Ministry of Justice

Summaries of exemptions

A summary of all the exemptions, highlighting the key issues specific to each one.


Section 21: information accessible by other means

Section 21 exempts information that is already reasonably accessible to the applicant by other means.

Key points

  • The question to be asked is whether the information is reasonably accessible to the applicant: public authorities need to be alert to any attributes of an individual applicant which may mean that information is more or less accessible to him or her than it is to the public at large.
  • Section 21 may apply even if a fee is charged for supplying the information.
  • Where information is exempt under section 21, the Act does not allow a public authority to 'neither confirm nor deny' that fact.
  • Section 21 is not subject to any public interest test.

Section 22: information intended for future publication

Section 22 exempts information requested by an applicant if it is intended for future publication.

Key points

  • Section 22 may apply even if the specific date for publication has not yet been determined, but the proposed publication timetable must be reasonable in all the circumstances.
  • Section 22 will only apply if a public authority has decided, before the request is received, to publish the information concerned.
  • Section 22 is subject to the public interest test.

Section 23: information supplied by, or related to, bodies dealing with security matters

Section 23 exempts information received from, or related to, the security bodies listed at section 23(3) of the Freedom of Information Act. This includes the Security Service, the Secret Intelligence Service, Government Communications Headquarters and the Serious Organised Crime Agency.

Key points

  • It will often be appropriate to 'neither confirm nor deny' that the requested information is held, as the fact that a public authority does or does not hold information supplied by one of the security bodies can itself be information relating to those bodies.
  • The interaction between section 23 and section 24 (national security) is complex and needs to be considered carefully in order to ensure that the relevant public interests are protected.
  • Section 23 is not subject to any public interest test.
  • A ministerial certification procedure exists where it becomes necessary to rely on this exemption.

Section 24: national security

The section 24 exemption applies to information that must not to be disclosed in order to safeguard national security.

Key points

  • To apply section 24, it will be necessary to decide whether any harm to national security might result from disclosure of the requested information.
  • Section 24 guidance should be read together with the section 23 guidance when contemplating withholding information on grounds related to national security.
  • In some circumstances it may be appropriate to 'neither confirm nor deny' whether the requested information is held.
  • Section 24 is subject to a public interest test.  A ministerial certification procedure exists where it becomes necessary to rely on this exemption.

Section 26: defence

Section 26 applies to information where disclosure would be likely to prejudice:

  • the defence of the British Islands or any colony
  • the capability, effectiveness or security of the armed forces of the Crown or any forces co-operating with them

Key points

  • To apply section 26 it will be necessary to establish how exactly defence matters would be prejudiced by disclosure of the information.
  • It will often be necessary to consult the Ministry of Defence in order to evaluate how and to what extent defence matters would be prejudiced by disclosure.
  • Section 26 is subject to the public interest test.
  • In some circumstances it may be appropriate to 'neither confirm nor deny' whether the requested information is held.

Section 27: international relations

Section 27 applies to the following two categories of information:

  • information whose disclosure would be likely to prejudice international relations
  • confidential information obtained from another state, an international organisation or an international court

Key points

  • Departments should consult the Foreign and Commonwealth Office in connection with the application of section 27.
  • Section 27 is subject to the public interest test.
    In some circumstances, section 27 may be used to 'neither confirm nor deny' that information is held.

Section 28: relations within the UK

Section 28 applies to information whose disclosure would be likely to prejudice relations between two or more administrations in the United Kingdom. The relevant administrations are the government of the United Kingdom, the Scottish Executive, the Executive Committee of the Northern Ireland Assembly and the Welsh Assembly Government.

Key points

  • Where necessary, regard should be made to the Memorandum of Understanding, agreed between the four administrations, which includes safeguards to ensure that information shared between administrations is appropriately protected.
  • Where appropriate, you should consider consulting the other administration(s) concerned when determining whether section 28 applies. Separate freedom of information legislation applies in Scotland.
  • Section 28 is subject to the public interest test.
  • You are not required to 'confirm or deny' whether the requested information is held if to do so would be likely to prejudice relations between UK administrations.

Section 29: the economy

Section 29 applies to information where disclosure would be likely to prejudice the economic or financial interests of the United Kingdom or of any administration in the United Kingdom.

Key points

  • Departments should consult with HM Treasury when considering this exemption.
  • Section 29 is subject to the public interest test.
  • Public authorities can 'neither confirm nor deny' whether they hold information, using section 29(3).

Section 30: investigations and proceedings conducted by public authorities

Section 30 is concerned primarily with preserving the integrity of certain proceedings and investigations conducted by public authorities. There are two ways in which the application of section 30 may be triggered:

  • where information has at any time been held for the purpose of specified criminal and other investigations or proceedings
  • where information relates to the obtaining of information from confidential sources and was obtained or recorded for specified investigations or proceedings.

Key points

  • Section 30 can only be relied on by an authority which itself exercises one of the investigation or litigation functions that are specified in the exemption.
  • Section 30 is closely linked to section 31 (law enforcement). The two exemptions cannot apply to the same information and it is important that the correct exemption is applied.
  • Section 30 is subject to the public interest test.
  • It may be necessary to 'neither confirm nor deny' that requested information is held, as the success of an investigation can often depend on ensuring that information is not disclosed prematurely.

Section 31: law enforcement

Section 31 is concerned with protecting a wide range of law enforcement interests and its application turns on whether disclosure would be likely to prejudice those interests.

Key points

  • Section 31 only applies in cases where the information does not fall within section 30.
  • The structure of section 31 is complex and it will be necessary to give careful consideration to the important differences in which the various categories of information are framed.
  • The categories within section 31 may overlap and consideration should be given to all categories that may apply.
  • Section 31 is subject to the public interest test.

Section 32: court records

Section 32 exempts information contained in particular types of litigation documents and court, tribunal and inquiry records, and will apply regardless of the content of the information. There are separate and specific regimes for gaining access to court and tribunal records and section 32 ensures that the Freedom of Information Act does not supersede those regimes.

Key points

  • Section 32 will apply only if the public authority concerned holds the information solely because it was contained in one of the specified documents.
  • The application of section 32 is not subject to any public interest test.

Section 33: audit functions

Section 33 can only be used by public authorities which have audit functions in relation other public authorities or whose functions include examining the efficiency, effectiveness and economy with which other public authorities use their resources. Section 33 applies to information whose disclosure would be likely to prejudice the exercise of these audit functions.

Key points

Section 33 only applies where a public authority has audit or monitoring functions in relation to another public authority. It does not apply where a public authority has such functions in relation to private sector bodies, nor does it cover internal audit and monitoring.

  • Section 33 can only be claimed by the department carrying out the audit.
  • Section 33 is subject to the public interest test. 
     

Section 34: parliamentary privilege

Section 34 applies to information where disclosure would be an infringement of the privileges of either House of Parliament.

Key points

  • Section 34 needs to be considered where a public authority is required to lay information before Parliament before disclosing it to anyone else.
  • If privileged information has been published by Parliament then section 34 will not apply.
  • Section 34(3) enables the parliamentary authorities to conclusively certify that section 34 applies. Departments are strongly advised to consult officials from the relevant House before claiming exemption under section 34 and to obtain a certificate where necessary.
  • Section 34 is not subject to any public interest test.

Section 35: formulation of government policy

Section 35 is aimed at protecting the government policy-making process in order to maintain the delivery of effective government.

Section 35 applies to information that 'relates to':

  • the formulation and development of government policy
  • communications between ministers (including Cabinet proceedings)
  • the provision of advice by the Law Officers (or any request for advice)
  • the operation of any ministerial private office

Key points

  • Section 35 can only be used by government departments (including a Northern Ireland government department) or the Welsh Assembly government.
  • Section 35 is closely related to section 36, which protects the effective conduct of public affairs. However, the two exemptions cannot apply to the same information, although they can be cited in the alternative.
  • Section 35 is subject to the public interest test.
  • Given the wide range of section 35, you should be particularly mindful of the need to consult interested departments.

Section 36: prejudice to effective conduct of public affairs

Section 36 relates to information that if disclosed would adversely affect the delivery of effective central government and other public services. Section 36 exempts information whose disclosure would be likely to:

  • prejudice collective Cabinet responsibility
  • inhibit the free and frank provision of advice and exchange of views for the purposes of deliberation
  • prejudice the effective conduct of public affairs

Key points

  • Section 36 requires a determination by a 'qualified person' that disclosure of the requested information would have one of the specified prejudicial effects. For most government departments, this means a minister.
  • Section 36 can only be used if section 35 does not apply to the information.
  • Section 36 is subject to the public interest test.

Section 37(1)(a): communications with Her Majesty, with other members of the Royal Household

Section 37(1)(b): the conferring by the Crown of any honour or dignity

Section 37 applies to two categories of information:

  • information relating to communications with Her Majesty, other members of the Royal Family or the Royal Household
  • information relating to the conferring by the Crown of any honour or dignity.

Key points

  • It is a fundamental constitutional principle that communications between the Queen and the government are essentially confidential in nature. In only the most exceptional situations will the public interest in disclosure outweigh the public interest in maintaining the exemption for this type of information.
  • In respect of both parts of this exemption, public authorities should be mindful of the need to consult relevant departments or private offices.
  • Section 37 is subject to the public interest test.
  • Where section 37(2) applies there is no obligation under section 37(1)(a) or 37(1)(b) to confirm or deny whether or not the information requested is held.

Section 38: health and safety

Section 38 applies to information whose disclosure would be likely to endanger the physical or mental health or the safety of any individual.

Key points

  • The individual concerned does not have to be identifiable: section 38 can apply where there is a group or class of persons.
  • Section 38 is subject to the public interest test.
  • It may be appropriate to 'neither confirm nor deny' whether the requested information is held, if confirming whether or not information is held would itself risk endangering the health or safety of any person.

Section 39: environmental information

Section 39 exempts environmental information whose disclosure must be considered under the Environmental Information Regulations 2004: a specific regime to enable individuals to access environmental information, which includes its own exceptions from that right of access.

Key points

  • If information is environmental information and is exempt under section 39, public authorities must consider its disclosure under the Environmental Information Regulations 2004.
  • All the exceptions in the EIRs are subject to a public interest test.

Section 40: personal information

Section 40 concerns personal data within the meaning of the Data Protection Act 1998. Section 40 applies to:

  • requests for the personal data of the applicant him or herself
  • requests for the personal data of someone else (a third party)

Key points

  • When an individual asks for his or her own personal data under the Freedom of Information Act, this should be treated as a 'subject access request' under the Data Protection Act. Requests for one's own data are exempt under section 40(1) of the Freedom of Information Act. This is an absolute exemption. The applicant should be advised of the procedure for making a subject access request.
  • In most circumstances, for requests for the personal data of a third party (someone other than the applicant), the application of section 40 will turn on whether disclosure of the information to a member of the public would be 'fair', under the Data Protection Principles in the Data Protection Act.
    • Officials should consult experts where the application of section 40 is difficult or unclear: getting a decision wrong may result in a breach of the Data Protection Act 1998.

Section 41: information provided in confidence

Section 41 provides an exemption to the right of access if the requested information was provided to the public authority in confidence.

Key points

  • Section 41 will only apply where a person would be able to bring a successful legal action for breach of confidence as a result of disclosure.
  • Section 41 is not subject to the public interest test, but the courts have recognised that a person will not be successful in an action for breach of confidence if the public interest in disclosure outweighs the public interest in keeping the confidence.
  • The application of section 41 may require detailed consideration of the law of breach of confidence: legal advice will often be necessary.

Section 42: legal professional privilege

Section 42 applies to information that would be subject to legal professional privilege if litigation were in progress. Legal professional privilege covers confidential communications between lawyers and clients and certain other information that is created for the purposes of litigation. Section 42 ensures that the confidential relationship between lawyer and client is protected.

Key points

  • Whether information is subject to legal professional privilege is a question of law and it will very often be necessary to consult legal advisers in connection with this.
  • Advice from the Law Officers is also governed by section 35 and the Law Officers should be consulted where their advice is the subject of a request.
  • Section 42 is subject to the public interest test. However, given the very substantial public interest in maintaining the confidentiality of legally professionally privileged material, it is likely to only be in exceptional circumstances that this will be outweighed by the public interest in disclosure.

Section 43: commercial interests

Section 43 exempts information where disclosure would be likely to prejudice the commercial interests of any person. It also includes a specific exemption for trade secrets.

Key points

  • Section 43 protects not only the commercial interests of third parties but also the commercial interests of the public authority that holds the information.
  • Public authorities will need to bear in mind that the commercial sensitivity (particularly the market sensitivity) of information will usually decrease with time.
  • Section 43 is subject to the public interest test.

Section 44: prohibitions on disclosure

Section 44 applies to three distinct categories of information:

  • if there is an existing statutory bar to the disclosure of information by a public authority then that information will be exempt
  • if disclosure would be incompatible with a European Community obligation then the information will be exempt
  • if disclosure would constitute or be punishable as a contempt of court at common law (for example because it would breach a court order) then it will be exempt.

Key points

  • The Human Rights Act 1998 can be a statutory bar to the disclosure of information if to do so would breach one of the Convention rights that have been incorporated into domestic law.
  • Section 44 is not subject to any public interest test.
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