Whilst the Freedom of Information Act provides for the right of access to information held, it also affords a number of exemptions from this right in order to permit public authorities to withhold some or all of the information requested where a justifiable reason exists. The exemptions fall into two categories:
- Absolute exemptions
- Qualified exemptions
This means there is no right of access under the FOI Act. However in some cases this is due to the right of access to this information being governed by a different statute, for example Personal Information or Environmental Information. The absolute exemptions that are most likely to apply to the Council are:
- Information that is reasonably accessible by another means, i.e. through the Council’s Publication Scheme or via existing access regimes (Section 21)
- Court records (Section 32)
- Personal information relating to the person making the request. Such requests will continue to be dealt with under the Data Protection Act 1998 (Section 40(1))
- Personal information about a third party where disclosure of that information would contravene the data protection principles contained in the Data Protection Act1998 ( Section 40(2))
- Information provided in confidence – this exemption only applies to information where disclosure would result in an actionable breach of confidence (Section 41)
- Information that is prohibited from disclosure by law (Section 44)
This means that consideration needs to be given whether to disclose or withhold information. The decision is qualified with reference to the Public Interest Test (see below). When withholding information reasons must be given to the requester as to why this information is being withheld. The reasons must be set out against the Public Interest Test.
The qualified exemptions most likely to apply to the Council are:
- Information intended for future publication (Section 22)
- Investigations/proceedings conducted by public authorities (Section 30)
- Law enforcement (Section 31)
- Prejudice to the effective conduct of public affairs (Section 36)
- Health and Safety (Section 38)
- Environmental Information (Section 39)
- Personal information relating to a third party (Section 40) – save as mentioned above
- Legal professional privilege (Section 42)
- Commercial interest (Section 43)
A full list of the exemptions under the Act is available from the Information Commissioner’s website.
The public interest test
The public interest test requires that information should be withheld under an exemption if, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
- Where the balance is seen as equal the information must be released.
In all cases, the decision to release or withhold will be a matter of judgement at the time of the request.
- The decisions should be recorded, documenting the reasons on both sides as objectively as possible, to make the decision and to be able to account for reasons.
Some points to consider when assessing the public interest:
- Factors In Favour Of Disclosure
- Whether it would promote accessibility to information, promoting
transparency and accountability.
- Whether a document would disclose reasons for a decision made on behalf of the public and/or enable them to challenge these decisions.
- Whether disclosure would contribute to a public debate on a matter of public interest.
- Whether disclosure would enhance scrutiny and thereby improve
accountability and participation.
- Whether disclosure would bring to light important matters of public health and safety.
This list is not exhaustive, and in all cases proper consideration should be given over whether to disclose or withhold information. The public interest does not include the protection of individuals, in their capacity as officers of the Council, from embarrassment.
Factors against disclosure
Those points covered by the exemptions in the FOI.
There may be procedural reasons for refusing a request for information e.g. if the request is vexatious or repeated, or if the cost of complying with the request would exceed the cost limit.
- It is possible for more than one exemption to be cited as reason for nondisclosure
of information to the public.
- All responses to the public must state clearly, in writing, what exemptions have been applied, and in the case of qualified exemptions must give reasons for their application.
- An exemption can apply to all or only some of the information in a document.
- An exemption that may have applied at the time of creation of a record or document may no longer apply when the record is the subject of a request for information.
Advice regarding exemptions can be sought at any time from the Customer Relations or legal services. Further guidance on the application of exemptions and the public interest test is available from the Information Commissioner’s website.