Added: 27 June 2008
This guide updates and expands our earlier guide on this topic, published in October 2006.
Members of Parliament have recently been receiving aggressively-worded emails implying that they are under an obligation to provide answers to questions under the terms of the Freedom of Information Act 2000.
This is not correct. The Freedom of Information Act (FOI) covers “public bodies” rather than individuals and for the purposes of this legislation, MPs are classified as the latter and are therefore under no obligation to respond to such requests.
Freedom of Information Act 2000
From 1st January 2005 individuals became able to make requests for information under the Freedom of Information Act 2000. The Act covers all information held by English, Welsh and Northern Irish “public authorities” that exercise public functions such as health authorities, central government departments, the police force, and the education authorities.
Separate provision is made for Scotland with via the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.
Public authorities rather than individuals are covered by the Act which means that MPs are not covered by FOI, even if the documentation sought is stored either physically or electronically in the House of Commons. This means that your Member is under no obligation to respond to any request for information made to them as an individual. Guidance produced by the Information Commissioner states that “if an MP has written to a public authority passing on information from or relating to a constituent, the presumption should be that the information is not disclosed.”
However, there are circumstances when a third party may request copies of correspondence your Member has made to a public body – for example correspondence between the MP and a government department which would be technically covered by FOI.
It is extremely unlikely, however, under FOI, any correspondence of your employer would be released to a third party if it is on behalf of or mentions a constituent. In situations where a request has been submitted the public authority should contact the MP:
- the MP is aware that a request has been made;
- the MP can give advice on the implications of releasing the material to the public authority, some of which might not be immediately apparent from correspondence (for example, if the letter does relate to a constituent even if it is not obvious that it does so).
This is to make sure that the public authority has the information it needs to ensure that it does not release anything inappropriately or unlawfully.
Issues relating to the Parliamentary activities of the MP
Even though MPs as individuals are not covered by FOI, House of Commons administration headed by the House of Commons Commission is defined as a “public body” so correspondence held by it from MPs is subject to disclosure laws. This includes letters to the House on administrative business and Members’ correspondence to House officials.
FOI and the Office of the Parliamentary Commissioner for Standards and the Electoral Commission
An exemption exists relating to correspondence with the office of the Parliamentary Commissioner for Standards in order that dialogue between the Commissioner and the individual MP remains confidential. This exemption, however, does not necessarily apply to correspondence with the Electoral Commission.
The MySociety site, WhatDoTheyKnow?
The people at MySociety have a site available here (http://www.whatdotheyknow.com/) which is still in development. Over time it looks as if it could provide a useful resource to House of Commons staffers as it allows you to browse Freedom of Information requests as well as an easy-to-use facility to ask your own.
- MPs are not covered by FOI and neither you nor your employer are under any obligation to provide answers “under the terms of the Freedom of Information Act”;
- Correspondence held by public bodies that has been written by an MP COULD be subject to FOI, unless it concerns a constituent in which case an exemption applies;
- If a public authority has received an FOI request for the MP’s correspondence they should contact you first before complying;
- Correspondence from your Member held by the House of Commons Commission is subject to FOI;
- An exemption exists for correspondence with the Parliamentary Commissioner for Standards but not the Electoral Commission.
- House of Commons Library Standard Note on FOI requests:http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN02950
- Guidance from the Information Commissioner’s Office: click here [website address very long]
- Freedom of Information Act: http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000036_en_1
- Ministry of Justice’s guidance on FOI requests for public authorities:http://www.justice.gov.uk/guidance/guidancefoi.htm
- WhatDoTheyKnow? http://www.whatdotheyknow.com/
SS June 2008