Part 5 of a multi-part article for the Freedom of Information Journal on exemptions under the FOI Act.
The Freedom of Information Act 2000 (“FOIA”) establishes an obligation on public authorities to grant access to certain information that they hold or control.
The obligation imposed on public authorities is, at first glance, a very broad one. However, it is qualified by a number of exemptions, which operate to limit the information to which, and circumstances when, this obligation will apply.
Continuing with this series of articles on exemptions in the FOIA, in this article we look at the exemptions that are broadly concerned with information relating to investigations, legal processes and law enforcement.
Section 30 is primarily concerned with information obtained, recorded or held by a public authority in the process of investigations or proceedings that the public authority has a legal power or duty to conduct. It is a “class-based” exemption: i.e. if the information requested falls within the description, the exemption applies: it is not necessary to show that any “prejudice” would result in the disclosure (as in certain other exemptions).
Section 30 takes two slightly different approaches to determining whether information is exempt from being disclosed.
Under s.30(1) information will be exempt if it has “at any time been held by a public authority for the purposes of”:
any investigation the public authority has a duty to conduct to ascertain whether a person should be charged with, or is guilty of, an offence;
any investigation conducted by a public authority that may lead to a decision to institute criminal proceedings that the authority has power to conduct; or
any criminal proceedings which the authority has power to conduct.
Therefore, if information has ever been held for the above purposes, regardless of why it was obtained or the purposes for which it is now retained, it will be exempt.
Under s.30(2), broadly, information will be exempt if it was obtained or recorded by a public authority for the purposes of its functions relating to those investigations or proceedings outlined in s.30(1) and if it relates to the obtaining of information from confidential sources.
This is a different test to that in s.30(1), as in order to operate it looks at the purpose for which the information was obtained or recorded and its source.
Importantly, the s.30 exemption will only be available to an authority that exercises the investigatory or litigation functions referred to itself. If an authority does not carry out these functions, the exemption in s.31 (see below) may be of use instead.
The exemption in s.30 is qualified, so if the necessary conditions have been met, the exemption may still not take effect until the public interest test has been applied.
Where the exemption is held to apply, the duty to confirm or deny whether or not information is held will not apply.
This exemption will be of most use to those authorities whose primary function is to carry out criminal law enforcement such as police forces and the Serious Fraud Office. It may also assist authorities such as the Environment Agency, Health & Safety Executive and local authorities.
Law Enforcement (s.31)
The application of s.31 turns on the likely effects of disclosing information that is broadly concerned with law enforcement. Both a prejudice test and the public interest test must be applied.
Section 31 may only apply where s.30 (investigations and proceedings conducted by public authorities) does not. Although ss30 and 31 are closely linked, s.30 focusses on the source and purpose of the information, while s.31 looks to the possible effects of disclosure.
Under s.31, information will be exempt if its disclosure would, or would be likely to, prejudice any of a number of listed areas, including the prevention or detection of crime, the apprehension or prosecution of offenders and the administration of justice.
The duty to confirm or deny will not apply under this exemption if the process of confirming or denying existence of the information would or would be likely to prejudice the specified law enforcement purposes. Therefore, if merely confirming that a police authority does or does not hold a file on a person might prejudice any investigation into that person, then the police authority can issue either a “neither confirm nor deny” response.
This exemption will most frequently be used by those authorities in the criminal justice system, however it may also be used by authorities involved in the assessment or collection of tax and the operation of immigration control. In addition, this exemption can extend much more widely to any authority where its function involves one of a number of specified purposes such as:
- ascertaining whether a person has failed to comply with the law;
- ascertaining whether a person is responsible for improper conduct;
- undertaking regulatory action; or
- ascertaining the cause of an accident.
This is one of the few exemptions which has seen a number of Decision Notices from the Information Commissioner. In three Decision Notices in August, the Information Commissioner considered three slightly different requests, all relating to the location and effectiveness of fixed speed cameras. In each case the relevant police authority declined to disclose information on the location of fixed cameras and information such as how many drivers had been caught or how much (in terms of fines) had been “earned” from each camera. The reasons given by the police authorities were twofold:
Under s38 information is exempt if its disclosure would or would be likely to endanger the physical or mental health of any individual or endanger the safety of any individual (see below). Although there are many contributory factors to road traffic accidents, the police authorities claimed that speeding was a significant factor and in addition speed cameras were located at accident black spots in order to minimise speed and make the road safer.
In all three cases the Information Commissioner confirmed the decision of the police authority. The Decision Notices document the Commissioner’s application of these two exemptions and also his reasoning in relation to the public interest test which applies to both exemptions.
Health and Safety (s.38)
Under s.38 information will be exempt from disclosure if its disclosure would, or would be likely, to endanger the physical or mental health or safety of an individual.
Guidance from the Department for Constitutional Affairs (DCA) has expanded upon the way in which these terms should be interpreted. The disclosure of information will be “likely to endanger” if there is a risk of harm which could be reasonably expected, although there is no need for the details of that harm to be specifically foreseeable. “Physical or mental health” should be given a natural, general meaning, taking into account that the courts have tended to interpret such definitions broadly. The reference to “an individual”’ makes this exemption relevant where an individual who might, or might not be individually identifiable at the time of disclosure, is at risk of being harmed. Therefore, a risk of harm to a group or class of persons would be sufficient.
A person’s health or safety could be endangered in a number of ways. The risk of physical harm will rarely be direct – more often this will arise from the actions that result from the disclosure of information. However, mental harm is more likely to result directly, with the shock or distress caused by disclosure being potentially relevant. If the individual likely to suffer from disclosure is identifiable and they are less physically or mentally robust than the average person, this should be taken into account when weighing up the application of the exemption.
For the exemption under s.38 to apply, the public interest test must also be applied.
When considering this exemption it is important to remember that information about health and safety will not necessarily be the same as information that may endanger the health or safety of an individual. Moreover, health and safety information will often be environmental information and as such exempt under s.39 of the FOIA (as information that should be considered for disclosure under the Environmental Information Regulations 2004).
In addition, it should be remembered that the s.40 exemption (exempting the disclosure of personal data, of which the applicant is the subject) may be applicable to situations where s.38 is considered. For example, if a request might result in the disclosure of the home address of witnesses or police informers, leading to a risk of retaliation by others, both s.38 and s.40 could apply to such a request.
Finally on this exemption, it may assist where information relating to a deceased person is requested. For example, the media could request information relating to the injuries of a murdered person. Such information would not be personal data as the subject of the information is dead. However, disclosing the information could in some circumstances harm a surviving relative (if he/she were not already aware of the injuries) and so be exempt under this provision.
Court Records (s.32)
Section 32 is concerned with information contained in litigation documents, and court, tribunal and inquiry records.
The purpose behind this exemption is to preserve the existing rules concerning accessing court documents. Courts and tribunals are not public authorities for the purposes of the FOIA. Therefore, a court would not need to respond to an FOIA request. However, the Court Service, Northern Ireland Court Service and central government bodies that provide administrative support to courts and tribunals are public authorities, so are subject to the FOIA.
These bodies may hold information on behalf of courts and tribunals, in which case for the purpose of the FOIA they are not deemed to be holding the information themselves, meaning the information will not be held by a public authority, so the FOIA will not apply.
The intention is that FOIA should not permit some greater public access to court documents than already existed. For example, under the Civil Procedure Rules any person can inspect and take a copy of documents such as claim forms, judgments or orders in civil proceedings.
Information will be exempt if it is contained in any document relating to proceedings that is held by a court, served upon or by a public authority, or created by a court or a member of the administrative staff of a court. Information will also be exempt if it is contained in a document that is held by, or created by a person conducting an inquiry or arbitration for the purposes of that inquiry or arbitration. It is worth noting though that this exemption applies only to statutory inquiries: “informal” inquiries (such as Lord Butler’s review of the intelligence on weapons of mass destruction) do not trigger this exemption.
The exemption turns to some degree on the form of the information rather than its substance. Information must be included in a particular type of document and must be held by the public authority only by virtue of this. If a public authority has also obtained the requested information from another source or by another means, the exemption will not apply. However, if the information is held in the appropriate form the exemption will apply irrespective of its content. For example, if an authority wishes to bring a claim to enforce a contract it will issue a statement of claim and submit documents to the court including a copy of the contract. The statement of claim exists only for the purpose of the proceedings and is filed with the court. It is therefore exempt. However, the contract pre-dated the proceedings and therefore would not be exempt under this provision.
If the exemption does apply the obligation to confirm or deny whether the information is held does not arise.
Already this exemption has been the subject of a Decision Notice and an appeal to the Information Tribunal. The applicant had requested from Bridgnorth District Council a copy of the transcript of a case heard in Wolverhampton Crown Court. The Information Commissioner decided that the exemption at s32 had been correctly applied, since the transcript was information held by the Council only by virtue of being contained in a document created by the court. On appeal the Information Tribunal held that this exemption did not apply to transcripts because, on the strict wording of the exemption, they are not documents “created by….a court”. They may be created for the purposes of the relevant proceedings but they are not created by the court (in this particular subsection of the exemption meaning by a judge). In practice however this did not help the applicant since the transcripts had been destroyed some time previously!
The s.33 exemption is only relevant to those public authorities that perform certain audit functions in relation to other public authorities. It may be applied where the function of a public authority is to audit the accounts of another public authority, or examine the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions.
Accordingly, this exemption is not available:
To the entities which are subject to the audit procedures;
Where the auditing body audits private sector entities; or
For internal audit functions.
The DCA guidance on this exemption lists the types of bodies which may use this exemption which include the well known audit bodies such as the NAO and the Audit Commission and also inspectorates such as OFSTED, HM Inspectorate of Prisons and HM Inspectorate of Constabulary.
The Information Commissioner’s Office (ICO) guidance notes that where an audit body such as the Audit Commission employs external auditors to assist they are not within the definition of a “public authority” and therefore will not be able to use this exemption
The exemption expressed in s.33 will only apply if disclosure of the requested information would, or would be likely to prejudice any of the functions that make s.33 applicable to the public authority. Section 33 is also subject to the public interest test.
If the exemption is taken to apply, the obligation to confirm or deny will not.
Information held by an auditor will often be held with subsequent disclosure in mind, which raises the question of when the application of the exemption would be appropriate. Guidance issued by the DCA has suggested some circumstances where the exemption might be appropriate. These include:
Disclosure of information provided by third parties.
Auditors often rely on information from third parties to help form a clearer picture of a public authority’s accounts, or the efficiency and effectiveness with which it carries out its functions. If disclosure of this information would make it less likely that the third party would volunteer the information in the future, the exemption could apply.
Disclosure of details of audit method.
It may be appropriate to keep details such as the files that will be examined from the public authority that is going to be audited, before the audit takes place. Equally, disclosure of audit methods after an audit has taken place may prejudice subsequent audits, so the exemption may apply.
Disclosure prior to official publication
To disclose audit information before the audit findings are officially published could undermine the fairness of the audit process if, for example, it meant that the findings had not been fully tested. Such a move could damage the reputations of those involved and prejudice the audit function.
Legal Professional Privilege (s.42)
Section 42 exempts from disclosure any information held by a public authority to which legal professional privilege (“LPP”) would attach in legal proceedings. There is no need for legal proceedings to be active for the exemption to apply.
In legal proceedings, LPP protects confidential communications between lawyer and client, and certain other information prepared with litigation in mind, from the obligation to disclose. The aim of this being to ensure that a person can consult with their lawyer in confidence.
This exemption applies to two types of privileged information:
- “Advice Privilege”: this relates to communications and other documents passing between a lawyer and his/her client; and
- “Litigation Privilege”: this relates to communications and other documents that come into existence once litigation has started or has a reasonable likelihood of starting. This type of privilege can protect communications with third parties (i.e. not just communications between the client and his/her lawyer).
Given that s.42 is based on the way that LPP would attach in legal proceedings, the same types of communications are relevant to this exemption. For a public authority, this will mean that the exemption may apply to communications with in-house legal advisers, lawyers employed by other public authorities, or external lawyers in private practice. For the exemption to apply these communications must be confidential and as the recent House of Lords decision in the Three Rivers case confirmed, the dominant purpose of creating the document must be for seeking legal advice in the relevant legal context. Communications between lawyer and client will usually be deemed confidential, even if within government several departments are involved. However, if communications are shared widely beyond government and its agencies this quality of confidence may be lost.
If at any point the public authority chooses to waive its privilege in any information, the s.42 exemption will cease to be effective.
The exemption under s.42 is not absolute so the public interest test must be applied where there is scope to use the exemption. The public interest in being able to consult with legal advisers freely in the context of legal advice is regarded as being key to the administration of justice, and as a right that attaches to public authorities as much as it does to individuals.
Legal advice is likely to be sought by a public authority in connection with the formation of policy. The nature of legal advice dictates that it may well reveal the shortcomings as well as the positive side of any particular strategy meaning that disclosure of this advice may impact on the efficiency with which the government can defend its position, which is arguably contrary to the public interest. In addition, the risk that such advice would be disclosed could lead to less complete notes of legal advice being made, which would again be contrary to the public interest.
However, there is also a need for the public to have confidence in the decisions of government, and for these decisions to be made in an accountable and transparent manner. Therefore, in certain situations, for example to confirm whether legal advice has been followed, the disclosure of information may be appropriate. Given the strong bias in favour of maintaining the exemption, cases where the public interest is deemed to justify disclosure are likely to be rare.
The Government quoted this exemption (amongst others) when withholding the Attorney General’s advice on the legality of the war in Iraq. The argument employed specifically made reference to the public interest in maintaining the confidentiality of communications between lawyers and their clients. This decision attracted substantial criticism at the time but ultimately was not successfully challenged, as the Attorney General’s advice was later released, but not via FOIA channels.
Subsequently, there has been some consideration of this exemption by the Information Commissioner in Decision Notices where he has included comments on the application of the public interest test to this exemption, stating that “there is always a strong public interest in maintaining this exemption”. In particular, the Decision Notices place heavy emphasis on the need for legal advice to be full and frank and the risk that public authorities might not get such advice (or might not even seek advice) if it became routine for legal advice to be disclosed. Consequently, the Information Commissioner confirmed the decisions not to disclose legal advice
These make an interesting selection of exemptions which, although not initially exciting, have already generated a number of Decision Notices and at least one Information Tribunal appeal case. These decisions will provide useful additional guidance, given that the exemptions are key for many public bodies and will be applied frequently.
This article is part 5 of a multi-part article published in the Freedom of Information Journal