The
Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2000 (FOIA)
give individuals a general right of access to all types of recorded information held by public
authorities in the United Kingdom. The Acts place a number of obligations on public authorities,
in addition, the public has the right to access information held by public authorities subject to
some exemptions. Dentists providing general dental services (GDS) or Personal Dental
Services (PDS) are listed as public authorities.
FOIA means that dentists will have the right to ask for information held by a Primary Care
Organisation, such as a PCT, and that members of the public will be able to request
information held by GDS and PDS practices.
Every public authority must routinely publish information, respond to requests for
information and adopt a publication scheme. A publication scheme is a document that
should set out for the public how the public authority intends to publish the different classes
of information it holds and whether there is a charge for the information.
Updated publication schemes 2009
Data protection and freedom of information – how they interact
Right to obtain information
Exemptions
Fees and costs
Vexatious or repeated requests
Destruction of information
Refusal to disclose
Compliance with the Act
Publication schemes
Contacts
Annex 1 – the Information Commissioner’s guide to the model publication scheme
(England, Wales and Northern Ireland)
Annex 2 - BDA model publication scheme (Scotland)
Updated publication schemes 2009
The Information Commissioner’s guidance
on publication schemes was reviewed in
2008, with public authorities in England,
Wales and Northern Ireland told to adopt
an updated scheme by 1 January 2009.
Under the new scheme practices and other
public authorities must be more proactive.
The key to the new regime is not so much
the policy. Pieces of paper can so easily
become dead letters that tick a box for
practice inspectors but do not affect the
way in which practices operate on a daily
basis. Therefore your new policy must be
about routinely publishing or making
information available. Normally your
practice information leaflet will cover most
of the information that the Commissioner
says must be made public, for example the
names of dentists, details of services
offered and opening times.
© BDA January 2009
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The Information Commissioner now states
that general dental practitioners in England
and Wales should presume that they must
disclose their final annual NHS contract
value and UDA targets (adjusted for any
year end clawbacks) to any member of the
public who requests the information.
The BDA has challenged this view,
however, recent Information Commissioner
adjudications and court cases confirm that
that disclosure should be the default
situation. General dental services (GDS)
and personal dental services (PDS)
contracts are public money and the Act
provides a general right for the public to
know the value of any given item of public
spending.
The Information Commissioner’s guidance
for publications schemes for dentists is
attached in Annex 1, together with the
BDA’s advice on how to comply.
The only exception to disclosure is if a
contractor can give a clear reason why it
should not be disclosed. Two relevant
reasons could be commercial prejudice
and personal financial information.
However, neither apply automatically.
The ICO has said that there is no unfair
prejudice to your commercial interests
should other dental practices know your
contract value. In fact the Information
Commissioner states that it is in the public
interest of gaining value for money that
competitors know the value of government
contracts.
In relation to personal financial information
it is the Information Commissioner’s policy
that individuals in the public sector must
accept that their income bands will be
general public knowledge. Also it must be
remembered that contract values also
cover practice expenses and so do not
necessarily give an indication of any given
dentist’s income.
Therefore to take advantage of the
exceptions you must give further details as
to why your circumstances could lead to
undue commercial prejudice or the
disclosure of delicate personal information.
In order to rely on a reason for not
disclosing, you must be able to show that
you have considered disclosure and state
your reason in your Freedom of
Information publication scheme (see
Annex 1).
Where you do give a reason for
nondisclosure the enquirer could always
ask the Information Commissioner to
adjudicate which may lead to a ruling that
you must disclose the NHS contract value
and UDA target after all.
Scottish Information Commissioner’s
requirements have remained unchanged
and a model publication scheme for
Scotland is attached in Annex 2. There
will be new publication schemes in
operation in Scotland from June 2009 and
this model will be updated accordingly.
Data protection and freedom of
information – how they interact?
The Data Protection Act 1998 (DPA)
provides living individuals with the right of
access to personal information held about
them. This is a personal right. Data
Protection law also protects the right to
individual confidentiality, for example
health records or bank account details.
The FOIA relates to government
information – how public money is spent
and how decisions are made. NHS dental
practices are specifically covered by the
FOIA since they receive public money in
order to provide a frontline healthcare
service. However, public authorities must
bear in mind that a lot of information they
hold will be personal and confidential.
Public authorities must also abide by the
DPA and in many cases will have to
balance the competing obligations. The
FOIA publication scheme should be a tool
that helps dental practices to achieve this
balance.
Right to obtain information
st
The right of individuals to be given information held by public authorities came into effect on 1 January
2005 across the UK.
FOIA Schedule 1 lists dental practices providing GDS or PDS services as public authorities. NHS
dental practices are specifically covered by the FOIA since they receive public money and provide a
frontline healthcare service.
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Under the Act an individual may request information held by a public authority. Though, sometimes
disclosure of the information is covered by one of the exemptions in the Act.
The FOIA has been widely used and requests could come from any member of the public. However,
the Act has largely been used by patients, politicians, journalists and other dentists.
No reason needs to be given for seeking the information and no promises need to be given on how
it will be used. Once it has been disclosed it is in the public domain and can be passed on or
published. The request for information does not need to mention the FOIA to be covered.
In order to obtain information a written request should be made, both letters and emails count. In
Scotland the application can also be made by video or audio tape. The applicant should include their
name and address.
Public authorities should provide the name or title of the person to whom requests should be sent.
Contact addresses must be published. Websites should contain an email address as well as a postal
address.
Information must be provided within 20 working days. In certain circumstances this can be extended:
the public authority might seek clarification about the information requested; or it may need to take
legal advice on whether an exemption applies. However, in Scotland the twenty working day period is
an absolute deadline.
In Scotland if the authority does not have the required information it is obliged to tell the applicant. In
England, Wales and Northern Ireland no notice is required but it is sensible to make such a response
within 20 working days.
Public authorities in England, Wales and Northern Ireland have a more general duty to confirm or deny
that they hold certain information if they are asked the about its existence.
Authorities just need to provide the information requested, not the whole document containing it.
Information should be provided in writing or by allowing the applicant to read the information.
Exemptions
A public authority is able to decline to
disclose information if one of the
exemptions applies. For some of the
exemptions, authorities must also take into
account the balance of the public interest to
Confidentiality
The normal rules of medical confidentiality
apply here. For example, personal
information about individual patients
cannot be disclosed as well as personal
information about employees. Employee
names and job titles would not be held to
be confidential, however, except where
their individual circumstances make this
necessary.
Information held by dentists that is likely to
be covered by confidentiality includes:
.
personal information
about patients, including personal health
information
.
personal information
disclose or not. In order to withhold
information covered by an exemption, an
authority must show disclosure would
prejudice a specified interest (in Scotland
an authority must show that disclosure
would substantially prejudice an interest).
Public authorities are expected to disclose
and exemptions are only to be used
exceptionally.
about employees and other practice
workers
.
information about patient
complaints (except the number of
complaints)
.
appointment information
and individual claim information.
Some information held by PCOs
about dentists that is likely to be
confidential includes:
.
personal information
about dentists or staff
.
health information about
dentists or staff
.
information about patient
complaints (except the number of
complaints).
There may be information that dentists may
feel should be covered by this exemption
which may not to be covered, for example
the results of investigations by a Primary
Care Organisation. Whilst a public
authority is conducting an
© BDA January 2009
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information
investigation into a dentist, it is confidential
and exempt from disclosure, but once a
decision has been made it then becomes
open to disclosure.
Trade secrets or prejudicing
commercial interests
Trade secrets are business information
that are not generally known to the public
or competitors that gives a commercial
advantage. Trade secrets must be
balanced against the public interest in the
disclosure of information.
Most dental practices will not have trade
secrets. Dental practice should be
evidence based and dentists should not be
using clinical procedures that are not
based on published evidence.
A commercial interest relates to a person’s
ability successfully to participate in a
commercial activity, it is the not the same
as a financial interest. When considering
whether a dentist’s commercial interests
might be prejudiced it is necessary to
identify the interests themselves and how
disclosure might prejudice them. Examples
are business reputation, the ability to
obtain supplies or the ability to secure
finance. Commercial interests must also be
balanced against the public interest in the
disclosure of information.
Government guidance is that there is
generally a public interest in the disclosure
of commercial information in order to
ensure that there is transparency and
accountability in the allocation of public
funds.
Factors in favour of maintaining trade
secrets and commercial confidentiality
include where disclosure would make it
less likely that companies or individuals
would provide public authorities with
commercially sensitive information in the
future.
The general advice is that before contracts
are awarded the public interest argument
for disclosure is not strong, but after the
contract has been awarded there is a
greater case for information to be made
available regarding the contract price and
services to be provided.
GDS and PDS Earnings and contract
If asked, it is possible that a PCO or the
BSA would disclose information about
dentists’ NHS earnings or contract values.
If there was no disclosure, the Information
Commissioner might order the information
to be disclosed. Information on the amount
of money the NHS and patients are paying
for GDS or PDS services for the last
financial year (that is net of clawbacks), if
known by other dentists, is unlikely to be
deemed to damage the practice’s
commercial interests.
Where a Primary Care Organisation
invites bids for funding, it is unlikely that
the results of the bidding process will be
covered by commercial interest
exemptions and so will be disclosable.
Some PCOs already publish the results of
grant application processes in terms of
amounts awarded to practices and for
what purpose. The details of the actual
bidding process and the bids themselves
might also be published, although this is
less likely because it might be discourage
future bidders and therefore not be in the
public interest.
The Information Commissioner has stated
that they expect dental practices to
disclose their NHS contract values and
targets if asked.
As discussed above, the Information
Commissioner has said that there is no
unfair prejudice to your commercial
interests should other dental practices
know your contract value. In fact the
Information Commissioner states that it is
in the public interest of gaining value for
money that competitors know the value of
government contracts.
In relation to personal financial information
it is the Information Commissioner’s policy
that individuals in the public sector must
accept that their income bands will be
general public knowledge. Also it must be
remembered that contract values also
cover practice expenses and so do not
necessarily give an indication of any given
dentist’s income.
© BDA January 2009
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Therefore to take advantage of the
exceptions you must give further specific
Information from practice visits
If asked it is likely that a PCO would
disclose a practice visit report for an
individual practice and would certainly
disclose an aggregate report for all local
details as to why your circumstances could
lead to undue commercial prejudice or the
disclosure of delicate personal information.
practices. Although the information may
affect the commercial interests of the
dental practice, it is likely that, because
compliance with NHS regulations and
health and safety standards is a legitimate
concern of patients, it would be in the
public interest to publish the information.
Fees and costs
Fees may be charged for providing the information under the FOIA. However, you should not charge
for information since this is information that they are required to provide as part of your terms of
service, or is information voluntarily provided, such as oral health information.
It is unlikely that a charge will be levied by PCOs for straightforward requests and for dental practices
charges are likely to be minimal. Where the information request is covered by other pieces of
legislation, for example the Data Protection Act, the charge that is appropriate for that legislation will
apply even if it is lower.
England, Wales & Northern Ireland
There is a limit for the cost of meeting
requests under the FOIA. For public
authorities other than government
departments, the limit is £450. In order to
calculate the cost of providing the
information, the number of hours should be
calculated as the total time taken to
determine whether it holds the requested
information, locate it and retrieve it. The
cost of staff time to be used has been fixed
at £25 per hour per member of staff. If the
calculated amount is below £450 then the
authority may make a reasonable charge
for providing the information to cover any
costs relating to photocopying, printing or
postage.
If the authority proposes to charge a fee, it
must give the applicant a fees’ notice
stating the amount and may require
payment prior to the applicant being given
the information. The applicant has three
months to pay. The number of working
days between the applicant being given a
fees notice and the fee being received is
not counted in the 20 working day period
that the authority has to meet the request.
If the anticipated cost of meeting the
request exceeds the maximum limit of
£450, the authority may refuse to provide
the information, though it could agree to
provide the information without a fee or
charge the actual cost of responding to the
request including staff time.
Where two or more requests are made are
made to a public authority by the same
individual, or by different people who
appear to be acting in concert, or in
pursuance of a campaign, the estimated
cost can be added together and the
request denied if it exceeds the maximum
limit.
Scotland
There are different amounts for costs in Scotland. Public authorities should calculate the cost of
compliance in the same way as above, using a figure of £15 per hour per staff member. The cost of
compliance above which a disclosure need not be made is £600 for all public authorities.
Fees that can be charged are also calculated differently. Where the projected cost of disclosure is less
than £100, no fee is payable by the applicant. Where the projected cost is between £100 and the
prescribed amount, £600, the fee will be no more than 10 per cent of the difference between them.
Fees are for photocopying, production of the information in the required format and postage.
In Scotland where different people who appear to be acting in concert make requests the term
campaign is not used; instead reference is made to “a purpose other than for obtaining information”.
Vexatious or repeated requests
Public authorities are not required to
respond to vexatious or repeated requests
although they may do if they wish. A
vexatious request is likely to be one that is
designed to subject the authority to
inconvenience, harassment or expense.
The effect of the request is important, as
© BDA January 2009
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well as the intention. If a request will cause
disproportionate inconvenience and
expense it might be held to be vexatious.
Where the applicant had submitted a
previous request or requests for identical
or very similar information, the public
authority is not required to provide the
information unless a reasonable interval
has elapsed between compliance with the
previous request and the making of the
latest request. If information changes
regularly, for example performance
information or activity information, then if it
is requested every time the information
changes, it is not covered by this
exemption.
Destruction of information
It is an offence, after the information request has been made, to alter, deface, block, destroy or conceal
information with the intention of preventing disclosure. This does not prevent information being
properly managed and old records being destroyed after an appropriate length of time.
Refusal to disclose
Where a request to disclose is refused, the public authority must write to the applicant stating:
.
.
.
the fact that the request has been refused
specifying the exemption in question
stating (if that would not otherwise be apparent) why the exemption applies.
The response must also contain details of any complaints procedure for handling requests for
information or state that the organization does not have one. The applicant should also be advised of
their right to complain to the Information Commissioner or the Scottish Information Commissioner.
Commissioner in Scotland.
Compliance with the act
An applicant who is dissatisfied with the
response of a public authority to a request
for information, should complain to that
public authority in the first instance. In
England, Wales and Northern Ireland
authorities should have a complaints
procedure. In Scotland, applicants may
ask for a review of the refusal and
authorities usually have 20 days to
complete the review. If the authority
upholds its decision, the applicant can
complain to the Information
Commissioner or the Information
The Commissioner has a duty to
investigate the case and give a ruling on
whether the information should be
disclosed or not. The Commissioner may
also issue an enforcement notice, where
the authority is compelled to undertake a
particular action.
In England, Wales and Northern Ireland if
the applicant or the authority is dissatisfied
with the Commissioner’s ruling an appeal
can be made to the Information Tribunal.
This can be made on a point of law or on
the basis that the Commissioner ought to
have exercised discretion differently.
Further appeal can be made to the High
Court on a point of law. In Scotland an
authority and applicant can appeal on a
point of law to the Court of Session against
England and Wales
The original publication scheme – that is
the list of information available – had to be
in place by 31 October 2003. As a list of
information available practices must be
able to supply the information to anyone
who requests it. Having reviewed the
situation the Information Commissioner
required all public authorities to introduce a
new publication scheme by 1 January
2009.
a decision made by the Information
Commissioner in Scotland.
Publication schemes
FOIA. All public authorities must simply
adopt this statement simply by accessing a
copy of the Information Commissioner’s
model and promising to abide by it. Be
pragmatic, understand what the scheme
commits you to do but there is no formal
procedure, no form filling and no need to
notify the Information Commissioner. The
publication scheme is available at
www.ico.gov.uk The scheme is for
organisations that provide both NHS and
private activities so is applicable to most
dental practices.
The new publication scheme is basically an
extended commitment to comply with the
© BDA January 2009
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However, adopting the scheme does
commit you to routinely publish or make
information available. The Information
Commissioner has published specific
guidance on what this information should
be and how it should be published. A copy
is attached in Annex 1, including further
comments by the BDA.
Scotland
The publication scheme should have been in place by 1 September 2004, with rights of access from
January 2005.
The scheme must include the following information:
.
.
.
The classes of information the authority publishes
The manner in which the information is published
Details of any fees for the information.
The BDA’s model scheme for Scotland, which have been approved by the Scottish Information
Commissioner, are attached at annex 2. It makes no mention of individual or practice NHS income.
Contacts
England, Wales & Northern Ireland
The Information Commissioner
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Tel: 01625 545 745
Fax: 01625 524 510
http://www.ico.gov.uk/
Scotland
Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS.
Tel: 01334 464 610
Fax: 01334 464 611
http://www.itspublicknowledge.info/home/S
cottishInformationCommissioner.asp
Guide to Information provided by NHS dentists under the model publication scheme
Under the Freedom of Information Act 2000 all public authorities are required to have and operate a
publication scheme approved by the Information Commissioner.
It is the intention of the Information Commissioner that all public authorities should adopt and operate the one
model scheme that has been approved. This is a very general scheme based on the principal that all public
authorities need to recognize the public interest in the transparency of the services provided for and paid for
by the general public. It is a commitment to make information easily available to the public.
Note: The scheme is only for information held as a public authority and does not include any
information that is not held, is held for other purposes or would be exempt from release.
The scheme requires three documents to be considered:
the model scheme itself;
• our guidance on adopting and operating the scheme; and,
a guide provided by the public authority indicating what information will be provided, how it will be
provided and whether any charge will be made for its provision.
[BDA note: the model scheme and guidance on operating the scheme are published by the Information
Commissioner. Both can be obtained from the Information Commissioner or downloaded from
www.ico.gov.uk. The third document should be based on this Annex, this is also published by the Information
Commissioner though the BDA has added additional guidance notes in red.]
To assist dentists we have produced the outline of a guide for their use. They should consider expanding
elements of it to provide greater explanation where this can be done. For example if there are specific plans
for the provision of NHS services these could be detailed. It is not necessary to submit the guide completed
by the practice for approval.
We recognize that it is unlikely that dentists are going to have registers available for public inspection and while
this remains the case “None Held” can be entered in this section. Under policies and procedures we have
listed the policies we would expect dental practices to have. Again if this is not the case, “Not held” can entered
in the relevant part. Any additional policies should also be listed.
Fees should be requested only where this is done in accordance with our guidance.
© BDA January 2009
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Information available from (Insert name of person (or practice) providing dental services under
contract to the NHS) under the Freedom of Information Act model publication scheme
Information covered by this scheme is only about the [general dental services OR personal dental services] we
provide under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006.
Information to be published
How the information can be obtained (eg
hard copy, website)
Cost
Class1 - Who we are and what we do
YourSmile dental care
91 Ashby Road
Loughborough
Leicestershire
LE11 3YG
hard copy, website
‘No charge
hard copy, website
‘No charge
hard copy, website
‘No charge
hard copy, website
‘No charge
We provide general dental services within the
NHS Denplan and Privately
Who’s who in the practice
Please refer to the practice leaflet or the
relevant parts of this web site for the dentists
providing dental care
Contact details for the practice
These details are available in our patient
information leaflet, which can be obtained from
reception’or the relevant parts of this web site
for the dentists providing dental care
Opening hours
These details are available in our patient
information leaflet, which can be obtained from
reception’
Staffing structure
This information is not held
Class 2 – What we spend and how we spend it (Financial information relating
to projected and actual income and expenditure, procurement, contracts and
financial audit) Current and previous financial year as a minimum
Total final cost to the PCT/LHB/HPSS of our contracted services
hard copy
Information on NHS funding and contract targets is available from the practice owner J F
Wanstall
© BDA January 2009
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Class 3 – What our priorities are and how we are doing (Strategies and plans,
performance indicators, audits, inspections and reviews) Current and previous
year as a minimum
Plans for the development and provision of NHS services
These details are available in our patient information leaflet, which can be obtained from
reception’
hard copy
Practice Inspection
The date and conclusions of our last practice inspection are available by asking Dr
Wanstall
hard copy
Class 4 – How we make decisions (Decision making processes and records of
decisions) Current and previous year as a minimum
Records of decisions made in the practice/firm affecting the provision of
NHS services
As a small business formal records of management decisions are not normally recorded,
however, any changes in the provision of NHS services would be incorporated into an
updated patient information leaflet, our current patient information leaflet, which can be
obtained from reception. We may also notify patients by notices in our reception area.
Class 5 – Our policies and procedures (Current written protocols, policies and
procedures for delivering our services and responsibilities) Current information
only (delete any policies not actually held)
Policies and procedures about customer service These details are available in
our patient information leaflet, which can be obtained from reception’ other policies can
be obtained by applying to the practice manager in writing.
hard copy
Equality and diversity policy
A copy of this policy can be obtained by applying to the practice manager in writing
hard copy
Health and safety policy
A copy of this policy can be obtained by applying to the practice manager in writing
hard copy
Complaints procedures (including those covering requests for information
and operating the publication scheme)
A copy of this policy can be obtained from reception
Records management policies (records retention, destruction and archive)
A copy of our Records management policies obtained by applying to the practice
manager in writing
Confidentiality and data protection policies
A copy of our confidentiality policy obtained by applying to the practice manager in
writing
Policies and procedures for handling requests for information
This information is contained within this document
hard copy
Class 6 – Lists and Registers Currently maintained lists and registers only
Any publicly available register or list
This information is not held
hard copy
hard copy
hard copy, website
Class 7 – The services we offer (Information about the services we offer,
including leaflets, guidance and newsletters produced for the public and
businesses) Current information only
The services provided under contract to the NHS
These details are available in our patient information leaflet, which can be obtained from
reception
Charges for services
These details are available in our patient information leaflet on this web site and on the
posters in the waiting areas
Information leaflets
These details are available in our patient information leaflet, which can be obtained from
reception
© BDA January 2009
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