FOI exemptions
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 Ministry of Justice (link below) and the
Information Commissioner's website (link below).
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
Absolute exemptions are the exemptions for which
it will not be necessary to go on to consider
disclosure in the public interest.
| s21 |
Information accessible to applicant by other
means |
| s23 |
Information supplied by, or relating to, bodies dealing
with security matters |
| s32 |
Court records, and so on |
| s34 |
Parliamentary privilege |
| s36 |
Prejudice to effective conduct of public affairs
2 |
| s40 |
Personal information 3 |
| s41 |
Information provided in confidence |
| s44 |
Prohibitions on disclosure where a disclosure is
prohibited by an enactment or would constitute contempt of
court |
Whole category exemptions
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:
| s30 |
Information relating to investigations and proceedings
conducted by public authorities |
| s32 |
Court records |
| s35 |
Formulation of government policy |
If information falls into the category described in one of
these exemptions, the council will 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.
Prejudice test exemptions
These are exemptions where the institution concerned must
consider whether disclosure of particular information would, or
would be likely to, prejudice:
|
s27
|
The interests of the United Kingdom
abroad |
| s31 |
Law enforcement |
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 Freedom of Information Act if an applicant
making a request for information under the Act 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 Act if the information requested
concerns a third party and disclosure by the institution would
breach one of the Data Protection Principles