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The public sector will need to be more accountable

The Freedom of Information Act 2000 comes into full effect in five months' time on January 1 2005. Yet many marketers are totally oblivious to this or are simply unprepared for the impact this will have on marketing and communication practice, warns legal and brand guru Ardi Kolah.

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The Freedom of Information Act 2000 affects anyone working within marketing and communications within public authorities such as libraries, government departments, universities, schools, further education, museums, professional institutes, etc.

It's intended to promote a culture of openness and accountability among public bodies by providing people with rights of access to the information held by them. According to the Information Commissioner's website, it's expected that these rights will 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.

As nice as this sounds, FOA 2000 could have created a Frankenstein monster where public authorities are forced to employ an army of people whose job is to respond to requests for information from the public where they a have a legal right to know what's going on behind closed doors. Such schemes already exist in other jurisdictions such as Canada and Ireland.

Scope

The Freedom of Information Act sits alongside the Data Protection Act 1998 and the forthcoming Environmental Information Regulations as the principal mechanism for access to information held by English, Welsh and Northern Irish public bodies.

Marketers in Scotland, which is a separate legal jurisdiction, are subject to the Freedom of Information (Scotland) Act 2002, which is overseen by the Office of the Scottish Information Commissioner.

The rights conferred by the FOA 2000 may be exercised by anyone, including journalists, political parties, lobby groups and commercial organisations (this includes your competitors).

But it doesn't stop there.

The act incredibly extends to those living outside the UK and even non-UK citizens. From now on, we need to behave as if we're an open book and of course other organisations in different jurisdictions where their legislative regimes are less onerous don't have the same legal obligations placed on them. This is bound to create an uneven playing field from a competitive perspective.

Rights of citizens

Anyone wishing to find out information that is held about themselves will still need to make an application under the existing Data Protection Act 1998 -- so no change there.

However, from January 1 2005, anyone in the world will have the right to make a written request seeking specific information from a public authority, and the public authority must follow the provisions of the FOA 2000 in dealing with that request.

Requests to see the publication scheme can be sent via email, post, telephone, fax or in writing -- which is possibly the biggest headache of all because in an ideal world there would need to be a central point for the handling and management of these requests. And of course public bodies don't behave like that do they?

Requests to have a copy of information must be in writing (post, fax or email) and must state the name and address of the person applying for the information and the nature of that information.

Compliance

Many marketers working within central and local Government, police, health service and education already have a publication scheme but by 1 January 2005 every public authority will need to have one.

Publication scheme

The publication scheme, which must be approved by the Information Commissioner, must provide details of the information the public body makes available as a matter of routine.

Many bodies have appointed individuals whose function is to make sure that the FOA 2000 is complied with -- so there's a significant cost implication attached to this new legislation.

The act gives a general right of access to "recorded" information similar to that in the Data Protection Act 1988. Information outside of the approved publication scheme must also be made available after 1 January 2005.

This begs the question -- what should be part of the publication scheme? This includes all documents that you produce in marketing and communications in effect -- from brochures, literature, news releases, posters, advertising, DM, etc.

But it can equally apply to the minutes of the marketing and communication meetings too.

Confidential or commercially sensitive information

The intention of the FOA 2000 isn't to make confidential or sensitive information freely available but clearly this will be a fine judgment call for many organisations, such as the Ministry of Defence that will need to balance the competing interests of the right of public access against the need for national security. Information that doesn't need to be disclosed is classified as "exempt" from the FOA 2000.

Best practice

Liverpool University has created a template for the categories of information that can form part of a publication scheme and many bodies have set up a Freedom of Information and Records Management Working Group in order to discuss what records will need to be kept and what material can be destroyed.

Some bodies even have a training programme for those who have to take minutes at meetings as this documentation will now fall within the FOA 2000.

Implications for marketing and communication

These new legal obligations will impact the way in which all marketing and communication should be accessed and stored in order to comply with information requests.

What many marketers don't realise is that the right of access applies to information irrespective of when it was created or how long it's been held.

So the disclosure provisions under the FOA 2000 also covers those dusty yellowing files lurking in the basement that haven't seen the light of day for years.

It's not impossible to imagine the scenario where news cuttings on stories going back 10, 20 or 30 years could provide some interesting leads for investigative journalists who may start to request files or information today in the hope of uncovering new facts to an old story.

Museums too have substantial archives, so requests from around the world could keep them busy for years - let alone the costs that they will incur for keeping within the law.

And under the FOA 2000 you've only got 20 working days in order to comply (shorter than the Data Protection Act 1998 which gives you 30 days).

Marketers can charge for the access to this information but this is limited to a maximum of £60 or 10% of the maximum of effort required to comply.

If the maximum effort required is therefore over £600 then it's likely (although not certain) that the information request will be deemed to be unreasonable and marketers won't be under a duty to comply.

This has yet to be tested in the courts and there will be enormous difficulties in determining the cost of effort required to respond to such requests.

Finally, the public body is under scrutiny in the exercise of its rights to withhold information in the public interest -- and anyone who is turned down has a right to know the reasons for this.

This all adds up to more powers for individuals and a greater degree of openness required from marketers.

Of course the FOA 2000 could have the dramatic opposite effect where marketers don't write down or record matters for fear of public disclosure.

Ardi Kolah appears on the Chartered Institute of Marketing's global top 50 list of leading marketing thinkers. He is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00). Read the review of the book on Brand Republic and order your copy online here.

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