The Freedom of Information Act creates a general right of access
to information held by public bodies from 1 January 2005, but also
sets out 23 exemptions where that right will either not be allowed
or will be qualified.
The following notes constitute general
guidance and should not be taken as legal
advice.
Apart from vexatious or repeated requests, to which the
Council need not respond, there will be two general
categories of exemption:
- where, even though an exemption exists, the
Council will have a duty to consider whether disclosure
is required in the public interest
- where there will be no duty to consider the public
interest.
The Public Interest Test
The 'public interest test' will require the Council to determine
whether the public interest in withholding the exempt information
outweighs the public interest in releasing it, by considering the
circumstances of each particular case and the exemption that covers
the information. The balance will lie in favour of disclosure,
because information may only be withheld if the public interest in
withholding it is greater than the public interest in releasing it,
for example where disclosure of institutional information would
harm a police investigation.
Guidance as to how exemptions might apply in particular
circumstances will be developed by the office of the Information
Commissioner in time and in the light of case by case
experience.
Some detailed guidance is currently available on the
Department for Constitutional Affairs web site at http://www.foi.gov.uk/guidance/index.htm
and the Information Commissioner's web site at http://www.ico.gov.uk/eventual.aspx?id=33
Exemptions where the public interest test applies
Exemptions for which the Council will have a duty to
consider whether disclosure is required in the public interest are
listed below. Where the Council considers that the public interest
in withholding the information requested outweighs the public
interest in releasing it, the Council will be obliged
to inform the applicant of its reasons, unless providing the
reasoning would effectively mean releasing the exempt
information.
| s22 |
Information intended for future
publication |
| s24 |
National security (other than information supplied by
or relating to named security organisations, where the duty to
consider disclosure in the public interest does not
arise) |
| s26 |
Defence |
| s27 |
International relations |
| s28 |
Relations within the United Kingdom |
| s29 |
The economy |
| s30 |
Investigations and proceedings conducted by public
authorities |
| s31 |
Law enforcement |
| s33 |
Audit functions |
| s35 |
Formulation of government policy, and so
on |
| s36 |
Prejudice to effective conduct of public affairs
(except information held by the House of Commons or the House of
Lords) |
| s37 |
Communications with Her Majesty, etc. and
honours |
| s38 |
Health and safety |
| s39 |
Environmental information |
| s40 |
Personal information 1 |
| s42 |
Legal professional privilege |
| s43 |
Commercial interests |
Absolute exemptions are the exemptions for which
it will not be necessary to go on to consider
disclosure in the public interest.
These are exemptions where the Council will be obliged
to consider whether particular information falls within a
particular category (or class) of information, such as:
If information falls into the category described in one of
these exemptions, the Councilwill not be required to
release it. There is no requirement to consider whether releasing
the particular information requested would prejudice a particular
activity or interest.
These are exemptions where the institution concerned must
consider whether disclosure of particular information would, or
would be likely to, prejudice:
The information therefore will only become exempt if
disclosing it would, or would be likely to, prejudice either of
these factors.
1 If the Council believes that disclosure would not
breach any of the data protection principles, but the individual
who is the subject of the information has properly served notice
under s.10 DPA 1998 that disclosure would cause unwarranted
substantial damage or distress, or the individual who is the
subject of the information would not have a right to know about it
or a right of access to it under the DPA 1998, there will be no
absolute exemption, and the institution will be obliged to consider
the public interest in deciding whether to release the
information
2 Applies only to information held by House of
Commons or House of Lords
3 There is an absolute exemption from the provisions
of the FoIA if an applicant making a request for information under
the FoIA is the subject of the information requested and they
already have the right of 'subject access' under the DPA 1998.
There is also an exemption from the provisions of the FoIA if the
information requested under the FoIA concerns a third party and
disclosure by the institution would breach one of the Data
Protection Principles
Page last updated 25th
February 2005
