Exemptions and the Public Interest Test Louise Townsend - Masons.

Exemptions and the Public Interest TestLouise Townsend - Masons

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Overview

Why are there exemptions? Absolute and Non-absolute exemptions Prejudice and class exemptions Public interest test

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Why are there exemptions?

Information available already e.g. Publication schemes, EIRS, DPA

Access to information prohibited e.g. By statute, contempt of court

To protect particular interests e.g. National security, law enforcement etc.

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Absolute and Non-Absolute Exemptions

Absolute - No public interest test, the exemption can be applied if the information fits within it.

Non-absolute – Application of the public interest test.

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Public interest test

“In all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”.

= for information to be withheld, the public interest must be greatest in the interest protected by the exemption: the Act is designed to favour disclosure.

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Prejudice and Class Exemptions

Some exemptions refer to an interest being prejudiced or being likely to be prejudiced Not defined – a possibility of harm?

NB – substantial prejudice in Scotland

“real, actual and of significant substance”. Others are class exemptions

Designed to give protection to all information falling within a particular category.

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Exemptions

Information reasonably accessible to the applicant by other means (including on payment)

S21 – ABSOLUTE

Information intended for future publicationS22 – NON-ABSOLUTE

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Exemptions

Information supplied, or relating to, bodies dealing with security matters

S23 – ABSOLUTE

National securityS24 – NON-ABSOLUTE

NB - National security certificates

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Exemptions

DefenceS26 – NON-ABSOLUTE

International relationsS27 – NON-ABSOLUTE

Relations within the UKS28 – NON-ABSOLUTE

The economyS29 – NON-ABSOLUTE

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Exemptions

Investigations and proceedingsS30 – NON-ABSOLUTE

Law enforcementS31 – NON-ABSOLUTE

Court recordsS32 – ABSOLUTE

Audit functionsS33– NON-ABSOLUTE

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Exemptions

Parliamentary privilegeS34 – ABSOLUTE

Formulation of government policyS35 – NON-ABSOLUTE

Prejudice to effective conduct of public affairsS36 – ABSOLUTE (for information held by Parliament)

NON-ABSOLUTE (for other authorities)

Communications with Her Majesty & honoursS37 – NON-ABSOLUTE

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Exemptions

Health and safetyS38 – NON-ABSOLUTE

Environmental informationS39 – NON-ABSOLUTE

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Exemptions

Personal information About the applicant

The Data Protection Act 1998 applies (subject access provisions)

Definition of data extended to cover all data Amended subject access rules New subject access exemption for personnel data

S40 – ABSOLUTE

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Exemptions

Personal information about someone other than the applicant

FOIA applies Would disclosure breach the data protection

principles? (ABSOLUTE) Is there a subject access exemption? (NON-

ABSOLUTE) Has a section 10 DPA objection been lodged?

(NON-ABSOLUTE)

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Exemptions

Information provided in confidenceS41 – ABSOLUTE

Legal professional privilegeS42 – NON-ABSOLUTE

Commercial interestsS43 – NON-ABSOLUTE

Prohibitions on disclosureS44 – ABSOLUTE

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Public interest test

the public interest in disclosure must be considered in every case where a non-absolute exemption applies & for EIR disclosures

the public interest protected by the exemption will vary with each exemption

“in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”.

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Public interest – common factors

Transparent and open decision making Accountability of decision makers Financial probity Absence of bias Integrity of judicial process Adherence to natural justice The general public interest in openness

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Public interest – specific factors

Health of the population and/or individuals Economic management Prosecution of offenders

- Factors must be considered on a case by case basis but a policy may be possible

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Public interest – not relevant

embarrassment to the authority/employee the applicant may misunderstand the

information incomplete information loss of confidence in the authority

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Summary

There are a number of exemptions which limit the extent of an authority’s duties

There are two types of exemption – absolute and non-absolute

Non-absolute exemptions require the public interest test to be applied

In most cases, even if an exemption applies, the authority will have to confirm or deny whether it holds the information

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Practical Issues

When creating or reviewing material, consider whether an exemption may be applicable.

Consider document templates Who will determine exemptions to ensure

consistency? Consider refusal process Complaints procedures Record keeping of requests and refusals How will the exemptions be applied?