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05 July 2004

To: All Persons Responsible

FREEDOM OF INFORMATION (FOI) ACT AND COMMUNICATIONS WITH THE HFEA

As I am sure you will be aware, the Freedom of Information Act 2000 comes into force from 1 January 2005.  From this date, all public bodies, including the HFEA, will be required to make all their records available to the public upon request.

This applies not only to new records, but to all our historical records including, for example, inspection reports, minutes of meetings, memos, emails and ongoing correspondence. There is no automatic exemption from the Act for any record, though there are three important exceptions:

• HFEA Register information (which is covered by s.31 of the HFE Act 1990).
• Human Fertilisation & Embryology (Disclosure of Information) Act 1992.
• Records covered by the Data Protection Act 1998
• Patient Records covered by the Data Protection Act 1998

Public bodies have a legal duty to assist any individual making a request for information under the FoI Act, which may mean letting them know that the information they seek is available from another organisation.  Public bodies do not have the right to ask someone why someone has asked for the information. Applications under the FoI Act can be made from anywhere in the world - they are not limited to the UK.

At this stage, the HFEA is still working on putting its procedures systems in place for compliance with the FoI Act, and we will update you on progress as the implementation of the Act approaches.  At this stage, we thought it would be useful to raise a few points about the Act and how it will impact upon HFEA records. 

 
You should be aware that any information your centre has already supplied or at some point in the future will supply to the HFEA which includes correspondence, licence applications, emails, etc., will be considered part of our records for the purposes of the Act, and we will have to disclose them upon request (assuming no exemptions apply). 

If you are an NHS centre:
You are also bound by the FoI Act.  If we receive an application for information that you have supplied to us, it may be appropriate to refer the applicant directly to you, the source of the record.

If you are a private centre:
Although you are not directly bound by the introduction of the FoI Act on the 1st January 2005, you need to be aware that records we hold, even if supplied by you, can be requested from the HFEA and will have to be provided by us to the applicant (assuming no exemptions apply).  Even if the document is labelled 'confidential' that does not automatically guarantee that it will be exempt from the Act.  In the case of older records, arguments for exemption on the basis of commercial sensitivities, for example, are more difficult to uphold.

The principle behind the Act is for public bodies to be open and accountable in their activities.  While there are exemptions which may apply to records we hold, it is a question of balancing the right to information against any arguments for maintaining confidentiality.  In some cases, elements of a particular record may qualify to be exempt (termed redacting), but that does not mean the record as a whole is exempt (e.g. it is possible that a named individual's details are removed from a record we supply to an applicant - but the record itself will still be supplied). 

You may wish to discuss the issue with your own legal advisors and records managers - especially if you are an NHS centre and also subject to the Act.  However, as soon as we are in a position to let you have any specific details and guidance on how the HFEA will handle applications, we will be in touch again.

Yours faithfully
 

Angela McNab
Chief Executive

Page last updated: 24 August 2012

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