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Section 27 - International Relations

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Chapter 03: When to use the exemption under section 27

3.1 The exemption under section 27 exists to protect the United Kingdom's international relations, its interests abroad and the United Kingdom's ability to protect and promote those interests. The United Kingdom's interests abroad and thus the subject matter of its international relations cover a wide and changing range of matters, including for example trade, defence, environment, human rights and the fight against terrorism and international crime. The specific 'interests' that the United Kingdom pursues in its relations with other states will vary over time and so this chapter does not attempt to give a comprehensive definition. Furthermore, the way in which the United Kingdom's interests are protected and promoted and international relations conducted also takes a wide variety of forms, ranging from formal diplomatic exchanges to informal conversations. If in doubt as to whether a disclosure of information would prejudice any of the matters mentioned in section 27(1), or be confidential within the terms of section 27(2), consult the government department concerned, usually the FCO.

When releasing the information would prejudice the United Kingdom's international relations - the exemption under section 27(1)

3.2 The likely impact of disclosure will need to be assessed in each case. In particular consideration should be given to whether the information concerned is (and remains) sensitive and what kind of effect its disclosure would, or would be likely to have, on the United Kingdom's international relations, with third party states or organisations as well as those most immediately concerned, or on the United Kingdom's interests abroad or its ability to protect and promote them. There are many possible questions to consider: for example:

What sort of reaction is disclosure likely to provoke in other states, international organisations and courts?
If a negative reaction is anticipated, what will the implications of that reaction be?
How is it likely to impact on the United Kingdoms' ability to 'do business' in and with those states etc?

It will be necessary to consider the likely implications not only for the state and subject matter most immediately concerned, but also for other aspects of the United Kingdom's relations with the state concerned and its relations with other states. Even where disclosure is unlikely to provoke a negative reaction in other states etc, would it nonetheless be likely to prejudice United Kingdom interests abroad or the United Kingdom's ability to protect and promote those interests (for example, by alerting others to United Kingdom intentions or negotiating positions)? In each case where likely prejudice to the United Kingdom's international relations is identified, the form that prejudice is likely to take will need to be identified.

3.3 Other points to take into account include:

Security classification of the information. The fact that a document carries a security classification does not necessarily mean the exemption applies, though it may be an indication that use of the exemption should be considered. The protective marking may relate to matters other than international relations (for example national security or defence), or it may no longer be justified due to the passage of time or events. Additionally, the security classification may not be relevant to the entire contents of the document and may simply reflect the highest classification of some of the information in the document at the time of its creation. You should consider each request on its merits and therefore assess the specific information that has been requested and any prejudice associated with its disclosure to establish whether use of the exemption is appropriate.

The source of the information. This will be particularly relevant for confidential information obtained from another state or from an international organisation or international court.

Other information already in the public domain. Individual requests for information must be considered on their merits but you should take account of what is already in the public domain when assessing prejudice to international relations. The fact that similar or related information is already in the public domain may reduce or negate any potential prejudice (for example where the state concerned has itself put the information in the public domain. But care needs to be taken where the information is put into the public domain by a non-official source in which case disclosure by the United Kingdom could provide confirmation of the veracity of the information). But on the other hand in some circumstances it could give rise to prejudice that would not otherwise have existed (for example where reading the disclosed information alongside information already in the public domain allows deductions to be made that could themselves be prejudicial). In the latter case, it will be particularly important to identify the specific prejudice that disclosure of the information would, or would be likely to, cause.

The timing of a request. The sensitivity of information will often be dependent on the timing of a request and the age of the information. For example, while disclosing information about the United Kingdom's negotiating position at an international conference might be prejudicial before the conference is concluded, concern about disclosing some or all of the information may diminish or disappear with the passage of time. Similarly, potentially prejudicial comments about the policies of a foreign government may diminish in sensitivity after a change of government.

3.4 Officials should not focus exclusively on whether the information would be likely to prejudice the United Kingdom's relations with the state concerned in the area related to the information (e.g. whether disclosure of sensitive trade information provided by the state would be likely to prejudice the United Kingdom's trade relations with that state). They should also consider whether the information would be likely to prejudice relations with that state in another aspect of those relations (e.g. whether disclosure of sensitive trade information might make that state reluctant to share sensitive environmental information with the United Kingdom or less likely to vote for the United Kingdom in an election to an international body). Similarly, disclosure of information relating most immediately to one state might, if it became known to them, prejudice other states' willingness to provide information to the United Kingdom (for example, if details of discussions on defence matters with state A were disclosed, this might make state B less willing to hold similar discussions with the United Kingdom) This should all be considered before a decision is made as to whether prejudice might be caused by disclosure.

Confidential information obtained from another state, an international organisation or international court - the exemption under section 27(2)

3.5 Confidential information received from another state, an international organisation or an international court is exempt under s 27(2). The exemption applies as so long as the terms on which the information was obtained require it to be held in confidence or while the circumstances in which it was obtained make it reasonable for the state, organisation or court to expect that it will be so held. In assessing whether this part of the exemption applies, the following factors should be borne in mind:

On what terms was the information supplied? For example, was the information supplied under arrangements containing either a requirement to preserve its confidentiality or consent to its disclosure? In the absence of any express provision, should consent to disclosure or a requirement for confidentiality be implied? For example, an implied confidentiality requirement is likely to apply to the content of most diplomatic exchanges with other states and political discussions with Ministers and officials of other governments, much of which takes place under a relationship of assumed confidentiality.
It is not necessary for the information to be contained in a document supplied directly by a foreign government for section 27(2) to apply.
In some cases, it may be possible to form a reasonable judgement as to whether the information remains confidential without needing to consult the supplier. This may be because officials have (or can consult someone who has) recent knowledge of the topic and the supplier's likely reaction to disclosure or because of an express condition of confidentiality or consent to disclosure attached to the supply of the information. In case of doubt, consult the supplier of the information.
Is the information or a substantial part of it already in the public domain, in the United Kingdom or overseas? How it came to be in the public domain may be important, as relations with a foreign government might still be prejudiced by the United Kingdom officially disclosing information which has previously only been in the public domain as a result of, for example, an unattributable press story or speculation.
Whether the state or organisation concerned has a culture of transparency in international relations. It is reasonable to take into account another state's general views on disclosure e.g. a state with a more liberal approach to FOI may be less likely to take offence at disclosure of some kinds of information and so the risk of prejudice to international relations may be lower (although it may still be prudent to forewarn the state concerned of a proposed disclosure). With a state, or international organisation, that has a less liberal approach to disclosure than the United Kingdom, account will need to be taken of its higher threshold for disclosure: what might be acceptable to others might still prejudice relations with that state or organisation.

Public Interest Test

3.6 Before information may be withheld under the exemption, an assessment must be made, in all the circumstances of the case, of the public interest considerations both in favour of disclosure and in favour of protection of the information. Is the public interest in having the information disclosed outweighed by the public interest that would be protected by non-disclosure? In other words, when considering section 27(1), is the public interest in disclosure outweighed by the damage or likely damage that would be caused to the United Kingdom's international relations, its interests abroad or its ability to protect and promote those interests?

3.7 Where the prejudice or likely prejudice would be relatively trivial (for example where disclosure of information about the content of a discussion with a foreign official would be unlikely to provoke any significant negative reaction by that official or his/her government or to have any significant detrimental affect on third states' willingness to enter into similar discussions in future), the public interest in favour of disclosure is likely to prevail. Where the prejudice or likely prejudice is potentially more serious (for instance, where disclosure of information about the United Kingdom's attitude to an international issue of particular concern to a state would be likely to provoke a strong negative reaction that could, for example, make it less likely that British companies would be awarded government contracts by the state concerned), there would have to be a more specific and compelling public interest in disclosure to outweigh the public interest in non-disclosure. Although each request must be considered on its merits, the public interest in maintaining the international relations exemption is likely to be strong when the disclosure of information would, for instance, significantly weaken the United Kingdom's bargaining position in international negotiations, inhibit other Governments' willingness to share sensitive information with the United Kingdom or inhibit frankness and candor in diplomatic reporting.

3.8 When considering the balance of the public interest in respect of confidential information covered by section 27(2), the following are some examples of matters which might be taken into account:

whether disclosure would be contrary to international law (for example where disclosure would be a breach of a treaty obligation);
whether disclosure would undermine the United Kingdom's reputation for honoring its international commitments and obligations;
whether disclosure would be likely to undermine the willingness of the state, international organisation or court that supplied the information to supply other confidential information in future (or whether it would be likely to have such an affect on the willingness of states, international organisations or courts in general);
whether disclosure would be likely to provoke a negative reaction from the state, international organisation or court that supplied the information that would damage the United Kingdom's relations with them and/or its ability to protect and promote United Kingdom interests;
whether disclosure would be likely to result in another state, international organisation or court disclosing confidential information supplied by the United Kingdom, contrary to the United Kingdom's interests;
whether the state, international organisation or court that supplied the confidential information has objected to its disclosure and good relations with them would be likely to suffer if the objection were ignored.

3.9 While the specific circumstances of each case must be considered, where any of the above considerations are present, there is likely to be a strong public interest in non-disclosure. Where the other country is opposed to disclosure, that will be a very important consideration. The impact on relations with the other country is likely to be so severe in those circumstances that the working assumption should be in favour of retention; under these circumstances, it will only rarely be the case that the public interest in disclosure outweighs the case for retention.

Consultation with the FCO

3.10 The FCO is likely to receive the majority of requests for information which would or would be likely to prejudice international relations if disclosed, but other government departments and public authorities will also receive requests for information that falls within the scope of the exemption. This includes documents supplied by the FCO and other governments as well as information created by the department or public authority concerned. As a matter of general principle, it will be good practice to consult FCO officials when considering whether to disclose information that may affect the United Kingdom's international relations as the FCO will, in most cases, be best placed to assess the likely impact of disclosure. FCO officials should normally be consulted before officials in other public authorities consult foreign governments or international organisations about the disclosure of information, although on subjects where other public authorities have well-established international relationships it may be sufficient simply to keep FCO officials informed. Enough time should be left for consultation to be completed within the statutory time limits.

Duration of the exemption

3.11 This exemption does not expire when the records in which the information is contained are 30 years old and become historical records. However the sensitivity of a subject, and therefore the need to apply an exemption may diminish with the passage of time.