The Freedom of Information Act created 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 the Information Commissioner's website (see external links).
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.
|Information intended for future publication
|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)
|Relations within the United Kingdom
|Investigations and proceedings conducted by public authorities
|Formulation of government policy, and so on
|Prejudice to effective conduct of public affairs (except information held by the House of Commons or the House of Lords)
|Communications with Her Majesty, etc. and honours
|Health and safety
|Personal information 1
|Legal professional privilege
Absolute exemptions are the exemptions for which it will not be necessary to go on to consider disclosure in the public interest.
|Information accessible to applicant by other means
|Information supplied by, or relating to, bodies dealing with security matters
|Court records, and so on
|Prejudice to effective conduct of public affairs 2
|Personal information 3
|Information provided in confidence
|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:
|Information relating to investigations and proceedings conducted by public authorities
|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:
|The interests of the United Kingdom abroad
The information therefore will only become exempt if disclosing it would, or would be likely to, prejudice either of these factors.
- 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 data protection law 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 data protection law, there will be no absolute exemption, and the institution will be obliged to consider the public interest in deciding whether to release the information
- Applies only to information held by House of Commons or House of Lords
- 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 data protection. 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