Exemptions Under Freedom of Information Act
Whilst the Freedom of Information Act provides for the right of access to information held, it also affords a number of exemptions from this right in order to permit public authorities to withhold some or all of the information requested where a justifiable reason exists.
The exemptions fall into two categories:
- Those that are absolute exemptions where the Council may withhold the information without considering any public interest arguments; and
- Those that are qualified i.e. that, although an exemption may apply to the information it will nevertheless have to be disclosed unless the public interest in withholding the information is greater than the public interest in releasing it.
In respect of the absolute exemptions, the Council does not have to confirm or deny that it holds the information if to do so would in itself provide exempt information.
The absolute exemptions that are most likely to apply to the Council are:
- Information which is reasonably accessible by another means, i.e. through the Council’s Publication Scheme or via existing access regimes (Section 21)
- Court records (Section 32)
- Personal information relating to the person making the request. Such requests will continue to be dealt with under the Data Protection Act 1998 (Section 40(1))
- Personal information about a third party where disclosure of that information would contravene the data protection principles contained in the Data Protection Act1998 ( Section 40(2))
- Information provided in confidence – this exemption only applies to information where disclosure would result in an actionable breach of confidence (Section 41)
- Information that is prohibited from disclosure by law (Section 44)
The qualified exemptions most likely to apply to the Council are:
- Information intended for future publication (Section22)
- Investigations/proceedings conducted by public authorities (Section 30)
- Law enforcement (Section 31)
- Prejudice to the effective conduct of public affairs (Section 36)
- Health & Safety (Section 38)
- Environmental Information (Section 39)
- Personal information relating to a third party (Section 40) as mentioned above
- Legal professional privilege (Section 42)
- Commercial interest (Section 43)
A full list of the exemptions under the Act is available from the Information Commissioner’s website.
The Public Interest Test
The public interest test requires that information should be withheld under exemption if, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.