The Freedom of Information Act 2000 (the “FOIA”) is not an absolute right of access to information held by public authorities. The inclusion of a number of exemptions establishes that, in certain circumstances, the duty on a public authority to provide information will not apply. In this article we look at a number of the exemptions which protect information used to defend and govern the UK.
Security (ss23 &24)
There are two closely linked and inter-dependent exemptions relating to security in the FOIA, which are set out in sections 23 and 24.
Section 23 provides the starting point, establishing that:
“information held by a public authority is exempt if it was directly or indirectly supplied to that public authority by, or relates to”,
any of a list of security services bodies including the Security Service, Secret Intelligence Service, Government Communications Headquarters and the special forces. These bodies are not public authorities themselves for the sake of the FOIA, so it is only where they have supplied information to public authorities that this exemption will be applicable.
This exemption will apply to information directly supplied by one of the security bodies and information indirectly supplied or simply relating to one of the security bodies. If the application of the exemption turns on whether the information ‘relates’ to the security bodies it may apply to a range of information, from operational to administrative. Therefore it may not always be clear whether the information ‘relates’ to security bodies. This could especially be the case with aggregated information or reports to which the security services have contributed.
Section 23 is an absolute exemption, meaning there is no need to consider the public interest in disclosure. If the necessary definition is satisfied, the exemption will apply.
In contrast, s.24 is a qualified exemption so the public interest in disclosure must be considered. Section 24 can only apply to information which is not already exempted under s23. Under s.24 information is exempt if it ought not to be released in the interests of safeguarding national security. The term ‘national security’ is not defined in UK legislation, although UK and EU courts have decided that a precautionary approach should be applied, i.e. decisions ought to aim to prevent harm and the risk of harm rather than just considering where harm has or will occur. Guidance issued by the Department of Constitutional Affairs (DCA) aims to clarify when s.24 will apply, giving insight into what constitutes national security. This includes that:
Security of the nation includes the well being and protection of its defence and foreign policy interests.
The nation refers not only to the territory of the UK but also to its citizens and assets, wherever they may be.
Terrorism, espionage, subversion and the pursuit of the Government’s defence and foreign policies are all expressly considered as areas relevant to national security.
Both ss23 and 24 contain an exemption from the duty to confirm or deny whether the authority holds the information and DCA guidance makes it clear that it will often be appropriate to use this exemption. Even where information is not held, it may be appropriate to use these exemptions, if to confirm that information is not held, would affect national security.
Again, under both ss23 and 24 a Cabinet Minister or the Attorney General may issue a certificate to the effect that the exemption applies. Such a certificate will be conclusive evidence of the application of the exemptions subject to an appeal to a specially-constituted version of the Information Tribunal.
In the current political context where ‘terrorism’ and security related issues are high on the political agenda, it seems likely that public authorities may often consider it appropriate to take advantage of these exemptions.
Under s.26, information is exempt from disclosure if its disclosure would, or would be likely to prejudice the defence of the British Islands or of any colony, or, the capability, effectiveness or security of the forces.
In this context ‘defence’ is concerned with maintaining the ability to use military force in support of legitimate political objectives, in particular the protection of the UK. As a result it extends to self-defence measures as well as the taking of positive steps. The forces covered include both the armed forces of the Crown and any forces co-operating with the armed forces of the Crown. So, if the capability, effectiveness or security of a UN, EU, or NATO contingent acting with UK forces were at risk as a result of the disclosure of information, the exemption would apply.
The s.26 exemption is a qualified one. A public authority will therefore have to assess whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
There are a broad range of disclosures with the potential to prejudice UK defence matters. In addition, at times of perceived tension or conflict, the disclosure of certain information may be more likely to fall within this exemption. DCA guidance explains that attention must be given both to the kind of harm that could result from disclosure and the risk of that harm materialising.
This exemption is one which requires not only “prejudice” but also that that prejudice “would or would be likely” to occur. DCA guidance states that for the exemption to apply, the chances of potential harm need not be probable but they must be “more than fanciful”. As the Information Commissioner puts it in his guidance on “would be likely”: the prejudice “need not be more likely not, but there should certainly be more than a remote possibility”. DCA guidance suggests the following factors should be taken into account when considering this: whether the information has a security classification, the source of the information, what other information is publicly available and the timing of the request.
As with the security exemption, when national and international security is in a state of flux, there will be greater scope to argue that the effect of releasing information would be to prejudice defence. In addition, use of the exemption from the duty to confirm or deny the existence of any information is likely to be considered frequently.
International / UK relations (ss27 &28)
The FOIA deals with exemptions for information related to international and UK relations in sections 27 and 28 respectively. In both cases, if the exemption applies the public authority will not need to comply with the duty to confirm or deny the existence of the information.
The exemption in s.27 exists to protect the UK’s international relations, interests abroad and ability to protect and promote those interests. It contains two types of exemption.
The first (s.27(1))is concerned with the effects of disclosure. Accordingly, this applies to information which, if disclosed would be likely to prejudice:
relations between the UK and any other state, or any international organisation or court;
the interests of the UK abroad; or
the promotion or protection by the UK of its interests abroad.
The second (s.27(2)) is concerned with the origin of the information and the circumstances in which it was obtained. It applies to confidential information obtained from a state other than the UK, an international organisation or international court. This exemption is relevant so long as the terms on which the information was supplied require it to be supplied in confidence, or while the circumstances in which it was obtained make it reasonable to expect that it would be held in confidence. The DCA has considered this exemption in one of its “working assumptions” papers, which states that there should be consultation with the other state or organisation if there is any doubt about the status of the information, but that the working assumption is that confidential information will be withheld.
The UK’s interests abroad and so the extent of this exemption may be concerned with a broad range of matters and the interests pursued and the manner in which they are pursued will vary with the passage of time. For example, relevant interests could include the environment, combating terrorism, trade and human rights, and the way in which these interests are pursued may vary from being the subject of diplomatic exchanges to the subject of informal conversations. It is believed that this exemption has also been used to protect information which relates to complaints about the UK to the European Commission.
Relations within the UK are considered by s.28. It applies where the release of information would or would be likely to prejudice relations between two administrations within the UK. ‘Administrations’ are understood to include the UK Government and the devolved administrations of Scotland, Northern Ireland and Wales.
In either of the above scenarios, the public interest test must be applied before any information may be withheld under an exemption.
Information will be exempt from disclosure under the FOIA if it falls within s.29, which relates to information that if disclosed would or would be likely to prejudice the economic interests of the UK or any part thereof, or the financial interest of any administration in the UK.
Economic and financial interests both cover a potentially broad range of areas. Information about economic interests of the UK or a part of it might include details of domestic tax policies, international loan programmes and specific firms from a regulatory perspective. Financial interests of an administration in the UK could include details of Government banking arrangements, intended investment strategies and contract details of PFI and PPP deals.
In either case the exemption is prejudice based, meaning it will only apply if the interests would, or would be likely to be prejudiced by disclosure. In addition, disclosure of information is also subject to the public interest test.
This exemption may interact with numerous other exemptions within the FOIA, including those related to international relations (s.27), formulation of government policy (s.35), commercial interests (s.43) and information that may not be disclosed as the result of any enactment (s.44).
Parliamentary privilege (s.34)
The exemption for information covered by parliamentary privilege is set out at s.34 of the FOIA. Its aim is to preserve the right of Parliament to regulate its own proceedings and to control the publication of its proceedings. There is an absolute exemption for information, the disclosure of which might infringe the privileges of either House of Parliament. This exemption could apply to committee reports or drafts or internal papers which would not otherwise be published.
For the sake of the FOIA the Houses of Commons and Lords are ‘public authorities’. However, individual members of either House are not, so will not be subject to the disclosure requirements of the FOIA.
Formulation of government policy (s35) and prejudice to effective conduct of public affairs (s36).
Again these are two inter-dependent exemptions. S35 applies to information held by a government department which relates to the formulation of government policy, ministerial communications or receipt of advice from the Law Officers.
Information which is not protected by s35 may be protected under s36 where its disclosure would or would be likely to:
prejudice the convention of collective responsibility of ministers;
inhibit the free and frank provision of advice; or
otherwise prejudice the effective conduct of public affairs.
These are likely to be very significant exemptions for the day to day work of public servants. For further information on these exemptions see [FOIJ: please add cross reference].
Communications with the Crown (s37)
At s.37, the FOIA provides a qualified exemption for information that relates to
i) communications with Her Majesty, the Royal Family or the Royal Household; or
ii) the conferring by the Crown of any honour or dignity.
Rather than applying to all information relating to Her Majesty, the Royal Family or the Royal Household, this is only concerned with information relating to communications so this could include correspondence, agendas, minutes of meetings or drafts or other material sent to the Royal Household for approval. Other information will not be exempted by s37 but may be exempt by virtue of other parts of the FOIA, for example s31 (law enforcement), s38 (health and safety) or s40 (personal information).
It is important to remember that the FOIA does not apply directly to Her Majesty, the Royal Family or the Royal Household, as they are not within the definition of a public authority. Therefore, this exemption is only relevant where the information requested is held by a public authority on the Royal Household.
‘Royal Household’, not defined by the FOIA, should be taken to include those individuals authorised to act on behalf of a member of the Royal Family in fulfilment of their public, official and constitutional roles. The DCA guidance includes an indicative list of members of the Royal Household.
In this article we have briefly reviewed some exemptions which will be very significant for the operation of government in the UK. No doubt we will see some case law on some of these exemptions since the material which may be requested is likely to be of particular interest to the media. We will watch this space!
First published in the Freedom of Information Journal, Vol 1, Issue 6, July/August 2005.