks to have access to information that you hold and includes the requester’s real name and an address for correspondence. Anyone has the right to make a FOI request. The request does not have to mention FOIA or direct their request to a designated member of staff for it to be valid. 

It is important to remember that if a person is asking for their own personal data it should be dealt with as a data subject access request rather than a FOI request. Similarly, if a person is asking for environmental information, the request would be covered by the Environmental Information Regulations 2004 rather than FOIA. 

How to respond to a FOI request?

If you receive a FOI Request you must tell the requester whether you hold any information that falls within the scope of their request and provide that information to them unless there is a good reason not to. 

Schools and Colleges have 20 school or college days or 60 working days (whichever is shorter) to respond to a FOI Request. There is no ability to extend the timescale for responding. The timescale for responding starts when your organisation receives the request, not when it reaches the relevant member of staff who will deal with it. 

The ICO have published a request handling flowchart which can be accessed here which sets out the steps to consider when a FOI request is received. 

What information is covered?

FOIA only covers recorded information you hold. You don’t have to make up an answer or find out information from elsewhere if you don’t already have the relevant information in a recorded form. You can't refuse to provide the information on the basis that it is out of date, incomplete or inaccurate. 

You should normally disclose the information in the format you held it at the time the request was made. It is a criminal offence to make changes or deletions to the information as a result of the request being received. 

Can you refuse to answer?

You can refuse an entire request if it would cost too much or take too much staff time to deal with the request, the request is vexatious or the request repeats a previous request from the same person. 

A request can be refused if you estimate that the cost of compliance would exceed the cost limit of £450. Staff time should be rated at £25 per person per hour regardless of who does the work.

If you are refusing all or any part of a request, you must send the requester a written refusal notice. You need to send a refusal notice if you are refusing to say whether you hold information at all, or where you confirm that you hold information is held, but refuse to release it.

Are there any exemptions?

There are a number of exemptions that allow you to withhold information from a requester. These are limited and apply to very specific circumstances. 

The following exemptions may be relevant to information you hold:

• section 21 - information already reasonably accessible; 
• section 22 - information intended for future publication;
• section 40(2) - personal information of others;
• section 42 - legal professional privilege; or
• section 43 - prejudice to commercial interests.

Why is it important to get it right?

If an individual is not happy with your response to their FOI request or if you fail to respond, they can complain to the ICO. The ICO may resolve any complaint informally, but they do have the power to issue a legally binding decision notice, an enforcement notice, an information notice or practice recommendation. Notwithstanding this, the ICO is unlikely to issue a fine for any non-compliance. This is due to their current strategic approach to the fining of public authorities in the current economic climate.

However, any action that the ICO takes is likely to be published on its website which can be picked up by news outlets and may negatively impact your reputation. 

Top tips when responding to requests

• Communicate with requests clearly and transparently.
• Double check that you have included the correct documents and the information being released does not contain unnoticed personal data or other sensitive details which you did not intend to disclose. This has been an issue for some public authorities and has resulted in a personal data breach. 
• If you are redacting documents before responding, ensure the redaction is not reversible. 
• Seek specialist legal advice as soon as possible. 

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