How will you handle all this freedom?

The Freedom of Information Act 2000 comes fully into force on 1 January 2005. From that date, everyone will be entitled to access recorded information held by or on behalf of public authorities. The Information Commission, which administers the act (as well as the Data Protection Act), says it is intended to “promote a culture of openness and accountability among public sector bodies, and therefore facilitate better public understanding of how public authorities carry out their duties, why they make the decisions they do and how they spend public money”.

Housing associations no doubt subscribe to these ideals, but they are not as yet, the commission says, among those bodies designated as public authorities to which the act applies. To be a public authority, and subject to the act, a body or office must be:

• listed in schedule 1 of the act, as amended from time to time
• a “publicly owned company” as defined by section 6 of the act
• designated by the secretary of state by statutory instrument, because the body or office appears to exercise functions of a public nature or provide any service under a contract made with a public authority.

The Housing Corporation and housing action trusts established under part 3 of the Housing Act 1988 are listed in schedule 1 of the act and arm’s-length management organisations will usually fall within the definition of publicly owned bodies. Registered social landlords were included in the list of bodies the act would apply to in its draft stage, but were not included when it was passed as a result of lobbying from the National Housing Federation.

But given that housing associations have been found to be public authorities in the case of human rights and European Commission procurement laws, perhaps it will not be long before they are designated as such under the Freedom of Information Act. The corporation might also decide to pass on to associations, via the regulatory code, similar duties to those the act imposes on public authorities.

Compliance with the act comprises two main strands:

• adoption and maintenance of a publication scheme, specifying classes of information that the public authority publishes or intends to publish, the manner in which such information is or is intended to be published and whether there is any charge for the information. All public authorities should now have adopted their publication schemes, which must be approved by the commission, since the deadline for the last set of public authorities to comply with this duty was 30 June this year
• the duty to confirm or deny whether the public authority holds the information it is being asked if it has. And, if it does, to communicate that information to the person making the request, subject to 23 exemptions and payment of a fee if chargeable.

Many of the exemptions from the right of access require the public authority to consider whether it is in the public interest to withhold the information requested. If possible during the period of 20 working days within which the public authority must deal with the request, legal advice should be sought before relying on an exemption.

RSLs will feel the impact of the act when it comes to their contracts with public authorities

Exemptions that might typically be applicable to housing bodies (including local authorities) subject to the act include:

• section 41: information that has been provided to the public authority in confidence
• section 43: where the release of information is likely to prejudice someone’s commercial interests (which may include those of the public authority). This exemption is subject to the public interest test.

If someone is asking for personal data, they should request it under the Data Protection Act and not the Freedom of Information Act.

The latter amends data protection so that individuals are allowed to access personal data kept by public authorities even if it is held in the form of unstructured paper records, such as a box of papers.

Whether or not they’re designated as public authorities, housing associations will feel the impact of the Freedom of Information Act when it comes to their contracts with public authorities. Confidentiality clauses in such contracts will now have to be considered in light of the act and the right of access, which will apply to any information held by or on behalf of the public authority, subject to any of the exemptions. The act is fully retrospective and applies to information created before and after 1 January 2005.

Housing associations will need to have systems in place and ensure personnel are trained to deal with the impact of the act. For example, they will need protocols for holding public sector information and must ensure contracts with public authorities clearly define what the association treats as its confidential or commercially sensitive information. The full impact of the act on the housing sector will start to become apparent in the new year.