Chapters: 01 | 02 | 03 | 04 | 05 | annex A
5.1 In practical terms, the first stage in reaching a decision to rely on an exemption will usually be a decision that the right to have information communicated (under section 1(1)(b)) is to some extent qualified. Where the information requested falls within the terms of an exemption, and (where appropriate) the balance of the public interest comes down in favour of not disclosing it, the public authority will not then be obliged under the Act to disclose it (there may or may not be further cause to consider the possibility of disclosure separately from the Act). The public authority may also need to consider the question as to whether or not to confirm to the applicant (under section 1(1)(a)) that the information he/she has requested is in fact held.
5.2 This guidance considers in the main the first step - the decision whether or not to disclose the information. All but one of the exemptions (section 21 - information accessible to applicant by other means) also raise the possibility of qualifying the right to be told whether or not the information is held. In many cases, although the information is not disclosed, the duty to confirm whether the information is held may be complied with straightforwardly. But there remain circumstances in which even to confirm - or deny - that information is held is not appropriate. To confirm whether information is or is not held might itself be prejudicial, for example, to a given consideration, and contrary to the public interest.
5.3 A decision to rely on an exemption from section 1(1)(a) needs to be taken in a similar manner to the substantive decision to refuse to disclose the information - that is to say, on the basis of considering whether the exemption is engaged and (where relevant) the balance of the public interest both for and against complying with the section. But it is a distinct decision from asserting an exemption from the right under section 1(1)(b) and needs to be taken entirely in its own terms. It should be noted that, if it is determined that information is exempt from section 1(1)(a), it will not be necessary to claim the exemption from the duty to provide the information under section 1(1)(b).
5.4 A decision to refuse to disclose extremely sensitive information on national security or defence grounds, for example, may be wholly compatible with confirming that information is indeed held. For example, it may be obvious and straightforward to confirm that intelligence is held about a given security threat, but impossible to disclose what it is. On the other hand to confirm the existence - or the non-existence - of certain information may itself be highly revelatory (for example for a law enforcement authority to confirm that it holds no information about a particular activity might reveal to those involved that their involvement has not been detected).
5.5 Where an authority reaches the conclusion that it has no obligation under the Act to state whether it holds the information requested, the usual manner of doing so is to say that it will neither confirm nor deny whether it holds the information.
5.6 If an authority declines in any respect to comply with a request for information in reliance on an exemption its response to the applicant must meet the requirements of section 17 of the Act. This requires that the authority gives the applicant a notice which:
5.7 If exemption is claimed from the duty to confirm or deny whether the information held (under section 1(1)(a)) then it will not be necessary also to claim exemption from the duty to communicate the information to the applicant (under section 1(1)(b)).
5.8 This requirement reinforces the importance of the quality of the process of deciding to rely on an exemption. Not only may a failure to analyse and articulate a decision to claim any exemption put at risk the prospect of successfully defending that decision against challenge, it may also constitute a failure in its own right to comply with the requirements of section 17.
5.9 There is a narrow, but important, limitation on the duty to give reasons under section 17. Section 17(4) provides that it is not necessary to say why an exemption applies or why the public interest balance comes down against disclosure if to do so would itself involve the disclosure of exempt information. But this exemption from the duty to explain must be considered with great care. Firstly, it must be fully justifiable in its own right as falling within the terms of an exemption. And secondly, even where section 17(4) applies, that does not detract from the need to be able to defend a non-disclosure decision fully should it be challenged by the Commissioner.
5.10 Some of the exemptions make provision for certification of one type or another to form part of the process of relying on an exemption. For example:
5.11 In these cases, the certificates are never in themselves necessary prerequisites to relying on the exemption or to taking the decision to refuse disclosure. But they can form a very important part of the subsequent process of defending such a decision if necessary. They are considered further in the relevant chapters of the guidance in question.
5.12 General provision is also made by section 53 for a Minister to certify that an exemption applies. Such a certificate can only be prepared however in response to enforcement action by the Commissioner, and is considered further below in that context.
5.13 The Act empowers the Secretary of State to issue a Code of Practice setting out practices which public authorities should follow in discharge of their duties under the Act. The Code may include such matters as what advice and assistance ought to be offered to applicants and the procedures for dealing with complaints. The Secretary of State is also given the power to issue a Code of Practice in relation to the keeping, management and destruction of records.
5.14 Under the Code of Practice on the discharge of public authorities functions (section 45 code) public authorisation duties, departments are required to establish internal procedures for the review of requests that are refused. If an applicant wishes to challenge a refusal to confirm whether or not the information is held, or to disclose information, he or she should in the first instance apply to the department for an independent review under the department's internal review process (IRP). Should the requester make an application to the Commissioner before applying to the IRP, the Commissioner will not consider the application until the IRP has been exhausted. This process must be explained when a request for information is refused.
5.15 The official responsible for conducting the internal review will need to assess whether the correct process has been followed as well as whether the decision to rely on the exemption was appropriate. If the IRP considers that the decisions have been properly made, it should then consider whether the reasons given to the applicant for the refusal of the request were as full as they could have been in the circumstances. If the decision to withhold information is upheld, the applicant must be told that he or she can submit a complaint to the Information Commissioner.
5.16 Overall supervision of the Act and the Codes of Practice falls to the Information Commissioner. In any access to information regime there is scope for disagreement between the applicant and a public authority on the outcome of a request. These disagreements may be about whether an exemption has been properly claimed, the fees levied or the time taken by the authority to comply. The Information Commissioner is, in the first instance the formal arbiter in these disputes.
5.17 The Commissioner may either affirm a decision of the public authority or require further action to be taken to comply with the Act. Any such requirement will be set out in a Decision Notice or an Enforcement Notice. If a public authority fails to comply with a Notice, the Commissioner may certify failure to the High Court (or the Court of Session in Scotland) and the court will deal with the authority as if it had committed a contempt of court. But both the complainant and the public authority also have a right to appeal against the Commissioner's decisions. The appeal is to the Information Tribunal and thereafter, on a point of law only, to the courts.
5.18 Section 53 makes provision, as an alternative to pursuing the matter through these channels, for a Cabinet-ranking minister to certify that he has formed a reasonable opinion that, contrary to the view of the Information Commissioner, the balance of the public interest in a qualified exemption comes down in favour of non-disclosure.
5.19 This power does not arise until the Commissioner has begun to take formal enforcement procedure measures, and it is a step which will always be required to be taken only after careful consideration of its wider implications. In particular: