The following advice on the Freedom of Information Act (FOIA) has been agreed by Treasury Solicitors at HMT. The disclaimer below should be included in all consultation documents and can be amended according to Departments' requirements. Cabinet Office also recommends that policy officials contact Departmental lawyers for further advice.
For consultation, the most obvious effect of the Freedom of Information Act is on paragraph 4.6 of the Code of Practice on Consultation. Until January 2005, paragraph 4.6 clearly indicated that 'if specifically requested,' respondents may expect that any part of their response could be kept confidential: that is personal information as well as information and opinions submitted in response to questions in the consultation document.
FOIA effectively overrides this guarantee. Its implementation means that policy officials will not now be able to give an open-ended assurance of confidentiality on information contained in consultation responses.
The Lord Chancellor has issued a binding Code of Practice on the Discharge of Public Authorities' Functions under Part I of FOIA. This provides guidance on when departments should agree to hold information in confidence. This is to avoid departments agreeing to confidentiality in one context (e.g. consultation) only to find that they have to disclose the information when they get a request under FOIA. The guidance indicates that the following factors should be taken into account:
This guidance indicates that the onus is on the authority to justify the need for offering confidentiality on a case by case basis. The fact that the respondent has requested confidentiality will not be decisive. If you follow the guidance in the Lord Chancellor's Code when agreeing to treat information as confidential, then you should be able to treat that information as confidential if you subsequently get a request for disclosure of the information under FOIA. Of course, it will be necessary to keep the information under review, since it might lose its confidential nature because of the passage of time or for other reasons.
In this light, paragraph 4.6. of the 2004 Code of Practice on Consultation has been updated:
Code of Practice on Consultation, Criterion 4.6 - AMENDED
Explain who will use the responses and for what purpose. You should make it clear that, according to the requirements of the Freedom of Information Act (2000), all information contained in the response including personal information may be subject to publication or disclosure. Where respondents request that information given in response to the consultation be kept confidential, explain this will only be possible if it is consistent with freedom of information obligations.
Treasury Solicitors have advised that safeguards to protect vulnerable respondents, such as children, prisoners or people with psychiatric disorders, will not be reduced by the implementation of FOIA. This is because such types of response, even where the respondent does not ask for confidential treatment, would be likely to trigger an implied duty of confidentiality on the department so that it could undertake to protect the information without breaching the Lord Chancellor's Code of Practice. This means that information provided in response to consultation by vulnerable respondents could (depending on the circumstances) be published anonymously, edited to remove information which might identify them, or wholly withheld. Again, you should check with your own departmental legal team if you think that responses from vulnerable respondents may need to be kept confidential.