32226
32232
FOI 1
Head of Corporate Services
Head of Corporate Services
12 March 2013
12 March 2013
31 March 2014
1

1.      Purpose

 

The Freedom of Information Scotland Act 2002 places various requirements on public authorities in the sphere of information provision and openness. As a public authority, NHS Fife therefore has obligations under the Act.

 

This Freedom of Information Act statement outlines what NHS Fife intends to do to ensure compliance with the Act. It is not a statement of how compliance will be achieved.

 

NHS Fife has made a commitment to both patients and staff to be as open and transparent as possible in the way that it works. This is a commitment, which is supported by the Freedom of Information (Scotland) Act 2002 (the Act) that gives the public greater rights to access information held by public authorities

 

NHS Fife will use all appropriate and necessary means to ensure that it complies with the Act and the associated Codes of Practice issued by Scottish Ministers.  

 

2.      Scope

 

This Statement provides a framework within which NHS Fife will ensure compliance with the requirements of the Act. 

 

A failure by staff to adhere to this Statement and its associated procedures may result in disciplinary action.  

 

3.      Background

 

The Freedom of Information (Scotland) Act 2002 (The Act) is part of the Government’s commitment to greater openness in the public sector, and this is a commitment that is supported by NHS Fife.  The Act enables members of the public to scrutinise the decisions of public authorities more closely and thereby ensure that the services we provide are efficiently and properly delivered.

 

The main features of the Act are:

 

·        A general right of access from 1 January 2005 to recorded information held by public authorities, subject to certain conditions and exemptions;

 

·        Public interest test: in cases where information is exempt from disclosure except where an absolute exemption applies, a duty on public authorities to:

 

i)    Inform the applicant whether they hold the information requested; and

ii)   Communicate the information to him or her;

 

Unless the public interest in maintaining the exemption in question outweighs the public interest in disclosure;

·        A duty to adopt and maintain a Publication Scheme, specifically applicable to the NHS;  The Head of Corporate Services will review the Publication Scheme on an annual basis to ensure it is kept up to date.

·        An office of Scottish Information Commissioner with wide powers to enforce the rights created by the Act and to promote good practice;

 

 

NHS Fife Recognises that it may also receive requests under the Environmental Information (Scotland) Regulations 2004 (EIRs).  However, all requests technically fall within the remit of FOISA.  Section 39 (2)(a) of FOISA allows NHS Fife to exempt information which it is obliged, under the EIRs, to make available to the public.  This allows NHS Fife to respond under FOISA, and go onto consider the request under the EIRs alone.

 

Although the intention of both pieces of legislation is to allow the public access to information there are some key differences between the two which are listed below:

 

·            Environmental Information covered by the regulations includes the state of air, atmosphere, water, soil, land, landscape as well as factors affecting the above elements such as substances, energy, noise, radiation or waste, emissions, discharges into the environment.

 

·            Requests for information can be made verbally, in person or by telephone as well as in writing.

 

·            The 20 day time limit for responding to requests can be extended to 40 days where the request is complex and voluminous and would involve a considerable amount of work

 

·            Provision of charging of fees is different – there is no upper or lower threshold and NHS Fife can recover, in full, the cost of supplying information.

 

·            Requests cannot be refused on cost grounds but the requester can be required to pay all reasonable costs before the request if met.

 

·            EIRs have exceptions rather than exemptions and all of these are subject to the public interest test.

 

·            Information relating to emissions has special status and will have to be supplied in most cases.

 

 

 

 

4.      Legal Compliance

 

NHS Fife regards all identifiable personal information relating to patients as confidential; compliance with legal and regulatory framework will be achieved, monitored and maintained.

 

NHS Fife regards all identifiable personal information relating to staff as confidential except where national policy on accountability and openness requires otherwise.

 

NHS Fife will monitor compliance with legal requirements and undertake independent assessments and audits from time to time.

 

NHS Fife will establish and maintain policies and procedures to ensure compliance with the Data Protection Act 1998, Human Rights Act 1998, and the common law duty of confidentiality. 

 

Staff will be provided with appropriate training commensurate with their role.

 

Risk assessment, in conjunction with overall priority planning of organisational activity will be undertaken to determine that appropriate, effective and affordable information governance controls are in place.

 

5.      Legal and NHS Fife Related Policies

 

NHS Fife has a Document Storage and Retention Policy with supporting systems and procedures that will ensure compliance with the Scottish Ministers Code of Practice on the Management of Records under section 61 of the Freedom of Information (Scotland) Act 2002.  All staff must ensure that all records comply with NHS Fife’s Records Management Policy and follow NHS Fife’s systems and procedures for record keeping. This is located under General Policies on the intranet and is coded as GP/R4 & GP/R4-1.

 

 Reference must be made to these alongside this policy. Legal and professional guidance should also be considered where appropriate.

 

6.      The publication scheme

 

NHS Fife’s publication scheme details the information that NHS Fife makes routinely available to the general public. It details the format in which the information is held and whether there is a charge for its provision. The publication scheme is available on NHS Fife’s website and in hard copy on request from Corporate Services, Hayfield House, Hayfield Road, Kirkcaldy, KY2 5AH.  Tel: 01592 643355. http://www.nhsfife.org/publicationscheme  

 

7.      General rights of access

 

Section 1 of the Act gives a general right of access from 1 January 2005 to recorded information held by NHS Fife, subject to certain conditions and exemptions contained in the Act. Simply, any person in the world making a request for information to NHS Fife is entitled:

 

i)        to be informed in writing whether NHS Fife holds the information of the description specified in the request; and,

ii)   If NHS Fife holds the information, to have that information provided to them 

A request for information under the general rights of access must be received in writing, stating the name of the applicant and an address for correspondence, and describing the information requested. For the purposes of general rights of access, a request is to be treated as made in writing if it is transmitted by electronic means, is received in legible form and is capable of being used for subsequent reference such as Fax or e-mail.

 

8.      Duty to provide advice and assistance

 

NHS Fife has a duty under section 15 of the Act, to provide advice and assistance to persons who have made, or wish to make, requests for information. NHS Fife will ensure that systems and procedures are in place to meet this duty.

 

NHS Fife has a generic request form (http://www.nhsfife.org/foirequest) and a generic email address:

 

[email protected]

 

The systems and procedures will conform to the Code of Practice issued under section 60 of the Act.

 

9.      Timescales

 

The Act obliges NHS Fife to respond:

 

·        Promptly; and 

 

·        In any event not later than 20 working days following the date on which the request was received. The request is considered as being received by NHS Fife when it is delivered.  

 

A member of staff receiving a request, which is not for them to deal with but for someone within NHS Fife, must pass on the request immediately to ensure that the time limit can be complied with. The deadline for the reply is calculated from the time the request was received in any part of NHS Fife. All such requests should be directed to the generic email address – [email protected].

 

If in doubt staff should contact the Head of Corporate Services as Executive Lead for FOI.

 

The obligation is to reply promptly and not more than 20 working days following receipt. A response should not be delayed until the end of the 20-day period if there is no reason why the information cannot be provided earlier.

     


 

 

10. Handling a Request for Information

 

Requests

 

All requests are entered onto our FOI Database and allocated a unique FOI number.  The FOI Administrator is responsible for logging the request appropriately and for liaising with the Executive Lead for FOI to ensure the request is managed effectively.  Back up for the FOI Administrator is provided by the Director of Finance’s PA during times of sickness or annual leave.

 

On receipt the request is assessed and categorised as a request under FOISA or EIR.  It is acknowledged and assigned an SMT member to act as lead in pulling together the full response.  (FOI Flowchart - http://on.nhsfife.org/foiflowchart : EIR Flowchart - http://on.nhsfife.org/eirflowchart)

 

The SMT lead is given a 15 day deadline to respond to the FOI Executive Lead.  This allows 5 days for checking accuracy and any amendments to be made by FOI Executive Lead.  Once satisfied that the response is complete the Director of Finance countersigns the response as a final check.  Responses are then sent out to the requester.

 

 

Clarification

 

Where the applicant has provided insufficient information to enable staff to identify and locate the information sought, or where the request is unclear, staff should help the applicant to describe more clearly and particularly what information they require.  This should not be an attempt to determine the applicant’s aims or motivation.  Where more information is needed to clarify the request, it is important that the applicant is contacted as soon as possible.

 

In such situations the clock for the 20 working day timescale for a reply stops ticking. The clock re-starts afresh from zero once the required clarification or information is received.

 

The 20-day clock does not stop if only part of the request is being queried.

 

Requesting clarification/rewording of the request must never be used as a delaying tactic.

 

Appropriate help could include:

 

·        providing an outline of different kinds of information which might meet the terms of the request;

 

·        providing access to detailed catalogues and indexes, where these are available, to help the applicant to see the nature and extent of the information held by NHS Fife;

 

·        providing a general response to the request setting out options for further  information which could be provided on request;

 

This list is not exhaustive. Remember to be flexible in offering advice and assistance taking into account the circumstances of each individual case.

 

If, after all reasonable assistance has been given, the applicant still cannot describe the information requested in a way, which enables NHS Fife to identify and locate it, then NHS Fife will not ask for further clarification.

 

Charging

 

NHS Fife will not generally charge for information that it has chosen to publish in its publication scheme. 

 

NHS Fife may charge an appropriate fee for dealing with a specific request for information not listed in the publication scheme.  This charge will be calculated according to the statutory “fees regulations.”

 

Where a fees notice is issued, the twenty working day time limit for responses begins on the day that the request is first received. However, the working days between the fees notice being issued and the fee being paid will be disregarded for the purposes of calculating the twentieth working day following receipt of the request.

 

NHS Fife will not provide printouts of other organisations websites.

 

Transferring Requests

 

Where NHS Fife receives request for information, which it does not hold, NHS Fife will inform the applicant promptly that under Section 17 of the Act it is does not hold the information requested.

 

Where NHS Fife does not hold the requested information but is aware that it is held by another public authority, consideration should be given as to the most helpful way of assisting the applicant.  It may include:

 

·          Supplying the applicant with contact details of the authority holding the information and to suggest that the applicant re-applies to that authority.  

 

·          Seeking the applicant permission to transfer their request to the other public authority. 

 

Applicants should only be redirected after NHS Fife has confirmed that another authority holds the relevant information and having advised the applicant in writing of the transfer, the revised contact details and that the statutory period for dealing with the request will run from receipt of the transferred request.

 

Where a request is partly for information, which NHS Fife does hold, and for that which it does not hold, the transfer will only be made with respect of the part NHS Fife does not hold.

 

It should be noted that there is no provision within FOISA for transferring requests and/or accepting transfers of requests from other authorities.  Transfers can  only be made under EIRs.

 

Consultation with Third Parties

 

NHS Fife will undertake consultation with third parties where their views will assist NHS Fife in assessing exemptions and the public interest.

 

NHS Fife will make reasonable efforts to contact third parties where necessary, but may consider that consulting the third party is not appropriate where the cost of consulting would be disproportionate

 

Where the interests of a number of third parties may be affected by a disclosure, NHS Fife may consider that consultation with their representative organisation or a representative sample of the third parties in question is sufficient.

 

In all cases, it is for NHS Fife (not the third party) to determine whether information should be disclosed under the Act. Non-response or refusal to consent to disclosure by a third party does not, in itself, provide sufficient reason for information to be withheld.

 

 

Public sector contracts

 

When entering into contracts, NHS Fife uses the NHS standard terms and conditions of contract. These terms and conditions have been drawn up to take cognisance of the Act.

 

Unless an exemption under the Act is applicable in relation to any particular information request, NHS Fife will be obliged to disclose that information in response to a request.

 

NHS Fife will not agree to hold information ‘in confidence’ that is not, in fact, confidential in nature. Advice from the Scottish information Commissioner indicates that the exemption provided for in section of the Act only applies if information has been obtained by a public authority from another person, and the disclosure of the information to the public, otherwise than under the Act would constitute a breach of confidence actionable by that, or any other person.

 

If it becomes necessary for NHS Fife to question whether information provided ‘in confidence’ by a contractor may be disclosed in response to an information request, NHS Fife will consult with the contractor in answering that question.

 

Accepting information in confidence from third parties

 

NHS Fife will only accept information from third parties in confidence if it is necessary to obtain that information in connection with the exercise of NHS Fife’s functions, and it would not otherwise be provided. However, NHS Fife will not agree to hold information in confidence if it is not confidential in nature.

 

Exempt information and refusal of requests

 

NHS Fife does not have to comply with information requests where the information requested is exempt under the provisions made in Part II of the Act, sections 25 to 41.  

 

Where required to do so by the Act, NHS Fife will apply the public interest test to exempt information to determine whether the public interest in disclosing the information outweighs the public interest in maintaining its confidentiality. If it is found to do so, NHS Fife will disclose the information in question

 

NHS Fife will not comply with a request for information when a fees notice has been issu