D14.3 Interaction with the Freedom of Information Act 1982

Date Published

In practice the FOI Act has no practical application with respect to the file of a design application, or the file of a registered design.

Specifically, the FOI Act does not apply with respect to any document that is open to public access by another enactment [s.12, FOI]. S.60 of the Designs Act provides a regime for the public access of all documents on the file of a Design.

Note that s.31 and the Third Schedule to the FOI Act formally recognises the prohibition against publication provided by sections 61, 108 and 109 of the Designs Act.

For these reasons, a request under the FOI Act for documents of the file of a design cannot be processed under the FOI Act.

Where a person files an FOI request for documents on a design file, the FOI unit will (where practical)

  • contact the requestor by phone,
  • explain that the documents can only be provided under s.61 of the Designs Act
  • indicate which documents if any are available;
  • indicate the likely cost under the Designs Act of supplying copies of those documents.

Where the requestor is well known to the Office, the FOI unit may annotate the request on the basis of the advice received over the phone. The request will then be passed on for processing in accordance with s.60 of the Designs Act and the associated fees. Otherwise the requestor will be invited to submit a new request, it being in accordance with s.60.

Section 12(1)(b) and (c) of the FOI Act provides:

Part not to apply to certain documents

(1) A person is not entitled to obtain access under this Part to:

(a) ...; or

(b) a document that is open to public access, as part of a public register or otherwise, in accordance with another enactment, where that access is subject to a fee or other charge; or

(ba) ...; or

(c) a document that is available for purchase by the public in accordance with arrangements made by an agency.

Section 38 of the FOI Act provides:

Documents to which secrecy provisions of enactments apply

(1) Subject to subsection (1A), a document is an exempt document if:

(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and

(b) either:

(i) that provision is specified in Schedule 3; or

(ii) ...

(1A) ...

(2) ...

(3) ...

Schedule 3 to the FOI Act specifies paragraph 61(1)(a) and sections 108 and 109 of the Designs Act.

It should be noted that while the Exempt status of s.38 of the FOI Act does not apply in relation to documents in so far as they contain personal information about a person (see s.38(2) of the FOI Act.) However as a practical matter this is extremely unlikely to apply with respect to a Designs file.