defg
Freedom of Information Policy
Code of Practice for
Responding to
Requests for Information=
DOCUMENT CONTROL
Reference Number Version
Status
Sponsor(s)/Author(s)
41
2.0
Ratified
Peter Wilson
Amendments
version history on page 2
Document objectives: Code of Practice to enable a managed response to FoI requests
throughout the Trust, ensuring the Trust carries out its responsibilities within the FoI legislation
Intended Recipients: All staff.
Group/Persons Consulted: Information Governance Committee, Freedom of Information
Project Group, Informatics Directorate, Caldicott Guardian and Department of Constitutional Affairs.
Monitoring Arrangements and Indicators: Issued electronically by the Controlled
Documents Unit. Available on Trust Intranet.
Training/Resource Implications: To be included as part of staff training, awareness and
induction at all levels.
Ratifying Body and Date Ratified
TEG: 30/03/06, TEG: 25/10/06
Date of Issue
5th April 2006
Review Date
March 2010
Contact for Review
Peter Wilson
Chief Executive signature
Andrew Cash
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Code of Practice for Responding to Requests for Information
1
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
3
Data Protection Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
4
Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
4.1) Director of Service Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
4.2)
Information Governance Department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
4.3) Directorates and Departments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
4.4)
Directorate and Departmental Record Managers . . . . . . . . . . . . . . . . . . . . . . . .5
4.5) Trust Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
5
Procedure for Responding to Requests for Information (RFI's) under the Act . . . . . . . . . . . . .6
5.1)
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
5.2) Initial Requests - ~assisting the Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
5.3)
Action by Information Governance Department . . . . . . . . . . . . . . . . . . . . . . . .6
5.4)
Action by Directorates and Departments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
5.5)
Response by Information Governance Department . . . . . . . . . . . . . . . . . . . . . .7
5.6)
Timescale for Responding to Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
5.7)
Fee Charging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
5.8)
Notification of Complaints Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
5.9)
Refusal of Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
5.10) Contracts and 3rd Party Confidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
5.11) Requests as organised campaigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
6
Complaints Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
7
Review of the Code of Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
8
Trust Contacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Appendix A - Assisting Applicants and Dealing with Requests . . . . . . . . . . . . . . . . . . . . . . . . .10
Appendix B - Consultation with Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Appendix C - Fee Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Appendix D - Refusal of Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Appendix E - Complaints - Description of Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Code of Practice - Responding to Requests
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1.0 Definitions
1.1 Throughout this document the following terms are used:
a. "The Act" means the Freedom of Information Act 2000
b. “Commissioner” means the Information Commissioner; the regulatory body for the Act
c. "DPA" means the Data Protection Act 1998, relating to the processing of personal data.
d. "RFI" means a written request for information under the provisions of the Act.
e. “the Trust” means the Sheffield Teaching Hospitals NHS Foundation Trust
f. “DCA” means the Department for Constitutional Affairs; responsible for the Act
2.0 Introduction
2.1 This Code of Practice provides guidance on the handling of requests for information
submitted under the Freedom of Information Act 2000 ('the Act'). It supplements the
Trust's Freedom of Information Policy and a parallel Code of Practice which provides
guidance on the implementation of records management in the Trust.
2.2 The Act requires that institutions implement and maintain an effective system for
responding to requests for information. The Trust is such a public authority under the Act.
The Trust's Policy on Freedom of Information is that it will comply fully with the Act and it
will place in the public domain as much information about its activities as is practicable,
and subject to the exemptions permitted under the Act will make all other information
available on request. In particular, iit will conform to the Secretary of State for
Constitutional Affairs’ Code of Practice on the discharge of public authorities’ functions
made under Section 45 of the Act.
2.3. That Code of Practice requires the Trust to:
a. Provide advice and assistance to persons making requests for information.
b. Deal with all requests within 20 working days of receipt of request, after receipt
of any fees in accordance with the Lord Chancellor's Fee Regulations, and justify
any refusal of a request.
c. Assist a person making a request, when the information they are seeking is held
by another public authority.
d. Consult with third parties before releasing any data that may affect them
e. consult with third parties where it might enable the Trust in determining if and how the
information should be released.
f. Have a complaints procedure to deal with any complaints made about its
Publication Scheme, or the handling or result of an individual application.
2.4 The Trust has a publication scheme www.sheffield.nhs.uk/sth/index.htm which details the
classes of information that it has chosen to make publicly available, together with details
of how the information can be obtained and any associated cost.
2.5 The Trust regularly receives requests for information as part of the normal course of
business. Members of staff will be expected to continue dealing with these requests as
normal.
2.6 This Code of Practice relates solely to requests for information where a member of Trust is
unable or unwilling to respond to the request or the request is explicitly made under the
Act and the information requested is not covered in the Trust's Publication Scheme.
All requests of this nature must be passed to the Information Governance Department as a
matter of urgency. The Information Governance Department will then consider the request
and work with the appropriate directorates and departments to locate the information.
The Information Governance Department will also consider any exemptions that might
apply to releasing the information and determine any associated fees.
The Lord Chancellor's Code of Practice on Responding to Requests can be found at:
http://www.dca.gov.uk/foi/codepafunc.htm
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3.0 Data Protection Act 1998
3.1 The provisions of the DPA always take precedence over those of the Freedom of
Information Act 2000. Personal information must always be obtained, processed, stored
and disclosed in accordance with the DPA, even where a request for information has been
made under the provisions of the Freedom of Information Act.
4.0 Responsibilities
4.1 Director of Service Development. The Director of Service Development has executive
responsiblity for the overall management of the system and procedures.
4.2 Information Governance Department. The Information Governance Department is
responsible for:
a. Working with directorates and departments to ensure they are aware of their
responsibilities under the Act.
b. Ensuring all requests under the Act are handled in accordance with the Trust's
Freedom of Information Policy and Codes of Practice.
c. Assisting and advising individuals and organisations making requests under the Act.
d. Ensuring that, in considering requests for information and accepting or refusing them,
the public interest is properly assessed and exemptions are properly applied.
e. Ensuring information is released within the timescales specified within this Code of
Practice (see paragraph 5.6)
f. Maintaining the Publication Scheme.
g. Keeping the Trust's Freedom of Information Policy and Codes of Practice under review.
h. Retrieval of information in long-term storage.
i. Liaising with directorates and departments to retrieve information held by them locally.
j. Maintaining the Freedom of Information databases.
4.3
Directorates and Departments. Directorates and Departments are responsible for:
a. Ensuring that they comply with these procedures and that local arrangements are in
place to this end.
b. Appointing Directorate and Departmental Records Managers.
4.4
Directorate and Departmental Records Managers. Directorate and Departmental
Records Managers are responsible for:
a. Ensuring that all requests for information are passed on promptly to the Information
Governance Department and systems are in place for checking and, if necessary,
redirecting the post and electronic mail of staff absent from Trust.
b. Assisting the Information Governance Department in locating and retrieving
information.
c. Assisting the Information Governance Department in drafting the Trust's response to a
request and preparing the information in a suitable form, electronic or physical, for
disclosure to the applicant.
d. Informing the Information Governance Department of changes to any information
covered by the Publication Scheme, including changes to URL addresses.
4.5
Trust Staff. Individual Trust Staff are responsible for:
a. Knowing their responsibilities under the Act
b. Ensuring that, when they are absent from Trust for any reason, arrangements are in
place for their post and electronic mail to be checked or redirected to someone who can
deal with it promptly.
Code of Practice - Responding to Requests
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c. Responding to requests for information and, if they are unwilling or unable to do so in
their normal course of work, referring the request to the Directorate and Departmental
Records Manager.
d. Seeking advice when they are uncertain on how to respond to a request.
5.0 Procedure for Responding to Requests for Information (RFI's) under the Act
5.1
General. All RFI’s under the Act must be directed to the Information Governance
Department in the first instance, and they will then determine how each request is
handled. This is in line with current procedures for managing full subject access requests
under the DPA, where Directorates and Departments assist in retrieving information and
supplying it to the Information Governance Department. The Information Governance
Department will then make the Trust’s formal response to such requests. [A flowchart,
outlining the process for dealing with requests, is in shown in Appendix A.]
5.2
Initial Request - Assisting the Applicant.
a. There is an obligation on the Trust to provide advice and assistance to those making
requests under the Act. The duty on the Trust is to provide advice and assistance "so far
as it would be reasonable to expect [it] to do so".
b. Not all potential applicants will be aware of the Act, or Regulations made under it. Trust
staff receiving requests should draw these to the attention of potential applicants who
appear to be unaware of them or refer to the Information Governance Department.
c. A request for information under the Act must be made in writing (which can include
e-mail). Where a person is unable to submit a written request, they should be referred
to Information Governance Department.
d. A request for environmental information may be made verbally as well as in writing or
by e-mail. In such cases staff should refer the requestor to their manager.
e. Further details on assisting applicants and dealing with requests can be found in
Appendix A.
5.3.
Action by Information Governance Department.
a. The Information Governance Department is responsible for assisting applicants
requesting information under the Act and ensuring the requests are processed both in
accordance with the Act and the Trust’s Policy and Codes of Practice. Further details can
be found in Appendix A.
b. Procedure for Identifying where information is held
I.
Documents stored electronically will be accessed via the information owner.
II.
The Information Governance Department will then be responsible for using the
information and fulfilling the request.
c. Identify with the information owner any information located in long-term storage.
d. When the Trust does not hold the information. There may be circumstances when the
Trust does not hold some or all of the information requested by the applicant. In this
case the Trust will provide what it does hold but will also:
I.
Redirect the applicant to enable them to pursue their request where it is believed
another Public Authority holds some or all of the information,
II.
Provide advice and assistance to the applicant to enable them to pursue their
request where the Trust does not know who owns some or all of the information.
5.4
Action by Directorates and Departments.
The Directorate or Department will:
a. Assist the Information Governance Department to locate and retrieve the information
requested.
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b. Advise the Information Governance Department if they believe there are any reasons
why the information should be withheld.
5.5
Response by Information Governance Department.
The Information Governance Department will respond to all requests and release
information having first:
a. Ensured that information released complies with the DPA 1998.
b. Considered whether the information requested or any part thereof is subject to an
exemption under the Act.
c. Consulted with third parties, where appropriate. Further details can be found in
Appendix B.
d. Where appropriate inform the Press Office of any information that is being released.
5.6
Timescale for Responding to Requests.
a. The Act requires that replies to requests for information be made within 20 working
days, after the payment of any fee. Those dealing with requests must do so promptly
and not delay responding until the end of the 20 working day period if the information
can reasonably be provided earlier.
b. The Information Governance Department aims to make all decisions within 20 working
days, including those where it needs to consider where the public interest lies in respect
of an application for exempt information.
c.
In those instances when it is not possible for the Information Governance Department to
deal with an application within 20 working days they must:
I.
Give an estimate of the date by which they expect to reach such a decision.
II.
Ensure that their estimates are realistic and reasonable in the circumstances of
the particular case, taking account, for example, of the need to consult third
parties where this is necessary
III.
Comply with their estimates unless there are good reasons not to do so. If they
exceed their estimate, they should apologise to the applicant and explain the
reason(s) for the delay. If they find, while considering the public interest, that the
estimate given is proving unrealistic, they must keep the applicant informed.
They must keep a record of instances where estimates are exceeded, and where
this happens more than occasionally, take steps to identify the problem and
rectify it.
5.7
Fee Charging.
The Trust has discretion to charge applicants a fee in accordance with the Fees Regulations
in respect of requests made under the general right of access.
See http://www.foi.gov.uk/feesguide.htm#part6. Further details can be found in
Appendix C.
5.8
Notification of Complaints Procedure.
When communicating any decision made in relation to a request under the Act's general
right of access, the Trust is obliged to notify the applicant of their right of complaint. The
Information Governance Department will provide details of the complaints procedure,
including how to make a complaint, and must inform the applicant of their right to
complain to the Information Commissioner if they are still dissatisfied following the Trust’s
review.
5.9
Refusal of Request.
Where the Trust relies on an exemption to refuse a request for information, the
Information Governance Department must inform the applicant which exemption has been
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claimed, and why that exemption applies. It must not merely paraphrase the wording of
the exemption. (Unless the statement would involve the disclosure of information which
would itself be exempt information).
The Act also requires the Trust, when withholding information (other than under an
"absolute" exemption), to state the reasons for claiming that the public interest test in
maintaining the exemption outweighs the public interest test for disclosure. The Trust must
specify the public interest factors (for and against disclosure) that have been taken into
account before reaching the decision. Further details on the exemptions that may be
claimed under the Act are in Appendix D.
5.10
Contracts and 3rd Party Confidence.
The Trust should only accept information from third parties in confidence if it is necessary
to obtain that information in connection with the exercise of any of its functions and it
would not otherwise be provided. In addition, the Trust should not agree to hold
information received from third parties "in confidence" which is not confidential in nature.
Acceptance of any confidentiality provisions must be for good reasons, capable of being
justified to the Commissioner. Further details are given in Appendix D.
5.11
Handling Requests for Information which "appear to be part of an organised
campaign". The Trust is not required to comply with a number of related requests where
the cumulative cost of complying with the requests would exceed the "appropriate limit"
(i.e. cost threshold) prescribed in the DCA Fees Regulations. In such cases the Trust must
consider whether the information could be disclosed in another, more cost-effective,
manner. For example, publication on the Trust’s website, and a brief notification of the
website reference to each applicant, might bring the cost within the appropriate limit.
6.0 Complaints Procedure
6.1 The complaints procedure may be used by any person who considers that the Trust is not
complying with its Publication Scheme, or who wishes to complain about the handling or
outcome of their request. Further details are in Appendix E.
7.0 Review of the Code of Practice
7.1 For monitoring purposes the Information Governance Department will keep a record of all
applications. This will include applications where all or part of the requested information is
withheld. In addition to a record of the numbers of applications involved where
information is withheld, senior managers in the Trust need information on each case to
determine whether cases are being properly considered, and whether the reasons for
refusals are sound. The Information Governance Department will also keep a record of all
complaints and of their outcome.
7.2 The Code of Practice and Procedures will be reviewed annually as part of the review of the
main Policy. The review will also monitor appropriate statistics, complaints and procedures
for dealing with requests for information.
7.3 The Information Governance Department will consider whether the Publication Scheme
can be updated to include any material that is the subject of repeat requests
Code of Practice - Responding to Requests
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8.0 Trust Contacts
8.1 Any enquiries about this Code of Practice or for more details on the Trust's Freedom of
Information Policy and Model Publication Scheme should be directed to:
Information Governance Department
Sheffield Teaching Hospitals NHS Foundation Trust
Weston Park Hospital
Whitham Road
Sheffield. S10 2SJ
Tel: 0114 226 5153, Fax: 0114 226 5154
1
E-mail: [Sheffield Teaching Hospitals NHS Foundation Trust request email]
8.2 In the first instance the contact for any complaints in relation to the Publication
Scheme or a request for information should be directed to:
The Information Governance Manager
Information Governance Department
Sheffield Teaching Hospitals NHS Foundation Trust
Weston Park Hospital
Whitham Road
Sheffield. S10 2SJ
Tel: 0114 226 5153
Fax: 0114 226 5154
E-mail: [Sheffield Teaching Hospitals NHS Foundation Trust request email]
8.3 Any complainant who considers that their complaint has not been satisfactorily
dealt with should address their complaint in writing to:
The Chief Executive
Sheffield Teaching Hospitals NHS Foundation Trust
Northern General Hospital
Herries Road
Sheffield. S5 7AU
Tel: (0114) 2434343
8.4 The official regulator for the Freedom of Information Act is:
Information Commissioner
Wycliffe House
Water Lane
Wilmslow
Cheshire. SK9 5AF
http://www.informationcommissioner.gov.uk/
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Appendix A
Assisting Applicants and Dealing with Requests
1)
When a person is unable to submit a written request, Information Governance
Department will provide further assistance. Depending on the circumstances,
appropriate assistance might include:
a)
Advising the applicant who else might be able to assist them, for example
Citizen’s Advice Bureau;
b)
In exceptional circumstances, offering to take a note of the application over the
phone and then sending the note to the applicant for confirmation.
2)
Where the request is vague or ambiguous the Trust is obliged, as far as practicable, to
assist the applicant in clarifying the request. The purpose of this is to clarify the nature of
the information sought, not to determine the aims or motivation of the applicant. This
may include providing:
a)
An outline of the different kinds of information which might meet the terms of
the request;
b)
A general response to the request setting out options for further information
which could be provided on request;
c)
Access to detailed catalogues and indexes, where available, to help the applicant
ascertain the nature and extent of the information held by the authority;
3)
If, following the provision of such assistance, the applicant is still unable to describe the
information requested in a way that would enable the Trust to identify and locate it; the
Trust is not expected to seek further clarification. It is, however, required to disclose any
information that has been successfully identified and explain to the applicant why it
cannot take the request any further. It must also provide the applicant with details of the
Trust’s Complaints Procedure.
4)
Where the applicant is not prepared to pay the appropriate fee, the Trust should
nevertheless consider whether there is any information that may be of interest to the
applicant that is available free of charge.
5)
Where the Trust is not obliged to supply the information requested because the cost of
doing so would exceed the "appropriate limit" (i.e. cost threshold), and where the Trust is
not prepared to meet the additional costs itself, it should nevertheless provide an
indication of what information could be provided within the cost ceiling.
6)
The Trust is not expected to provide assistance to applicants whose requests are deemed
vexatious within the meaning of the Act
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Appendix B
Consultation with Third Parties
1. In some cases the disclosure of information pursuant to a request may affect the legal
rights of a third party, for example where information is subject to the common law duty
of confidence or where it constitutes "personal data" within the meaning of the DPA
1998. Members of staff must always remember that, unless an exemption provided for in
either the DPA or the Freedom of Information Act applies in relation to any particular
information, it will be obliged to disclose that information in response to a request.
2. In some cases, a disclosure of information cannot be made without the consent of a third
party (for example, where information has been obtained from a third party and in the cir
cumstances the disclosure of the information without their consent would constitute an
actionable breach of confidence such that the exemption at Section 41 of the Act would
apply). In such instances, members of staff must consult that third party with a view to
seeking their consent to the disclosure unless such a consultation is not practicable (for
example because the third party cannot be located or because the costs of consulting them
would be disproportionate).
3.
Where information constitutes "personal data" within the meaning of the DPA, staff must
have regard to Section 40 of the Act which makes detailed provision for cases in which a
request relates to such information and the interplay between the Act and the DPA in such
cases.
4. Where the interests of the third party who may be affected by a disclosure do not give rise
to legal rights, consultation may still be appropriate.
5. Consultation should take place where:
a. The views of the third party may assist the Trust to determine whether an exemption
under the Act applies to the information requested; or
b. The views of the third party may assist the Trust to determine where the public interest
lies under Section 2 of the Act.
6. Members of staff may consider that consultation is not appropriate where the cost of
consulting with third parties would be disproportionate. In such cases, staff must consider
taking a reasonable course of action in light of the requirements of the Act and the
individual circumstances of the request.
7. Consultation will be unnecessary where:
a. The Trust does not intend to disclose the information relying on some other legitimate
ground under the terms of the Act;
b. The views of the third party can have no effect on the decision of the authority, for
example, where there is other legislation preventing or requiring the disclosure of this
information;
c. No exemption applies and so, under the Act's provisions, the information must be
provided.
8. Where the interests of a number of third parties may be affected by a disclosure and those
parties have a representative organisation which can express views on behalf of those
parties, the Trust may, if it considers consultation appropriate, consider that it would be
sufficient to consult that representative organisation. If there is no representative
organisation, the Trust may consider that it would be sufficient to consult a representative
sample of the third parties in question.
9. The fact that the third party has not responded to consultation does not relieve the Trust
of its duty to disclose information under the Act, or its duty to reply within the time
specified in the Act.
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10. In all cases, it is for the Trust, not the third party (or representative of the third party) to
determine whether or not information should be disclosed under the Act. A refusal to con
sent to disclosure by a third party does not, in itself, mean information should be withheld.
11. It is likely that many requests of this type will involve consultation with the NHS Trusts that
the Trust has relationships with. In these cases the Trust may wish to ensure that a
co-ordinated response is adopted to ensure that any exemptions are properly assessed.
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Appendix C
Fee Regulations
1. In dealing with any request for information under the Act the Trust is able to charge fees
in accordance with the Freedom of Information Fee Regulations.
http://www.foi.gov.uk/feesguide.htm#part6
2. The costs to be taken into account by the Trust when determining any fee to be charged
are:
a. The prescribed costs, meaning any costs reasonably incurred by the Trust in determining
whether it holds information of the description specified in the request, in locating and
retrieving any such information and in giving effect to any preference expressed by the
applicant as to the means of communication of such information, including the cost of
associated staff time, but does not include the cost of staff time incurred in determining
whether the Trust is obliged to comply with the request for information; and
b. The disbursements meaning any costs directly and reasonably incurred by the Trust in
informing the applicant whether it holds information of the description specified in the
request and in communicating any such information to him:
that would be incurred by the Trust in complying with the request for information to
which the fee relates.
Calculation of an Appropriate Fee
3. The Trust does not have to comply with a request for information if it estimates that the
cost of complying with the request would exceed the appropriate limit which is £450
(based on the DCA’s regulations of a notional cost of 18 hours work at £25.00p per hour)
4. Where the cost of complying with a request exceeds the appropriate limit then the Trust
may still decide to comply with the request. In this case then the Trust shall follow one of
the following arrangements:
a. provide the information at no charge
b. charge the full cost
c. charge the difference between the total cost and the appropriate limit
Aggregation of costs
5. Where two or more requests for information are made to the Trust and:
a. the two or more requests referred to in that section are for information which is on the
same subject matter or is otherwise related;
b. the last of the requests is received by the Trust before the twentieth working day
following the date of receipt of the first of the requests; and
c. it appears to the Trust that the requests have been made in an attempt to ensure that
the prescribed costs of complying separately with each request would not exceed the
appropriate limit.
then the estimated cost of complying with any of the requests is to be taken to be the
estimated total cost of complying with all of them.
Disbursements
6. The Trust will not charge for disbursements under £25.00.
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Appendix D
Refusal of Requests
1. Some of the information held by the Trust may be regarded as exempt information i.e. it
will not have to be provided in response to an individual request. There are 23 such
exemptions and they relate to information held for a variety of functions. These include
national security, law enforcement, commercial interests, and personal data. The
Information Governance Department will be responsible for deciding if an exemption is
applicable.
2. Before relying on an exemption, the Information Governance Department will usually be
obliged to consider two further points. First, some of the exemptions can only be claimed if
the release of the information would prejudice the purpose to which the exemption
relates. Thus information held in connection with law enforcement can only be withheld if
its release would, for example, prejudice the prevention or the detection of a crime.
Secondly, some of the exemptions also require the Information Governance Department to
apply the "public interest" test before making a final decision as to whether or not to
release the information. The public interest test requires the Trust to consider whether the
public interest in withholding the exempt information outweighs the public interest in
releasing it.
3. Most of the exemptions will require the Information Governance Department to consider
both the test of prejudice and the public interest test. However care must be taken to
determine if a specific exemption can be relied upon. It should be noted that only the
information to which an exemption applies would be withheld. Thus, if a particular
document had been requested which contained some exempt information, only those
specific items of exempt information could be withheld. The rest of the document would
still have to be released.
Contracts
4. When entering into contracts the Trust should refuse to include contractual terms which
purport to restrict the disclosure of information held by the Trust and relating to the
contract beyond the restrictions permitted by the Act. The Trust cannot "contract out" its
obligations under the Act. Unless an exemption provided for under the Act is applicable in
relation to any particular information, the Trust will be obliged to disclose that information
in response to a request, regardless of the terms of any contract.
5. When entering into contracts with non-public authority contractors, the Trust may be
under pressure to accept confidentiality clauses so that information relating to the terms
of the contract, its value and performance will be exempt from disclosure. The Trust should
reject such clauses wherever possible. Where, exceptionally, it is necessary to include non-
disclosure provisions in a contract, an option could be to agree with the contractor a
schedule of the contract that clearly identifies information, which should not be disclosed.
However, the Trust will need to take care when drawing up any such schedule, and be
aware that any restrictions on disclosure provided for could potentially be overridden by its
obligations under the Act, as described in the paragraph above.
6. In any event, the Trust should not agree to hold information 'in confidence' which is not in
fact confidential in nature. It should be aware that the exemption provided for in the Act
only applies if information has been obtained by the Trust from another person, and the
disclosure of the information to the public, other than under the Act, would constitute a
breach of confidence actionable by that, or any other, person.
7. Any acceptance of such confidentiality provisions must be for good reasons and capable of
being justified to the Commissioner.
8. It is for the Trust to disclose information pursuant to the Act, and not the non-public
authority contractor. However, the Trust may wish to protect from disclosure by the
contractor, by appropriate contractual terms, information which it has provided to the
contractor, which would clearly be exempt from disclosure under the Act, by appropriate
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contractual terms. In order to avoid unnecessary secrecy, any such constraints should be
drawn as narrowly as possible, and according to the individual circumstances of the case.
Apart from such cases, the Trust should not impose terms of secrecy on contractors.
9. The Act empowers the Lord Chancellor to designate, as public authorities for the purposes
of the Act, persons (or bodies) who provide under a contract made with a public authority,
any service whose provision is a function of that authority. Thus, some non-public authority
contractors will be regarded as public authorities within the meaning of the Act, although
only in respect of the services provided under the specified contract. As such, and to that
extent, the contractor will be required to comply with the Act like any other public
authority
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Appendix E
Complaints
Description of Procedure
1. Under the Secretary of State for Constitutional Affairs’ Code of Practice on the discharge of
public authorities’ functions made under Section 45 of the FOI Act, each public body is
required to have a means of dealing with those expressing dissatisfaction with the public
authority’s actions in response to a Request for Information (RFI). In line with the recommendations
contained within Section 45, Sheffield Teaching Hospitals NHS Foundation Trust has in place a
review procedure to be followed if a requester is disatisfied with a response.
2. This review procedure is not part of the Trust’s Patients complaints policy.
Receipt of correspondence
3. Any written correspondence from an applicant (including one transmitted by electronic means)
expressing dissatisfaction with the Trust’s response to a valid request for information should be
treated as a complaint, as should any written communication from a person who perceives the Trust
is not complying with its Publication Scheme. These communications should be handled in
accordance with the procedure outlined below, even if, in the case of a request for information
under the general right of access, the applicant does not state his or her desire for the Trust to
review its decision or its handling of the application.
4. In all cases, complaints should be acknowledged and the complainant should be informed of the
Trust’s target date for determining the complaint. Where it is apparent that determination of the
complaint will take longer than the target time (for example because of the complexity of the
particular case), staff must inform the applicant and explain the reason for the delay. The
complainant should always be informed of the outcome of his or her complaint.
5. The Trust can set its own target times for dealing with complaints, but these must be reasonable,
defensible, and subject to regular review. The Trust must publish its target times for determining
complaints and information as to how successful it is with meeting those targets.
Outcome
6. Where the outcome of a complaint is that information should be disclosed which was previously
withheld, the information in question should be disclosed as soon as practicable and the applicant
should be informed how soon this will be.
7. Where the outcome of a complaint is that the Trust’s staff have not properly followed the
procedures within the Trust, the Trust should apologise to the applicant. The Trust should also take
appropriate steps to prevent similar errors occurring in future.
8. Where the outcome of a complaint is that an initial decision to withhold information is upheld, or is
otherwise in the Trust's favour, the applicant should be informed of his or her right to apply to the
Information Commissioner, and be given details of how to make an application, for a decision on
whether the request for information has been dealt with in accordance with the requirements of
the Act.
Stage 1
9. The Information Governance Department will deal with any initial complaint in an informal manner.
If a complaint cannot be dealt with satisfactorily on an informal basis, the Information Governance
Manager will inform the complainant about the Trust’s procedure for dealing with complaints about
its actions in respect requests for information and in accordance with the DCA’s Code of Practice
under Section 45 of the Act and how he or she may contact the Information Commissioner if he or
she wishes to do so. The Information Governance Manager must also explain that although the
complainant cannot apply to the Commissioner for a decision until the Trust’s Review Procedure has
been exhausted, the Commissioner might investigate the matter at his or her discretion.
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10. All complaints at this stage must normally be dealt with promptly.
Stage 2
11. Where the complaint concerns a request for information under the general right of access, a person
who was not a party to the original decision, where this is practicable, should handle the review. In
most instances the Caldicott Guardian will conduct the review.
12. The Caldicott Guardian must respond to all complaints within 28 days.
Stage 3
13. If the applicant feels that his or her complaint has not been dealt with satisfactorily by the Caldicott
Guardian (or appropriate person) then they may pursue their complaint with the Chief Executive.
14. The Chief Executive must respond to all complaints with within 28 days.
15. If the applicant is still not satisfied then they may pursue their complaint with the Information
Commissioner
Footnote
1. http://www.lcd.gov.uk/foi/codepafunc.htm
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