For Freedom of Information (FOI) purposes, once a function has been transferred, records still held by the transferring organisation are considered to be held on behalf of the receiving organisation. Responsibility for compliance rests with the receiving organisation, which will need information about access issues surrounding series of records – what FOI exemptions have been applied and what complaints have been made to the Information Commissioner.
The position with the Environmental Information Regulations (EIR) is slightly different in that the organisation holding the records is responsible for compliance. Arrangements must be made to involve the Department with the policy lead – the receiving organisation – in any decisions to disclose or withhold information until the records have been transferred to it.
Particular issues arise in respect of records originating from third party organisations, for example international bodies, or where policy issues concern a number of departments or agencies. The organisation handling the request will need to ensure that all necessary consultations take place in the event of an FOI or EIR request. The transferring organisation will need to share information about contacts that they consult about these issues.
Some things will be essential whatever happens to the records. Responsibilities must be clearly defined so that staff in both organisations know what action they will be expected to take in any of the circumstances set out below.
Handover or guidance notes prepared by the transferring body should include:
- staff directory details indicating who is responsible for particular functions
- contact points for help during the transition period and, if applicable, subsequently
- an alert to when and for which records third parties might need to be consulted about disclosure decisions, with contact details
- details of previous requests that seem relevant, of exemptions and of the records likely to contain exempt information
- guidance on likely future request areas
FOI publication schemes
The transfer of functions may mean revising the Publication Scheme of either organisation. Schemes should be reviewed and revised as necessary.
FOI requests received before the transfer of functions
FOI requests received before the transfer of functions but which are not yet completed are known as ‘live FOI requests’ and they become the responsibility of the receiving organisation.
The transferring organisation should:
- provide details of live requests, including who is handling them, to the FOI officer of the receiving organisation.
The receiving organisation should:
- enter the case details in its FOI tracking system
- make sure policy officers handling requests are made aware of their new organisation’s guidelines, procedures and pro forma, and in particular whether draft replies must be sent to the FOI officer for clearance before despatch
- ensure that the applicant is told why the reply is being sent from a different organisation
- if there will be a delay in completing the public interest test, ensure the applicant knows who to contact for updates
Both organisations should:
- develop protocols to advise and exchange information and knowledge in relation to requests for a transitional period, designating staff to liaise on this
FOI requests received after the transfer of functions
These requests are the responsibility of the receiving organisation. The FOI Officer of the receiving organisation will need details of policy staff so that requests can be allocated appropriately or advice sought on allocation. Policy staff must be made aware of the guidelines, procedures and pro forma they are expected to use.
If any records have remained with the transferring organisation, protocols will be needed to provide for:
- advice as to the likely whereabouts of records relevant to the new FOI request
- searches of the records for relevance to new FOI requests by staff of the transferring organisation or provision of access to them to staff of the receiving organisation
Current FOI complaints and appeals
Complaints to the Information Commissioner’s Office (ICO) should be handled by the receiving organisation, even though it was not the body that handled the original FOI request.
The transferring organisation should:
- alert the receiving organisation to all active complaints and appeals and provide relevant paperwork
- provide details of the original case, including copies of correspondence and of the information provided or refused
- explain to the ICO that it has transferred responsibility for the complaint because of the transfer of function
- provide advice on request
The receiving organisation should:
- deal with the complaint
- consult the transferring organisation
With appeals to the Information Tribunal, the appeal is against the ICO, not the body involved in the original requests. An organisation can apply to be joined with the ICO if necessary and the receiving organisation should consider whether the issues are such that it should apply to be joined. Details of the original request and the ICO complaint will be required from the transferring organisation.
Past FOI requests, complaints and appeals
The transferring organisation should provide details of what has been disclosed or refused previously, and what exemptions have been used. This will be needed by the receiving organisation if similar requests are likely to be received.
Current and new EIR requests
The organisation holding the records is responsible for compliance. Until the records have been transferred the transferring organisation should complete all necessary action but should consult the receiving organisation to ensure that disclosure decisions take account of its policy concerns.
While it continues to hold the records the transferring organisation should:
- consult the receiving organisation about disclosure or non-disclosure of information
The receiving organisation should:
- provide views on disclosure or non-disclosure within statutory deadlines
If the records are transferred before action is complete, the transferring organisation should:
- provide details of live requests to the FOI officer (or the EIR officer if different) of the receiving organisation
- provide advice on the likely whereabouts of relevant records
The receiving organisation should:
- enter the case details in its tracking system
- make sure policy officers handling requests are made aware of their new organisation’s guidelines, procedures and pro forma, and in particular whether draft replies must be sent to the FOI/EIR officer for clearance before despatch
- ensure that the applicant is told why the reply is being sent from a different organisation
Current EIR complaints and appeals
Complaints and appeals should be handled by the body holding the records, even if it is not the body that handled the original request.
While it continues to hold the records the transferring organisation should:
- consult the receiving organisation about disclosure or non-disclosure of information
The receiving organisation should:
- provide the Department’s views on disclosure or non-disclosure within statutory deadlines
- if it believes significant issues are involved in an appeal to the Information Tribunal, consider applying to be joined with the ICO
If the records are transferred before action is complete, the transferring organisation should:
- inform the ICO that responsibility for compliance has been transferred
- provide details of the case to the receiving organisation
The receiving organisation should:
- respond to the ICO or the Information Tribunal as necessary
- if it believes significant issues are involved in an appeal to the Information Tribunal, consider applying to be joined with the ICO