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The terms "security" and "good order" are not defined in the FOI Act. The term "security" will include all matters related to the secure custody of those detained, the safety of all persons in the institution, and the detection and prevention of activity (including but not limited to criminal activity) not permitted within the institution. The term "good order" will include all matters addressing disobedience on the part of individuals or concerted indiscipline by groups of persons in the institution, and promoting a safe and orderly regime.
The exemption is intended to prevent disclosure of information under the Act from prejudicing "security and good order" not only in "prisons", but "other institutions where persons are lawfully detained". This term includes, but is not limited to:
This exemption focuses on the effects disclosure of the information would have. Information might prejudice the "maintenance of security and good order in prisons" in two ways:
A key aspect of good order is the need to ensure that any changes to the routine in a prison are introduced in a carefully managed way and with the prisoner reaction assessed and expectations managed so that when the change is introduced, there is not an immediate adverse reaction that can put staff and prisoners at risk. Accordingly, an example of the first type of prejudice might be prematurely released information about a potentially unpopular policy change either being put in place or being considered. An unwelcome change in the regime of an institution could potentially lead to concerted indiscipline or worse. Hypothetical examples of such information relevant to good order might be information about proposed changes in the Home Detention Curfew ("tagging") policy or Incentives and Earned Privileges scheme, or information about changes in meal times or visits arrangements.
An example of the first type of disclosure covered by the exemption related to security, might be information detailing the times and routes of prisoner escorts. Release of this information might aid an escape attempt, as might detailed information regarding locking procedures or perimeter security systems.
An example of the second type of prejudice might be the disclosure of information about the strategy for dealing with concerted prisoner indiscipline or the contingency plans for responding to other types of incident. Releasing such information could compromise the ability of an institution to restore good order.
Conversely, information on physical security at a prison which was assessed as having little or no impact on the risk of prisoner escape if disclosed might not be considered to prejudice security and should therefore be disclosed.
Section 31 is subject to the "public interest test" set out in section 2. The operation of this test may mean that even if section 31(1)(f) covers a requested piece of information (e.g. disclosure of it would prejudice the maintenance of security or good order), there may still be an obligation to disclose it.
When it is decided by a public authority that section 31(1)(f) covers a requested piece of information, the following rule or "test" must be applied to determine whether or not the information is exempt: does the public interest in withholding the information outweigh the public interest in disclosing it? If not, it must be disclosed.
There will often be cases where there are strong public interest arguments in favour of disclosure and non-disclosure. There is a public interest in ensuring that there is public confidence in the operation of the prison system, and one way of ensuring this is to keep the public informed of policies, developments, proposals for the future etc, together with explanations of them. The public interest is not served however by releasing information which might aid an unlawful escape or put anybody within an institution at real risk of harm.
Hypothetical examples of varying public interest considerations which will need to be weighed in the balance are:
Example 1: A request is received by a prison for the contract made with the private company who installed the perimeter fence. Some parts of the contract will be disclosable in any event, as not falling within any exemption. For those parts of the contract that do fall within the section 31(1)(f) exemption (as being likely to prejudice security etc.), for example, technical information about the strength or depth under the ground of the fence:
Example 2: A request is received for a report which highlights serious security failings in a prison.
The timing of disclosure may well be relevant when weighing up public interest arguments. If the request for the perimeter fence contract were to be received the day after the prison had been permanently shut down there would be no argument against disclosure. Likewise, if the request for the report were received long after the security deficiencies had been rectified.
The arguments on each side must be weighed up and a decision made. If it is deemed that the arguments balance perfectly, the information should be disclosed.
In cases where it is considered that this exemption may apply, there may be an overlap with some of the other exemptions, in particular:
As indicated above, the exemptions in section 31(1)(g) to (i) all work as follows. A request for information will be refused where disclosure would prejudice:
The interplay of these components needs to be borne carefully in mind. The structure of the Act means that the prejudice must be to the process and not the purpose. To put that another way, it is not enough that the purpose is prejudiced - the prejudice must be caused by the effect of disclosure on the process. In practice, it is likely that the two aspects will be very closely linked indeed, but care will need to be taken in articulating the application of the exemption properly. The public interest, on the other hand, must be considered in the round. In each case:
It should be remembered that the request for information may not be directed towards the public authority whose functions might be prejudiced so it will be necessary, in the context of any such requests, to consider the impact of disclosure on an other public authority.
This guidance now considers
In each case, an indication of the most relevant public interest considerations is also suggested.