The Freedom of Information Act exemptions and the public interest test
The remaining sections of the Freedom of Information Act 2000 (the “FOIA”) come into force in January 2005 and individuals will have a general right of access to information (the right to know) held by public authorities. This right of access is actually two rights: first, the right to be informed by a public authority whether it holds information (the duty—on the authority—to confirm or deny), and second, the right to have that information communicated to the applicant. These rights are then subject to 25 exemptions, which are contained in Part 2 of the FOIA. Of those 25 exemptions, 17 are qualified by the requirement for the public authority to consider a “public interest test” (see table). One of the keys to the success of the FOIA will be the application by public authorities of this test.
Prejudice and the public interest test
Most of the exemptions only apply to the extent to which some harm—or in the terminology of the FOIA “prejudice”—would result if the exemption were not available. Therefore, a public authority must not only decide which exemption is most relevant, but also go on to consider whether any harm or prejudice would result if the information were not protected. The most important ramification of this is that prejudice-based exemptions will not cover whole classes of information and it is likely that at least part of the information requested must be revealed (see table).
Exemptions under Part 2 of the Freedom of Information Act 2000
|Section||Title||Qualified or Absolute Exemption|
Prejudicial exclusion of information
|21||Information accessible by other means||A||No|
|22||Information intended for future publication||Q||No|
|27||Relations within the UK||Q||Yes|
|29||Investigations by public authorities||Q||No|
|34||Formulation of government policy||Q||No|
|35||Prejudice to effective conduct of public affairs||Q/A*||Yes|
|36||Communications with Her Majesty and honours||Q||No|
|37||Health and safety||Q||Yes***|
|40||Information provided in confidence||A||No|
|41||Legal professional privilege||Q||No|
|43||Prohibitions on disclosure||A||No|
*This exemption is absolute insofar as it applies to information held by the House of Commons and the House of Lords.
**The absolute exemption applies to s.40(1), and s.40(2) insofar as it relates to cases where the first condition (set out in s.40(3)(a)(i) or (b)) is satisfied.
***The harm in s.38(1) is endangerment.
****This exemption is class-based insofar as the information constitutes a trade secret s.43(1).
Public interest test
Exemptions in the FOIA are categorised as either “absolute” or “subject to the public interest test” (commonly called “qualified”). For qualified exemptions, the public interest test states that a public authority must consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information. As this test applies to the majority of exemptions under the FOIA, public authorities will have to learn how to apply the test in practice.
The public interest
The FOIA does not define the public interest, preferring instead to allow for flexibility in the interpretation of what the public interest is, depending on changing times and circumstances. This is in line with freedom of information legislation in other countries such as Canada and Australia.
It should be noted that the test states that the public interest in not disclosing information must outweigh the public interest in disclosing the information (or that the public authority holds the information). Therefore, if in determining the balance the two interests are the equal, the information should be disclosed.
At this point it is also a matter of debate as to what counts as the public. Does this mean all of the public, a section of the public or an individual member of the public? In other jurisdictions, the term has been interpreted as having a geographic or numeric sense but it has also been considered to potentially apply to a single individual. Thus, it seems that “the public” may vary depending on the circumstances.
Information Commissioner’s Guidance
To help public authorities in the application of the public interest test, the Information Commissioner (the “IC”) has produced a series of awareness and guidance notes, which can be found on the . discusses the public interest test and gives some examples. The IC notes that it is difficult to give clear guidance on this test but does give some factors that public authorities should consider or ignore (see box).
Weighing the public interest
Factors to be considered
Assisting in public debate
Ensuring accountability and openness in decisions
Ensuring accountability and transparency in spending
Allowing individuals and companies to understand and challenge decisions that affect them
Ensuring prompt disclosure of public health and public safety information
Factors to be ignored
- Potential embarrassment of the government
- The complexity of the information
These factors are mostly gleaned from research commissioned by the IC in August 2003 from UCL’s Constitution Unit (). The research looks at decisions of the UK Parliamentary Ombudsman under the . This non-statutory Code has been in operation since 1994 and includes its own public interest test. An analysis of the Parliamentary Ombudsman’s decisions between 1994 and 2002 showed that the public interest was considered in 21 out of 106 decisions. In approximately 66% of those cases, the public interest did not outweigh the potential harm caused by disclosure and the information was withheld.
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 there is a requirement to consider the public interest, the tests have different wordings and emphasis. In addition, as in England and Wales, the public interest test is very context specific and so where a topic is of great interest in one country, it may be of little or no relevance in another.
Despite the obvious importance of the public interest test to the application of the FOIA, it is difficult to provide general guidance on how to apply the test. The test is very context specific and whether information is disclosed or not will depend on the timing of the request and what is already in the public domain. What is clear is the determination to change the culture of Government from the need to know to the right to know. In shifting the balance in favour of greater openness, the public interest test will be an important factor.
This article is based on an earlier article published by Hazel Grant in Volume 1, Edition 2 Freedom of Information Journal (). To read the article, please click here.