Freedom of Information Act Exemptions

The Freedom of Information Act creates a general right of access to information held by public bodies from 1 January 2005, but also sets out 23 exemptions where that right will either not be allowed or will be qualified

The FOI Act creates a general right of access to information held by public bodies from 1 January 2005, but also sets out 23 exemptions where that right will either not be allowed or will be qualified

The following notes constitute general guidance and should not be taken as legal advice.

Apart from vexatious or repeated requests, to which the Council need not respond, there will be two general categories of exemption:

where, even though an exemption exists, the Council will have a duty to consider whether disclosure is required in the public interest
where there will be no duty to consider the public interest.

The Public Interest Test

The 'public interest test' will require the Council to determine whether the public interest in withholding the exempt information outweighs the public interest in releasing it, by considering the circumstances of each particular case and the exemption that covers the information. The balance will lie in favour of disclosure, because information may only be withheld if the public interest in withholding it is greater than the public interest in releasing it, for example where disclosure of institutional information would harm a police investigation.

Guidance as to how exemptions might apply in particular circumstances will be developed by the office of the Information Commissioner in time and in the light of case by case experience.

Some detailed guidance is currently available on the Department for Constitutional Affairs website at

http://www.foi.gov.uk and the Information Commissioner's website at http://www.ico.gov.uk

Exemptions where the public interest test applies

Exemptions for which the Council will have a duty to consider whether disclosure is required in the public interest are listed below. Where the Council considers that the public interest in withholding the information requested outweighs the public interest in releasing it, the Council will be obliged to inform the applicant of its reasons, unless providing the reasoning would effectively mean releasing the exempt information.

s22	Information intended for future publication
s24	National security (other than information supplied by or relating to named security organisations, where the duty to consider disclosure in the public interest does not arise)
s26	Defence
s27	International relations
s28	Relations within the United Kingdom
s29	The economy
s30	Investigations and proceedings conducted by public authorities
s31	Law enforcement
s33	Audit functions
s35	Formulation of government policy, and so on
s36	Prejudice to effective conduct of public affairs (except information held by the House of Commons or the House of Lords)
s37	Communications with Her Majesty, etc. and honours
s38	Health and safety
s39	Environmental information
s40	Personal information ¹
s42	Legal professional privilege
s43	Commercial interests

Absolute exemptions

Absolute exemptions are the exemptions for which it will not be necessary to go on to consider disclosure in the public interest.

s21	Information accessible to applicant by other means
s23	Information supplied by, or relating to, bodies dealing with security matters
s32	Court records, and so on
s34	Parliamentary privilege
s36	Prejudice to effective conduct of public affairs ²
s40	Personal information ³
s41	Information provided in confidence
s44	Prohibitions on disclosure where a disclosure is prohibited by an enactment or would constitute contempt of court

Whole category exemptions

These are exemptions where the Council will be obliged to consider whether particular information falls within a particular category (or class) of information, such as:

s30	Information relating to investigations and proceedings conducted by public authorities
s32	Court records
s35	Formulation of government policy

If information falls into the category described in one of these exemptions, the Council will not be required to release it. There is no requirement to consider whether releasing the particular information requested would prejudice a particular activity or interest.

Prejudice test exemptions

These are exemptions where the institution concerned must consider whether disclosure of particular information would, or would be likely to, prejudice:

s27	The interests of the United Kingdom abroad
s31	Law enforcement

The information therefore will only become exempt if disclosing it would, or would be likely to, prejudice either of these factors.

^{¹ If the Council believes that disclosure would not breach any of the data protection principles, but the individual who is the subject of the information has properly served notice under s.10 DPA 1998 that disclosure would cause unwarranted substantial damage or distress, or the individual who is the subject of the information would not have a right to know about it or a right of access to it under the DPA 1998, there will be no absolute exemption, and the institution will be obliged to consider the public interest in deciding whether to release the information}

^{² Applies only to information held by House of Commons or House of Lords}

^{³ There is an absolute exemption from the provisions of the FOI Act if an applicant making a request for information under the FOI Act is the subject of the information requested and they already have the right of 'subject access' under the DPA 1998. There is also an exemption from the provisions of the FOI Act if the information requested under the FOI Act concerns a third party and disclosure by the institution would breach one of the Data Protection Principles}

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