Guide to the Exemptions

The right to access information under FOIA is not absolute, and the authority can withhold information if it falls within one of the exemptions set out in the Act. This section will explain how the exemptions work, and provide a quick guide to the most common exemptions.

Some of the exemptions are absolute. If the information falls within the exemption, the authority should not disclose the information. Others are qualified, and even if the information falls within the exemption the authority should still release the information, unless the public interest in withholding the information is greater then the public interest in disclosing the information. For more information on the Public Interest Test, see The Public Interest Test.

Absolute Exemptions
Information available to the applicant by other means – If the authority publishes the information in its website, or keeps it in a public register, they are not required to provide it in response to a request. However, the test is whether it is available to the applicant, so if for some reason you are unable to access it in the way they suggest, you can argue that it is not available to you, so the authority should still provide it as required.

Information provided by, or related to bodies dealing with security matters – This provides an absolute exemption for information provided by bodies such as the Security Services, the Secret Intelligence Services and General Communications Headquarters. It also exempts information which is about these bodies.

Court Records – You cannot use FOIA to access certain court and tribunal documents. This is because there are particular rules governing access to documents they hold, such as legal submissions and written evidence.

Parliamentary Privilege – If disclosure would lead to a breach of parliamentary privilege, the authority must not disclose it. But just because the information is held by parliament or is about parliamentary business does not mean that its disclosure would breach privilege. If the Parliamentary authority considers that the information is privileged, it can certify the fact, and this will be conclusive evidence that it is privileged.

Personal Information – This exemption is quite complex, and is often relied on by public authorities incorrectly. It exempts two classes of information:

* Personal data about the person requesting the information – If you want to ask for information about yourself held by a public authority, you are not entitled to rely on FOIA, but must instead use the Data Protection Act. For information on the DPA see Data Protection Act.
* Personal data about someone else (either an employee of the public authority or a third party).

To withhold information about someone else, the following criteria apply:

* The information must be ‘personal data’ about a living individual. There is no protection for data about deceased persons. The Department of Constitutional Affairs states that the term should be given a wide interpretation. However, the Court of Appeal in Durant v Financial Services Authority said that data was only ‘personal data’ if it was biographical in a significant sense and if it had the data subject as its focus. So there would be a strong argument that, if the information is the name of a functionary who was present in a meeting, or who wrote a particular email, then that information is not biographical, nor has that functionary as its focus. It merely refers to his or her involvement in his capacity as an employee, so is not personal data, and should be disclosed.
* If it is personal data, then it should be withheld if disclosure would be ‘unfair’ to the data subject. This is a complex balancing exercise, taking into account all the circumstances of the case, in particular, how the authority obtained the information, whether the data subject would expect that this information would not be disclosed, what effect disclosure would have on him or her, and public interests considerations.

Environmental Information – If the information requested is environmental information, it is exempt from FOIA, and the authority must apply the Environmental Information Regulations instead. For information on the EIR, see Accessing Environmental Information.

Qualified Exemptions
Prejudice exemptions – There are a series of exemptions where disclosure would prejudice the defence of the realm, international relations the economic interests of the UK, the interests of law enforcement and detection of crime, the exercise of audit functions and health and safety.

There are two important factors to bear in mind in relation to these exemptions. First, the authority must show that disclosure would or would be likely to prejudice the protected interest. This does not mean that it must prove it beyond reasonable doubt, but must show that there is a very significant or weighty chance that disclosure would result in the prejudice.

Secondly, even if the authority shows that the protected interest would be prejudiced – for instance, that disclosure would prejudice the international relations – it must still show that the public interest test favours withholding. Otherwise it must disclose.

There are two prejudice exemptions that have special rules:

Prejudicial to the conduct of public affairs – If the disclosure of information would harm the conduct of public affairs, by jeopardising the principle of collective cabinet responsibility, or by inhibiting internal communications or provision of advice to ministers, the authority may withhold it. But to do so, it must obtain a certificate from an authorised person (such as a Minister) that disclosure would in fact be prejudicial, and that the public interest test favours withholding the information.

Prejudicial to Commercial interests of any person – This allows an authority to withhold information if its disclosure would prejudice their own commercial interests, or those of anyone else. This exemption covers matters such as trade secrets, and information relating to commercial negotiations. The mere fact that a third party states that the disclosure would prejudice its commercial interests is not sufficient – it is up to the public authority to asses whether it would really be likely to do so. Prejudice to commercial interest normally declines over a period of time – information about negotiations that took place last week may harm commercial interests of the parties involved, but one year later it is less likely that it would do so.

Non Prejudice Exemptions
Information that relates to the formulation of governmental policy – this exemption can only be used in relation to information held by government departments. The authority need not show prejudice, but it must show that the information relates to one of four categories: the formulation and development of government policy; communications between Ministers; the provision of advice by the Law Officers and the operation of any Ministerial private office.

The exemption is subject to a public interest test. Where the information consists of background data or statistics, FOIA expressly requires that there should be great weight placed on the public interest in disclosure.

Information provided in confidence – This exemption protects from disclosure information that was provided by other parties, if disclosure would constitute and actionable breach of confidence. Although there is no explicit mention of a public interest test under this exemption, this is not an absolute exemption, as the test for an ‘actionable breach of confidence’ includes a public interest test.

Information must be withheld if all 4 criteria below apply:

1. It was provided by another person – the information held by the public authority must have been provided by another party. This can be another public authority, but not if the authority is a government department and the party that provided the information is another government department.
2. The information is held subject to a duty of confidence - this can be because the authority expressly agreed to kept it confidential, or because there was an implication that the information was kept confidential when it was provided.
3. The information must have the necessary quality of confidence – this means that the information must not be in the public domain, must not be trivial, and must be worthy of protection. The mere fact that a document has ‘In Confidence’ written on it does not make it confidential.
4. The public interest favours maintaining confidentiality– There will not be an actionable breach of confidence if there is a particular public interest in disclosure that outweighs the public interest in preserving confidentiality. But, if the information meets the three criteria above, and as such is confidential information, there is presumption that the public interest is in maintaining that confidentiality. This is unlike the general public interest in FOIA, where the presumption is that the public interest favours openness and disclosure.

There is further and more detailed guidance on the exemptions available from the Department of Constitutional Affairs and the Information Commissioner’s Office. See Useful Organisations and Contacts.