A multi-part article on exemptions under the FOI Act
For part II, please click here.
It may be trite, but it is certainly true, that the way in which public authorities apply the exemptions under the Freedom of Information Act 2000 (FOIA) will make or break this Act. In this multi-part article we will look at the various exemptions under the Act and the guidance so far available on how the exemptions should be applied.
The exemptions comprise Part 2 of the FOIA: 24 sections each containing at least one exemption. (In some cases one section contains more than one exemption. For example, Section 43 entitled “Commercial Interests” protects both trade secrets and commercial interests). Later parts of this article will look at the detail of the exemptions such as the protection of confidential information, personal information and information relating to the formulation of public policy. This part looks at a key test in FOIA which will affect most of the exemptions: the public interest test.
Prejudice and Public Interest
Before turning to the public interest test, it is worth noting that most of the exemptions only apply to the extent that some harm (or in the terminology of FOIA “prejudice”) would result if the exemption were not available. Therefore, in nearly all cases a public authority must not only decide which exemption is the most relevant, but also go on to consider whether any harm or prejudice would result if the information were not protected by the exemption. As a result, the exemptions do not, in general, protect whole classes of information: if a request is made often at least part of the information requested must be revealed since no harm would result from its disclosure.
However, public authorities have a much greater duty to fulfil in the shape of the public interest test. Section 2 of FOIA explains the effect of the exemptions in the Act. It classifies exemptions as either “absolute” or subject to the public interest test (commonly called “qualified” exemptions). In the public interest test a public authority must consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information (or disclosing that it holds the information). (The right to information under FOIA is, in fact, two rights: the first, a right to be informed in writing by a public authority whether it holds the information requested and the second, a right to have that information communicated to the applicant. This first right is commonly called the duty to confirm or deny. The public interest test can apply to either of these rights).
The Public Interest test
The public interest is not defined in FOIA, but this is not unusual in freedom of information legislation. It is recognised that flexibility is needed in this test since the public interest will change over time and according to the circumstances of each situation. (In both Canada and Australia law reform bodies have reviewed their country’s freedom of information legislation and concluded that public interest should not be defined in legislation).
Looking at the terminology in the test itself, it is worth noting that the test is that the public interest in maintaining the exemption outweighs the public interest in disclosing the information (or that the public authority holds the information). Therefore, if in the balancing test the public authority decides that the interest in maintaining the exclusion is the same as the public interest in disclosing the information, the information should be disclosed.
An interesting question will be: what is the public? Is it one person, a section of the public or all of the public? In other jurisdictions the term has been used in a geographic sense such as the citizens of a particular country or city. It has also been used in a numeric sense, such as the majority of people living in Sydney. In Ireland guidance on Irish freedom of information legislation specifically states that although the public interest normally applies to a fairly large group of people, there is nothing to stop it applying to a single individual.
Information Commissioner’s Guidance
The public interest test’s significance cannot be understated: it will apply to 17 of the FOIA’s 25 exemptions. Therefore, in most cases, a public authority will need to carry out the test. Although FOIA is a new piece of legislation to England and Wales, that is not to say that there is no learning on the subject. The Information Commissioner, who will enforce the FOIA in England and Wales, has produced a series of awareness guidance notes, of which number 3 deals with the public interest test.
After describing how the test arises under the FOIA, it gives some examples. This is where the difficulty in applying the test becomes apparent. The examples relate to Section 31 of FOIA which exempts information whose disclosure would or would be likely to prejudice the prevention or detection of crime or the apprehension and prosecution of offenders. In the example a first request is received by a police force about the relative detection rates of burglaries in different parts of a city. In responding, the risk of assistance being given to burglars must be weighed against the general public interest in openness and increasing participation in public debate about matters such as policing. A second request may be received about the number of police officers allocated to guard visiting dignitaries. In this case there is the same risk that supplying the information might assist criminals. There is also the same public interest in openness. However, the Information Commissioner makes the point that the police may argue that the risk presented in the second case is considerably stronger than in the first.
Notably, the Information Commissioner does not say definitively that in the first case the test would not be fulfilled and the information would need to be disclosed, whereas in the second case the test would be fulfilled and the information could be withheld. The Awareness Guidance is clear that it is difficult to provide fixed guidance on this test.
The Awareness Guidance goes on to list factors in favour of disclosure or against disclosure and points to be considered or ignored when applying the public interest test. These factors are, in the main, gleaned from research commissioned by the Information Commissioner in August 2003 from the UCL’s Constitution Unit - Balancing the Public Interest: Applying the Public Interest Test to Exemptions in the UK Freedom of Information Act 2000. The research looks at decisions of the UK Parliamentary Ombudsman under the Open Government Code of Practice on Access to Government Information. This non-statutory Code has been in operation since 1994 and includes its own public interest test. The research also looks at decisions under similar freedom of information legislation in Ireland, Canada, Australia and New Zealand.
It is important to note that the public interest test in these jurisdictions is not exactly the same as the public interest test in England and Wales. Although a test may exist the terminology used may be different, for example it may require there to be a “compelling” public interest which “clearly outweighs” the exemption (as in Ontario) or a risk of “significant” harm or showing that the disclosure is for some other reason “clearly” in the public interest (as in British Colombia). Therefore, although case law from other jurisdictions is useful, it must be treated with some caution since the test is not exactly the same.
In addition, as will be seen, the test is very context specific: often the information requested relates to some topic of public debate, what is of interest in one country is quite often of no or little interest in others. Therefore, some of the examples need to be “translated” into an English context. (For example, in Canada some of the cases, unsurprisingly, relate to the independence of Quebec. In the UK, perhaps, this could be translated to a separate parliament for Scotland).
What should be weighed?
Factors that a public authority should bear in mind and may lead to disclosure of the information include the following:
· assisting in public debate on key issues of the day. If information can be disclosed to further the understanding and participation in this debate, this is an important factor. In a case in England and Wales a request for Treasury information on the constitutional issues involved in joining the EMU was heard by the Ombudsman. The Ombudsman considered that, since this was a matter of considerable public debate, the public interest in disclosure was particularly strong. However, the question was whether the particular information requested would assist the public. In this instance the information requested was part of an internal process and did not constitute a Treasury review and therefore the public interest in disclosure did not override the relevant exemption.
· ensuring accountability and openness in decisions made by public authorities. In Ireland a request for correspondence between various parts of the government and the legal fraternity on the drafting of the Solicitors’ Amendment Bill 1998 was granted. The Irish Commissioner held that it was in the public interest that the views and representations which influenced the legislative process should be open to public scrutiny.
· ensuring accountability and transparency in the spending of public money. In 1997 the Parliamentary Ombudsman ruled on a request from an interest group for information on the current cost estimates for the proposed wetland habitat in Cardiff Bay. The Cardiff Bay Development Corporation refused to give a detailed breakdown. Although the Ombudsman accepted that disclosing estimates might cause some prejudice to the Corporation’s position, he held that the public interest in having up to date information about costs and estimates outweighed any prejudice and the estimates should be disclosed.
· allowing individuals and companies to understand decisions made by public authorities which affect them and if necessary assist in challenging those decisions. A vehicle testing station asked the Vehicle Inspectorate to provide the report on which the decision was based to withdraw vehicle testing station status. The Parliamentary Ombudsman held that the public interest in having access to the additional information in the report was strong enough to outweigh the potential harm to frankness and objectivity of future advice.
· ensuring the prompt disclosure of information by scientific and other experts in matters of public health and public safety. The Parliamentary Ombudsman heard a request for information from the Department of Environment for a complex technical report about the economic viability of the thermal oxide reprocessing plant (THORP) at Sellafield. The Ombudsman found that the public interest in maintaining the exemption was greater than the public interest in disclosing the report. However, it was significant that the report was consistent with the published public consultation paper and, although it was more detailed, it did not make any further information available.
The following are factors which should not be taken into account when balancing the public interests:
· Public curiosity: something that is in the public interest does not mean something that merely gratifies curiosity or provides entertainment or amusement. This is a concept that is well known in media law where frequently individuals try to get injunctions to prevent a newspaper publishing a story about them. Examples from other jurisdictions include a request, in New Zealand, to publish a photograph of a criminal carrying out a criminal act. The criminal had already been prosecuted and found guilty. It was held that releasing the image would prejudice her privacy and the public interest surrounding the conviction had already been met by criminal proceedings in open court. It was not necessary to release and publish the photograph.
· Embarrassment: simply because the information would cause the government embarrassment or reveal incompetence or fraud within government is not a factor to be taken into account. Again in New Zealand, a photographer sent his work to a part in the government where it was accidentally put in the rubbish. The photographer asked for the name of the person who had done this. It was held that although the person had a privacy interest, the public interest in the right to be fully informed overrode this.
· Complexity or confusing information: it is not a good reason to withhold information simply because the information which will be disclosed is complex. As the Australian Commissioner has said this rather “elitist and paternalistic” view is wrong and individuals and the public generally should consider whether something is too confusing to be of benefit or whether debate is necessary. A journalist in Queensland requested information showing adverse outcomes from surgeries performed by a hospital. The Commissioner held that the fact that the average person might not fully understand the technical report on the outcome was not a valid reason for denying the public access to it.
The research commissioned by the Information Commissioner included an analysis of decisions on the Open Government Code of Practice by the Parliamentary Ombudsman between 1994 and 2002. This showed that the Ombudsman considered the public interest in 21 out of 106 decisions. Of those 21 cases approximately 66% involved decisions where the public interest test did not outweigh the potential harm caused by the disclosure and the decision was to withhold the information. The remaining 33% of the decisions went in favour of disclosure. This, perhaps, shows that the application of this test is not an easy one but that government to date has been applying it reasonably fairly.
It is difficult to provide general guidance on how to apply the public interest test since it is very context specific. Often whether the test is passed or failed depends on the timing of when the information is requested and what is available already in the public domain. What is clear is that the public interest test is a strong indicator of the change in emphasis being brought about by FOIA. Government culture has now changed from the need to know to the right to know. The public interest test will be an important step in shifting the balance in favour of greater openness.
Also published in the Freeedom of Information Journal Edition 2.