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Exemptions - Details

The absolute exemptions are as follows:-

Information accessible to applicants by other means (Section 21)
Information dealing with security matters either supplied by, or relating to bodies dealing with such matters (Section 23)
Court records (Section 32)
Parliamentary privilege (Section 34)
Personal information (Section 40)
Information provided in confidence (Section 41)

The non-absolute exemptions are:-

Information intended for future publication (Section 22)
National security (Section 24 (notwithstanding the provisions of Section 23))
Defence (Section 26)
International relations (Section 27)
Relations within the UK (Section 28)
The Economy (Section 29)
Investigations and proceedings conducted by public authorities (Section 30)
Law enforcement (Section 31)
Audit functions (Section 33)
Formulation of government policy (Section 35)
Prejudice to the effective conduct of public affairs (Section 36)
Communications with the Queen (Section 37)
Health and safety (Section 38)
Environmental information (Section 39)
Personal information relating to a third party (Section 40)
Commercial interests (Section 43)

Information accessible to applicants by other means (Section 21)

Any information which can be reasonably obtained by another route, even if this would attract a charge, is exempt. This covers such information which authorities are required to communicate under other legislation, for example, the electoral register.

Information dealing with security matters either supplied by, or relating to bodies dealing with such matters (Section 23)

Information is exempt from disclosure if it was supplied by, or relates to, any of a number of security organisations listed in Section 23 of the Act. These include GCHQ, the Security Service, the National Criminal Intelligence Services and the Special Forces. A certificate signed by a Minister of the Crown will be evidence that such an exemption applies.

Court records (Section 32)

Information is exempt if it is contained within any document filed with or placed in the custody of a court for the purposes of proceedings; if it is served upon or by a public authority for the purposes of proceedings; or if it is any document created by a court or a member of the court’s administrative staff for the purposes of proceedings.

Also, information is exempt under this category if it is held by a public authority or contained in a document placed in the custody of a person conducting an enquiry or arbitration for the purposes of the enquiry or arbitration; or if it is any document created by a person conducting an enquiry or arbitration, for the purposes of the enquiry or arbitration.

Parliamentary privilege (Section 34)

This exemption is provided so that infringement of privileges for either House of Parliament can be avoided. In order to claim this exemption, the public authority claiming it will need proof that the Speaker of the House or Clerk of Parliament has certified that the exemption applies. A certificate signed by either of the above will constitute proof.

Prejudice to effective conduct of public affairs (Section 36 (but only relates to information held by the House of Commons and House of Lords))

This exemption applies to information where disclosure:

  • would, or would be likely to, prejudice the maintenance of a convention of the collective responsibility of Ministers of the Crown, or
  • would, or would be likely to, inhibit the free and frank provision of advice or the free and frank exchange of views for the purpose of deliberation, or
  • would otherwise prejudice or would be likely to prejudice the effective conduct of public affairs.

Section 36 (5) gives details of the qualified persons within certain public authorities. Included amongst these are Government Ministers; the Speaker in the House of Commons and the Clerk of Parliament for the House of Lords and the Mayor for the Greater London Authority.

Personal information (Section 40)

Personal information relating to the applicant is exempt from disclosure as rights under the Data Protection Act 1998 provide for access to this.

Where information relates to a third party, this is exempt where:

  • disclosure would breach the Data Protection Principles
  • where confirming or denying that any of the above information is held would breach any of the Data Protection Principles, then the duty to confirm or deny does not apply (Section 40).

Information provided in confidence (Section 41)

Where information is obtained from any other person in confidence and to disclose this to the public would be a breach of confidence, actionable by that person, then such information is exempt. Such a duty of confidence could be created by contract or from circumstances pertinent to each case. However, the Code of Practice advises that contractual confidence which cannot be justified, should be avoided (Section VIII and XI - Section 45 Code of Practice).

Prohibitions on disclosure by any enactment, incompatibility with any Community obligation or contempt of court (Section 44)

Where other legislation prohibits disclosure by order of a court, where disclosure would constitute a contempt of court or where disclosure is incompatible with any European Community obligation.

Note

The above exemptions apply only to the Freedom of Information Act 2000 and it may well be that any information that is exempted by them is still nevertheless required to be disclosed under other Acts. For example the right of subject access under the Data Protection Act 1998.

The non-absolute exemptions are:

Information intended for future publication (Section 22)

If, when a request is made, information is held by an authority which is intended for future publication, then it is exempt from disclosure in any case where it is reasonable that it should not be disclosed until the intended date of publication. The date for publication does not have to have been determined but there must however be some evidence to substantiate the claim that, at the time the request is made, there was a settled intention to publish.

If the confirmation or denial would mean the disclosure of any of the relevant information, then the duty to confirm or deny does not apply.

National security (Section 24 (notwithstanding the provisions of Section 23))

Information relating to the safeguarding of national security is exempt from disclosure as is the requirement to confirm or deny if to do so would mean the disclosure of any of the relevant information.

Defence (Section 26)

If disclosure of any information relating to the defence of the British Isles would be likely to compromise this then disclosure is exempted. Similarly, any information likely to prejudice the effectiveness, capability or security of relevant forces (armed forces of the Crown and any other forces co-operating with those forces) is also exempt, as is the requirement to confirm or deny if to do so would also prejudice this.

International relations (Section 27)

Information is exempt if its disclosure would, or would be likely to, prejudice relations between the UK and any other state, international organisation or international court, the interests of the UK abroad or the promotion or protection by the UK of its interests abroad.

Confidential information obtained from another state, an international organisation or international court is also exempt.

The duty to confirm or deny does not arise where prejudice might result to UK interests as set out above or where this involves the disclosure of any confidential information as defined.

Relations within the UK (Section 28)

Information is exempt if its disclosure would prejudice relations between any Government in the UK. This includes the Government, the Scottish Administration, the Executive Committee of the Northern Ireland Assembly or the National Assembly for Wales.

If to confirm or deny the existence of information would prejudice relations as described then this duty does not apply.

The Economy (Section 29)

If disclosure of any information would prejudice the economic interests of the UK or any part of the UK or the financial interests of any administration in the UK, then the relevant information is exempt.

The duty to confirm or deny does not apply where to do so would prejudice the above.

Investigations and proceedings conducted by public authorities (Section 30)

If, at any time, information has been held by the authority for the purposes of criminal investigations or proceedings, such as ascertaining whether a person should be charged with an offence, then this is exempt from disclosure. Similarly, investigations conducted by the authority which may lead to a decision to commence criminal proceedings or for criminal proceedings which the authority has a power to conduct will also be exempt. An exemption also applies to information which was obtained or recorded for the purpose of law enforcement proceedings and relates to obtaining information from confidential sources.

Such information does not attract the duty to confirm or deny its existence.

Law enforcement (Section 31)

Information not exempted by section 30 (see above), will still not have to be disclosed in the event that disclosure would be likely to prejudice:

  • the prevention or detection of crime;
  • the apprehension or prosecution of offenders;
  • the administration of justice;
  • the assessment or collection of any tax or similar imposition;
  • the operation of immigration controls;
  • the maintenance of security and good order in prisons and other institutions;
  • the exercise of certain functions by a public authority, such as determining whether any person has broken the law; is responsible for any improper conduct; whether circumstances justify regulatory action; ascertaining a person’s fitness or competence in relation to that person’s profession; protecting persons (other than at work against risk to health and safety in connection with the actions of persons at work); determining the cause of an accident or protecting or recovering charities or its properties;
  • any civil proceedings which are brought by or on behalf of a public authority and arise out of an investigation for any of the purposes specified above; or
  • any inquiry held under the Fatal Accidents or Sudden Deaths Enquiries (Scotland) 1976.

There is no duty to confirm or deny where to do so would prejudice any of these matters.

Audit functions (Section 33)

Information is exempt from disclosure if to do so would prejudice the exercise of an authority’s audit functions in relation to accounts of other public authorities or the examination of the economy, efficiency and/or effectiveness with which other public authorities use their resources in discharging their functions.

If prejudice could result from the confirmation or denial that such information is held then this duty does not arise.

Formulation of government policy (Section 35)

Information held by the government is exempt if it relates to:

  • the formulation or development of government policy
  • ministerial communications
  • advice by any Law Officers or request for provision of such advice
  • the operation of any Ministerial private office

Where statistical information is used to inform policy formulation and in connection with Ministerial communications are not exempted from disclosure once the decision has been made.

The duty to confirm or deny does not apply with regard to this type of information.

Prejudice to the effective conduct of public affairs (Section 36) (excluding matters covered under the absolute exemption part of this Section)

Information is exempt if, in the reasonable opinion of a qualified person (as defined), disclosure of the information would, or would be likely to, prejudice:

  • the maintenance of the convention of the collective responsibility of Ministers of the Crown;
  • the work of the Executive Committee of the Northern Ireland Assembly; or
  • the work of the Executive Committee of the National Assembly for Wales; or would be likely to inhibit:
  • the free and frank provision of advice; or
  • the free and frank exchange of views for the purpose of deliberation; or
  • would otherwise prejudice, or would be likely to, prejudice the effective conduct of public affairs.

Qualified persons are listed in Section 36 (5), which include Ministers of the Crown.

The duty to confirm or deny does not apply to this information if to do so would cause prejudice to any of the above.

It is also possible that statistical information may be exempt under this section.

Communications with the Queen (Section 37)

Information relating to communications with the Queen, the Royal Family or Royal Household, or relating to the award of honours or dignity by the Crown is exempt.

The duty to confirm or deny does not apply in this case,

Health and safety (Section 38)

If disclosure of information would or would be likely to endanger the physical or mental health of any individual, or the safety of any individual then such information is exempt from disclosure.

Where any of these matters would be prejudiced, the duty to confirm or deny does not apply.

Environmental information (Section 39)

Information is exempt from disclosure if the public authority is obliged by regulations under Section 74 to make such information available to the public or would be so obliged but for any exemption contained in the regulations.

The duty to confirm or deny does not apply in relation to information which is exempt under of this section.

Personal information relating to a third party (Section 40)

Where information relates to a third party, this is exempt where:

  • disclosure would breach the section 10 of the Data Protection Act, or
  • if the third party data were covered by the Data Protection Act its disclosure would contravene the Data Protection Principles, or
  • if the data subject would not have right of access to the information under the Data Protection Act because it falls under a subject access exemption under that Act.

Legal professional privilege (Section 42)

Information in respect of which a claim to legal professional privilege can be maintained in legal proceedings is exempt information.

Where to confirm or deny the existence of such information would involve disclosure in respect of which such a claim could be maintained in legal proceedings, this duty does not apply.

Commercial interests (Section 43)

Information is exempt if it constitutes a trade secret or would be likely to prejudice the commercial interests of any person (including the authority holding it).

The duty to confirm or deny that such information is held does not apply if prejudice would result to commercial interests. However, there is a duty to confirm or deny with regard to information which constitutes a trade secret.