Chapter 05: Can a public authority disclose information which is exempt under section 40?
5.1 The FOI Act has no effect on the question of whether
or not a public authority can disclose information which is exempt from
that Act. Just because information is exempt under section 40, it does not
necessarily follow that a public authority cannot disclose it outside the
FOI Act.
5.2 Whether or not exempt information can be disclosed
will depend on general public law principles and a consideration of all
the circumstances involved. The following may be of particular relevance
in the context of information which is exempt under section 40:
Whether the public authority has the power, in public law terms,
to make the disclosure;
Whether disclosure would breach the DPA, or Article 8 of the HRA;
Whether the disclosure is prohibited by another enactment or other
legal prohibition;
Whether it would be in the public interest to disclose the information.
