Recommended drafting for FOIA provision is as follows:
26.10 Freedom of Information
(a) The Contractor acknowledges that the Authority is subject to the requirements of the FOIA and the Environmental Information Regulations and shall facilitate the Authority's compliance with its Information disclosure requirements pursuant to the same in the manner provided for in paragraphs (b) to (g) (inclusive) below.
(b) Where the Authority receives a Request for Information in relation to Information that the Contractor is holding on its behalf510 and which the Authority does not hold itself511 the Authority shall refer to the Contractor such Request for Information that it receives as soon as practicable and in any event within [five] Business Days of receiving a Request for Information and the Contractor shall:
(i) provide the Authority with a copy of all such Information in the form that the Authority requires as soon as practicable and in any event within [ten] Business Days (or such other period as the Authority acting reasonably may specify) of the Authority's request; and
(ii) provide all necessary assistance as reasonably requested by the Authority in connection with any such Information, to enable the Authority to respond to a Request for Information within the time for compliance set out in Section 10 of the FOIA or Regulation 5 of the Environmental Information Regulations.
(c) Following notification under Clause 26.10(b), and up until such time as the Contractor has provided the Authority with all the Information specified in Clause 26.10(b)(i), the Contractor may make representations to the Authority as to whether or not or on what basis Information requested should be disclosed, and whether further information should reasonably be provided in order to identify and locate the information requested, provided always that the Authority shall be responsible for determining at its absolute discretion:
(i) whether Information is exempt from disclosure under the FOIA and the Environmental Information Regulations; and
(ii) whether Information is to be disclosed in response to a Request for Information and
in no event shall the Contractor respond directly, or allow its sub-contractors to respond directly, to a Request for Information unless expressly authorised to do so by the Authority.
(d) The Contractor shall ensure that all Information held on behalf of the Authority is retained for disclosure for at least [ ] years (from the date it is acquired) and shall permit the Authority to inspect such Information as requested from time to time.
(e) The Contractor shall transfer to the Authority any Request for Information received by the Contractor as soon as practicable and in any event within 2 Business Days of receiving it.
(f) The Contractor acknowledges that any lists provided by him listing or outlining Confidential Information, are of indicative value only and that the Authority may nevertheless be obliged to disclose Confidential Information in accordance with the requirements of the FOIA and the Environmental Information Regulations.
(g) In the event of a request from the Authority pursuant to clause 26.10(b) above, the Contractor shall as soon as practicable, and in any event within [5] Business Days of receipt of such request, inform the Authority of the Contractor's estimated costs of complying with the request to the extent these would be recoverable if incurred by the Authority under Section 12(1)512 of the FOIA and the Fees Regulations. Where such costs (either on their own or in conjunction with the Authority's own such costs in respect of such Request for Information) will exceed the appropriate limit referred to in Section 12(1) of the FOIA and as set out in the Fees Regulations (the "Appropriate Limit") the Authority shall inform the Contractor in writing whether or not it still requires the Contractor to comply with the request and where it does require the Contractor to comply with the request the 10 Business Days period for compliance shall be extended by such number of additional days for compliance as the Authority is entitled to under Section 10 of the FOIA. In such case, the Authority shall notify the Contractor of such additional days as soon as practicable after becoming aware of them and shall reimburse the Contractor for such costs as the Contractor incurs in complying with the request to the extent it is itself entitled to reimbursement of such costs in accordance with its own FOIA policy from time to time.513 514
(h) The Contractor acknowledges that (notwithstanding the provisions of Clause 26) the Authority may, acting in accordance with the Department of Constitutional Affairs' Code of Practice on the Discharge of Functions of Public Authorities under Part I of the Freedom of Information Act 2000 (the "Code"), be obliged under the FOIA, or the Environmental Information Regulations to disclose Information concerning the Contractor or the Project:
(i) in certain circumstances without consulting with the Contractor; or
(ii) following consultation with the Contractor and having taken their views into account,
provided always that where (i) above applies the Authority shall, in accordance with the recommendations of the Code, draw this to the attention of the Contractor prior to any disclosure.
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510 This should enable the Authority to comply with its obligations under the FOIA. If the Authority wished to go beyond this, for instance by referring in addition to other information or to information held by first tier subcontractors on behalf of the Contractor, this can be specified - but this may have cost/vfm implications.
511 Authorities may wish to retain responsibility where they themselves already have the relevant information.
512 If the Authority intends also to charge in respect of copying costs etc under section 8 FOIA and paragraph 6 of the Fees Regulations and wishes to pass through the benefit of such charging to the Contractor, the Authority may consider extending these provisions to accommodate this. The Fees Regulations currently allows a rate of £25 per hour to be taken into account in determining whether the relevant threshold for costs under paragraph 4 of the Fees Regulations has been reached.
513 It is up to the parties to decide whether costs associated with any future charge in the Authority's FOIA cost recovery policy should go through the Change procedure.
514 If the Environmental Information Regulations are relevant to the project, the parties may include broadly equivalent provisions in the Contact dealing with costs and based upon the Authority's policy towards reimbursement of such costs under Section 8 of the Environmental Information Regulations.