Chapters: 01 | 02 | 03 | 04 | 05 | annex A
3.1 The Table at Annex A lists all the exemptions, indicating what form they take, including the time (from the creation of the record of the information to which they relate) for which they are available. It will be necessary to pay careful attention to the nature and properties of an exemption when considering its application.
3.2 There are many circumstances in which the Act provides for the refusal of a request for information. Some of these may be regarded as procedural. For example, section 14 provides for the refusal of vexatious or repeated requests. And section 12 makes provision for a request to be refused on the grounds of cost. This guidance does not address these procedural reasons for refusing a request. It focuses instead on the substantive boundaries of the right of access.
3.3 All substantive boundaries of the right of access under the Act are described in this guidance as 'exemptions'. These are varied in their form and in their effect, and it is by no means the case that where an exemption applies a public authority should assume that information has an inherent quality of non-disclosability. For example, some of the exemptions take information to which they apply outside the scope of the Act altogether - but only to confirm that a discrete access regime applies to that information (see for example section 39 dealing with environmental information). Others apply only to information to the extent that it is held by particular bodies - but it may be disclosable if held by other bodies. Some work by making the Act subject to legal prohibitions on disclosure set out in other legislation; some apply to information of a particular description; others focus on the effects of disclosure.
3.4 Overlaying all these different forms of exemption is one very important distinction. Some exemptions are "absolute", that is, if the exemption applies then there is no obligation under the Act to consider the request for information any further (although there may be scope, or obligations, for other reasons outside the Act to do so). Other exemptions are subject to an assessment of the balance of the public interest both for and against disclosure; these exemptions are often referred to as "qualified", because they do not justify withholding information unless, on a proper assessment, the balance of the public interest is against disclosure.
3.5 The absolute exemptions are exhaustively listed in section 2(3) and identified in the table at Annex A. They include some exemptions designed to place the disclosure of information entirely within the ambit of separate access regimes (for example, the Data Protection Act 1998, or the procedures for disclosing court records) or subject to the control of a separate body (for example Parliament or the courts). Some make the FOI rights of access subject to existing legal prohibitions on disclosure (for example under the law of confidence or under statute, or by reason of European law).
3.6 But most of the exemptions are subject to a test of the balance of public interest as set out in section 2(1)(b) and 2(2)(b) of the Act. This means that it is not sufficient to establish that the information falls within the terms of the exemption. It is also necessary to consider whether the public interest, in all of the relevant circumstances of the particular case, requires the information to be released or withheld. One of the primary purposes of this guidance is to help to identify some of the public interest considerations relevant to this assessment.
3.7 Most of the exemptions are time limited. Part VI of the Act makes provision for many of the exemptions to expire in relation to information held in certain records, often when those records become 30 years old.
3.8 Because the exemptions take many different forms (sometimes focusing on the content of the information, sometimes on who is handling it, and sometimes on the effect of its disclosure), and because the interests they protect are usually broadly defined, there is considerable potential for overlap.
In a very few places, the Act makes specific provision for the mutual exclusivity of exemptions - for example:
All these interrelationships are explained in the individual chapters of this guidance. In these cases it is impossible to rely on both exemptions at the same time. Where it is not clear that one or the other exemption applies, i.e. there is room for debate, at the margins of the definitions used, as to which would be the more suitable, the exemptions may be relied on in the alternative.
Wherever two exemptions are in relationship of express mutual exclusivity, the individual chapters of the guidance make this clear.
In some cases, although no express provision is made, there will be a clear implication of mutual exclusivity between exemptions. This is particularly noticeable where, for example, the structure of the Act makes it unlawful to disclose certain information, but a qualified exemption could also apply to that information. Clearly, if there is no possibility of lawful disclosure of the information, it is not appropriate to consider at large the public interest in disclosure. There also may be an implication of mutual exclusivity where the effect of an FOI Act exemption is to require a request to be considered under a separate access regime such as the Environmental Information Regulations.
Otherwise though, there is no reason why overlapping exemptions should not be applied simultaneously. The overlap of qualified exemptions will often indicate the relevance of several dimensions of the public interest which ought to be taken into account in considering whether to disclose the information. Care will of course have to be taken to ensure that each exemption relied on is satisfied in its own terms.
3.9 Several exemptions have the effect, rather than of providing a decision-making mechanism in their own right, of engaging substantial and distinct access regimes, and applying the rules of those regimes (complete with their exemption provisions) to the information in question. It is beyond the scope of this guidance to give a complete account of all of those regimes, but it does aim to give as clear a picture as possible, in considering the relevant exemptions, of the circumstances in which those regimes need to be addressed.
3.10 The most important of these regimes are those set up under, respectively, the Environmental Information Regulations 2004 and the Data Protection Act 1998; these are dealt with in sections 39 and 40 of the Act. Information falling within these exemptions are the subject of statutory access regimes in their own right. In each case the application and interpretation of those regimes is affected by the fact that both implement EU Directives.
3.11 The Guidance on Processing Requests considers the practicalities of dealing with requests for information which in whole or in part require decisions to be made in accordance with these distinct regimes. It also explains where further guidance specific to those regimes may be obtained.
3.12 Several exemptions turn on the effect, or likely effect, of the disclosure in question. They may, for example, provide that information is exempt if its disclosure would, or would be likely to, prejudice certain matters.
3.13 As noted above, in evaluating the effect of a disclosure, it will be necessary to consider the full context of that disclosure, and to make what is, in essence, a risk assessment. It should, in particular, be borne in mind that an authority may have very little control over information once it is disclosed, and that the effect on which the exemption turns may be achieved in a number of direct or indirect ways, including:
The assessment which needs to be made is, in all the circumstances, how likely the prejudicial effect is to happen, how much or how serious the prejudice might be, and how proximate to (or remote from) the disclosure the effect would be.
3.14 It is also, however, vital to consider to what extent the risk in question is one which is to any degree under the public authority's own control. If an authority could, itself, reasonably prevent or diminish the risk, or limit the effect, it will be expected to consider that as part of the disclosure decision. It may, for example, be able to put the disclosure in an explanatory context, or consult others who might be affected, or take straightforward preventative action. What may be reasonable will depend on the circumstances of the case.
3.15 Most of the exemptions turning on the effects of disclosure are qualified by reference to the balance of the public interest for and against disclosure. The likely effects of the disclosure will usually trigger the application of the exemption. It will then be necessary to consider the likelihood, nature and magnitude of the effect within the context of the public interest as whole. As a general rule, a more minor, remote or speculative risk will weigh lighter in the balance against the public interest in disclosure - but it should always be borne in mind that the interest prejudiced may itself be so fundamental or important that very little risk ought reasonably to be taken. Again, it is imperative that all relevant considerations be carefully weighed in the circumstances of each case.
3.16 As outlined at the outset, the FOI Act seeks to balance the right to know with the delivery of effective government. Section 2 therefore requires a public authority, in a case in which a qualified exemption applies, to consider whether, in all the circumstances of the case, the public interest in withholding the information sought outweighs the public interest in disclosure.
3.17 This requires weighing the public interest considerations in favour of release of the information and the public interest considerations in favour of protecting it from disclosure, and on balance, judging where the public interest lies. If the public interest in withholding the information outweighs the public interest in disclosure, it should be withheld. If the arguments are evenly balanced, then the outcome should be disclosure.
3.18 The starting point in considering the balance of the public interest is that there is a general public interest in disclosure. The existence of the FOI Act, and other access regimes, is testimony to that. In contrast, there is no general public interest in non-disclosure.
3.19 In the case of any particular qualified exemption, and the disclosure of any particular piece of information falling within it, there may well also be particular or special public interest considerations in favour of disclosure. For example, there may be a public interest in the transparency of particular process - law enforcement, say, or policy-making. These too need to be fully taken into account, and this guidance indicates in each case where they might lie.
3.20 But the right to know must be balanced against the need to facilitate effective government. Therefore, for each qualified exemption, and the disclosure of any particular piece of information falling within it, there may be particular public interest considerations in favour of refusing the request.
3.21 The terms of the exemptions in the Act give broad clues to what those particular public interest considerations might be (some, such as section 36, give more specific indications of the relevant public interest considerations likely to be engaged). It is not, however, sufficient simply to assert a public interest in non-disclosure; its relevance to the circumstances of an individual request, and the assessment of the balance which has been carried out, must be properly analysed and supported. The guidance sets out the types of public interest considerations that are likely to be relevant in the context of considering the use of each exemption.
3.22 A decision on the balance of the public interest not to disclose reached by public authorities is subject to challenge by applicants who may ask the Information Commissioner to review the decision to withhold information. Ultimately, this could also become a matter for the courts. The Act does not make Government the sole, or supreme, arbiter of the public interest. But the better the decision-making on the public interest, the better it will withstand such challenge.
3.23 The assessment of the balance of the public interest will change over time. This is so in two ways. The assessment of the public interest is a judgement in which fact, policy and law are all involved to some degree. It is inherently dynamic. The law and practice of the public interest balance will develop in decisions made within Government and by the Commissioner and the courts.
3.24 Furthermore, the balance of the public interest may shift as the information becomes older. In any case, section 36 may not be used when the information is more than 30 years old.
3.25 The balance of the public interest therefore needs to be reviewed afresh in response to renewed requests for the information. Hence judgements about disclosure are not about whether it should take place in a general sense but whether it is appropriate for it to happen at the particular time that a request is received.
3.26 The Act makes specific procedural provision for the handling of cases in which an assessment of the balance of the public interest falls to be made. Under section 10(1) of the Act, there is a general time limit of 20 working days for making a response to a request for information. But section 10(3) permits a Department to take an additional, though 'reasonable', period of time to reach its final decision in those cases where an exemption is engaged but it is qualified by consideration of the balance of the public interest. The Department must, however, tell the applicant within the 20-day period which exemption or exemptions it believes apply to the information requested, and give an estimate of the date by which the decision will have been made. It must comply with this estimate.