This chapter of the guidance sets out a number of important considerations which need to be taken into account when deciding whether or not to release information.
In a limited number of circumstances, Ministers play a formal role in making a decision on releasing information. These are cases where the FOI Act specifically requires that a decision relating to the disclosure of information is taken at Ministerial level. This applies in relation to the following provisions:
Where Ministerial certificates are concerned, you must ensure that the officials advising Ministers on the use of such certificates are of sufficient seniority to make the decision to recommend their use. If you consider that the information requested may be covered by a Ministerial certificate you should consult your FOI specialist.
Apart from these specific cases, there may be a range of other instances where information is to be disclosed where ministers will need to be made aware and advised on handling implications.
When considering the information to be released you should check whether any third party may have sent or supplied the information or have a close and direct interest in it. Your department may hold third party information concerning:
Consultation with third parties may play an important part in considering whether exemptions apply, particularly those relating to confidence, commercial sensitivity and relations with devolved and international partners. But even where this information is not exempt, you may need to think about informing third parties or obtaining their views on the release of the information.
It is important to remember, though, that any views expressed by third parties concerning release of information provided by them to your department are not binding on your authority. Your department holds the information, and as you hold the information, you are under the statutory duty to provide access to the information, not the third party. The only real exception to this is when the third party considers that the release of the information would be an actionable breach of confidence. If this is the case, you should take legal advice. Your department has to take the final view as to whether information should be released and a refusal by a third party to consent to the release of information is not binding on you.
If you consider that consulting with third parties is necessary, you may wish to consider involving your FOIA specialist.
Before making any decision on releasing information or on applying an exemption, you should ensure that you have the appropriate authority to make the decision. You should ensure that you follow any local procedures in your authority which determine who has authority for releasing information. As a general rule, the more complex the request is, the more senior the official making the decision ought to be.
If you receive a request that deals with releasing information which is subject to protective markings you should talk to your FOI Officer. Protective markings are not in themselves a reason not to release information, but they may be an indication that the information might be covered by an exemption.