Section 45 – Code of Practice, request handling

The section 45 Code of Practice (the Code) fulfils the duty set out in section 45 of FOIA.

The Code provides guidance on the practice it would be desirable for you to follow in connection with the discharge of your functions under Part 1 of FOIA.

The Code should be used as a handbook which sets out best practice to help you with the day to day handling of requests. Adhering to the Code will result in positive benefits for your authority, and in practical terms, offer good customer service. It covers the following areas:

• Right of Access
• Advice and assistance
• Consultation with Third Parties
• Time limits for responding to requests
• Internal Reviews
• Cost limit
• Vexatious requests
• Publication Schemes
• Transparency and confidentiality obligations in contracts and outsourced services
• Communicating with a requester
• Datasets
• Transferring requests to another public authority

Prior to the current Code, data sets were dealt with specifically under an additional s45 Code of Practice (datasets code). The current Code combines these.

You should also be aware of how other legislation such as the Environmental Information Regulations 2004 (EIR), the UK General Data and Protection Regulations (UK GDPR) and the Data Protection Act 2018 (DPA) may affect the disclosure of information.

What is the status of the Code?

The Code is derived from the legislation itself. Section 45 of FOIA requires the production of a Code of practice providing guidance to public authorities.

The current Section 45 Code of Practice was issued by the Cabinet Office on 4 July 2018.

Prior to the coming into force of The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 the section 45 Code of Practice was issued by the Chancellor of the Duchy of Lancaster.

Section 47 of FOIA places a duty on the Commissioner to promote the following of good practice by public authorities and the observance, by them, of FOIA and codes of practice. In addition to the Code, you are advised to consult the Commissioner’s own guidance regarding best practice.

The Commissioner can take account of whether the Code has been observed when considering complaints.

If more information is needed before deciding whether or not your practice has conformed to the Code, the Commissioner can serve an information notice.

The Commissioner has the power to issue a practice recommendation under section 48 of FOIA if they consider that a public authority is not conforming to the Code. This will include steps the organisation should follow in order to meet the Code’s requirements.

The practice recommendation would indicate which provisions of the Code had not been met and specify steps for the public authority to take.

Failure to follow a practice recommendation could lead to a failure to comply with FOIA.

The Commissioner can also refer to non-conformity with the Code in decision and enforcement notices.

What are the benefits of conforming to the Code?

Adhering to the Code should result in positive benefits for your authority, and will help it to provide good customer service.

Benefits of conforming could include;

• reduced likelihood of breaching the FOIA;
• increased customer satisfaction;
• improved public perception of an organisation;
• quicker turnaround of FOIA requests;
• more streamlined procedures;
• a saving of staff time; and
• potentially less resource spent on dealing with complaints to the ICO.

Failure to conform could result in;

• comments made on your practices in a Decision Notice;
• further monitoring and enforcement, for example through a practice recommendation and consensual audit;
• failure to take account of a practice recommendation may lead in some circumstances to an adverse comment in a report to Parliament by the Commissioner; and
• a failure to comply with FOIA, which may result in the issuing of an enforcement notice.

The Code is designed to you help you understand your obligations under the FOIA. These benefits are interlinked, and you will obtain most benefit by adhering to all aspects of the Code.

For answers to some common questions please refer to our document:

‘Request handling, Freedom of Information – Frequently Asked Questions’.