Exemptions and the Public Interest Test Louise Townsend - Masons

2 Overview  Why are there exemptions?  Absolute and Non-absolute exemptions  Prejudice and class exemptions  Public interest test

3 Why are there exemptions?  Information available already  e.g. Publication schemes, EIRS, DPA  Access to information prohibited  e.g. By statute, contempt of court  To protect particular interests  e.g. National security, law enforcement etc.

4 Absolute and Non-Absolute Exemptions  Absolute - No public interest test, the exemption can be applied if the information fits within it.  Non-absolute – Application of the public interest test.

5 Public interest test “In all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”. = for information to be withheld, the public interest must be greatest in the interest protected by the exemption: the Act is designed to favour disclosure.

6 Prejudice and Class Exemptions  Some exemptions refer to an interest being prejudiced or being likely to be prejudiced  Not defined – a possibility of harm? NB – substantial prejudice in Scotland “real, actual and of significant substance”.  Others are class exemptions  Designed to give protection to all information falling within a particular category.

7 Exemptions  Information reasonably accessible to the applicant by other means (including on payment) S21 – ABSOLUTE  Information intended for future publication S22 – NON-ABSOLUTE

8 Exemptions  Information supplied, or relating to, bodies dealing with security matters S23 – ABSOLUTE  National security S24 – NON-ABSOLUTE NB - National security certificates

9 Exemptions  Defence S26 – NON-ABSOLUTE  International relations S27 – NON-ABSOLUTE  Relations within the UK S28 – NON-ABSOLUTE  The economy S29 – NON-ABSOLUTE

10 Exemptions  Investigations and proceedings S30 – NON-ABSOLUTE  Law enforcement S31 – NON-ABSOLUTE  Court records S32 – ABSOLUTE  Audit functions S33– NON-ABSOLUTE

11 Exemptions  Parliamentary privilege S34 – ABSOLUTE  Formulation of government policy S35 – NON-ABSOLUTE  Prejudice to effective conduct of public affairs S36 – ABSOLUTE (for information held by Parliament) NON-ABSOLUTE (for other authorities)  Communications with Her Majesty & honours S37 – NON-ABSOLUTE

12 Exemptions  Health and safety S38 – NON-ABSOLUTE  Environmental information S39 – NON-ABSOLUTE

13 Exemptions  Personal information  About the applicant  The Data Protection Act 1998 applies (subject access provisions)  Definition of data extended to cover all data  Amended subject access rules  New subject access exemption for personnel data S40 – ABSOLUTE

14 Exemptions  Personal information  about someone other than the applicant  FOIA applies  Would disclosure breach the data protection principles? (ABSOLUTE)  Is there a subject access exemption? (NON- ABSOLUTE)  Has a section 10 DPA objection been lodged? (NON-ABSOLUTE)

15 Exemptions  Information provided in confidence S41 – ABSOLUTE  Legal professional privilege S42 – NON-ABSOLUTE  Commercial interests S43 – NON-ABSOLUTE  Prohibitions on disclosure S44 – ABSOLUTE

16 Public interest test  the public interest in disclosure must be considered in every case where a non- absolute exemption applies & for EIR disclosures  the public interest protected by the exemption will vary with each exemption  “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”.

17 Public interest – common factors  Transparent and open decision making  Accountability of decision makers  Financial probity  Absence of bias  Integrity of judicial process  Adherence to natural justice  The general public interest in openness

18 Public interest – specific factors  Health of the population and/or individuals  Economic management  Prosecution of offenders - Factors must be considered on a case by case basis but a policy may be possible

19 Public interest – not relevant  embarrassment to the authority/employee  the applicant may misunderstand the information  incomplete information  loss of confidence in the authority

20 Summary  There are a number of exemptions which limit the extent of an authority’s duties  There are two types of exemption – absolute and non-absolute  Non-absolute exemptions require the public interest test to be applied  In most cases, even if an exemption applies, the authority will have to confirm or deny whether it holds the information

21 Practical Issues  When creating or reviewing material, consider whether an exemption may be applicable.  Consider document templates  Who will determine exemptions to ensure consistency?  Consider refusal process  Complaints procedures  Record keeping of requests and refusals  How will the exemptions be applied?