Policy on release of establishment level data following requests under the Freedom of Information Act 2000

The Human Tissue Authority (HTA) is moving to a position where inspection reports for individual establishments will be published proactively on the HTA website. This policy describes the approach to take in the interim where an inspection report is requested under the Freedom of Information Act 2000 (FOIA). The policy also describes the handling of other requests for information held by the HTA relating to individual establishments.

Issued August 2010

Policy and legal framework

1. Section 39 of the Human Tissue Act 2004 requires the HTA to have regard to the principles of best regulatory practice; that is to say transparent, accountable, proportionate, consistent and targeted. Making information available under FOIA contributes to a number of these principles.

2. For information regarding our licensing and inspection activity in relation to individual establishments, it is HTA policy: 

• to be transparent about the activities we undertake, the conclusions and decisions we have reached
• to make information available, in the public interest, about the extent to which an establishment fulfils its obligations under Human Tissue legislation.

3. The Authority has agreed to the principle of extending our publication scheme under the FOIA and moving towards more regular and comprehensive publication of individual establishment information, but this will take some time and will not cover all possible information we hold that could be requested. 

4. The Freedom of Information Act provides the public with two related rights: the right to be informed whether or not the information requested is held by the authority, and, if so, the right to have that information communicated to him or her. While a number of exemptions are available (see below), it is HTA policy to begin from a presumption that the information will be made available. However, we will not do so until:

• the factual accuracy of an inspection report is agreed and the period for an establishment to make representations and appeals has passed;
• we have considered, on a case-by-case basis, whether any exemptions to disclosure apply under the FOIA;
• we have informed the establishment that we have received a request for information about them and set out our intended response. It is important to note that we are not asking their permission to make the information available, but informing them of our intention to release. A form of wording has been developed for this purpose.

Process overview

5. It is not the intention that each member of HTA staff becomes expert in responding to FOI requests, the Head of Strategy and Planning (HoSP) has a role in providing advice on the approach to take on a case-by-case basis. It is important however, that everyone has an understanding of the process for handling requests for establishment level data.

• An FOI request should be logged in CRM in the same manner as any other enquiry. Under the FOIA, a response must be provided within 20 working days. This begins on the day after the request was received.
• The enquiry should then be assigned to the HoSP who will consider whether there are any particular issues or problems raised by the case, whether exemptions are likely to apply, whether legal advice is required and whether input is required from colleagues in the Communications Directorate regarding any handling issues.
• The HoSP will then assign the enquiry to the individual who is the best-equipped to co-ordinate a response, recognising that input may be required from several Directorates. The HoSP will discuss any handling issues with the response co-ordinator.
• The response should be produced as far in advance of the 20 working day deadline as possible to allow any legal advice to be incorporated, the establishment to be informed and the response to be cleared by a member of SMT. 
• The response should be drafted in the name of the HoSP who will clear with SMT and send from their email account as a pdf file, copying in the response co-ordinator.
• The HoSP will publish a copy of the response to the disclosure log – removing any reference to the name of the individual who made the FOI request.
• The response co-ordinator should ensure that a note is added to the record to estimate how much time has been spent responding to the enquiry by each member of staff involved. This need only to be an approximation, but we would like to start to build up a picture of the cost of complying with FOI requirements.
• The coordinator should then close the case in CRM.

Exemptions

6. There are 23 exemptions from the rights of access under the FOIA. These exemptions mark out the limits of the right of access to information under the Act. While this policy cannot provide exhaustive guidance on exemptions from publication under the Act, everyone within the HTA should have a high level understanding of the most common issues at stake.

7. There are two types of exemptions under the FOIA, qualified and absolute exemptions.

8. Qualified exemptions are subject to a public interest test. This means it is not sufficient to establish that the information falls within the terms of a qualified exemption. It is also necessary to consider whether the public interest nevertheless requires that the information should be released. Qualified exemptions themselves fall into two categories, class-based and prejudice-based. In the case of the latter the HTA must first show that a disclosure of information would, or would be likely to, cause the harm identified in the exemption before applying the public interest test.

9. If an absolute exemption applies, the information does not have to be released under the FOIA and additional public interest evaluation is not required.

Exemptions most commonly considered

10. Section 22 of the FOIA provides a qualified exemption from the right to know if the information requested by an applicant is intended for future publication. To be covered by the exemption, the information must be held with the intention of publication at the time the request was made.

11. Section 31 of the FOIA creates a qualified exemption from the right to know if releasing the information would or would be likely to prejudice exercising functions for specified purposes. As the HTA have applied this exemption the specified purpose described by the Act is determining whether there are or may be circumstances which would justify regulatory action. The HTA would seek to use this exemption in cases where the period for an establishment to make a representation or appeal against a licensing decision has not yet passed.

12. Section 40 of the FOIA sets out various exemptions from the right to know for information that is personal data protected by the Data Protection Act (DPA). Most of these exemptions are absolute, which means there is no additional public interest test. Personal data is defined in the DPA and will include any recorded information in any form relating to an identifiable living person. It is HTA practice to consider as exempt all data naming a living individual (including HTA staff). DIs names need not be redacted as they are already published on the HTA website.

13. Section 43 of the FOIA provides a qualified exemption from the right to know if the release of the information is likely to prejudice the commercial interests of any individual or company.

Practical considerations

14. It should be clear that documents will either be exempt in their entirety (e.g. in the case of most section 31 exemptions), or will contain a mixture of information that can and cannot be released (e.g. as will be the case with section 40 exemptions). If the document contains a mixture, we would redact the exempt material. Redaction is the removal of exempt information from that which can be disclosed by blocking out or otherwise deleting words, names, phrases, sentences, paragraphs or sections of a document before release.

15. In creating a pdf document containing the redacted information, the response coordinator should overtype the information to be redacted with Xs in a Word version of the document, and then highlight over the Xs in black before the pdf is created. This removes the possibility of the redacted information being discoverable in the version of the document we make available.