A general introduction to exemptions, including guidance on definitions of absolute and qualified exemptions and how they can be applied.
There are 23 exemptions in the Freedom of Information Act under which a request for information may be refused. The exemptions are set out in Part 2 of the Act.
The Freedom of Information Act exemptions are varied in their form and in their effect, so where an exemption applies you will need to consider carefully whether the information should be withheld.
For example, some of the exemptions have the effect that the information should be considered under the provisions of another piece of legislation (see for example the section dealing with environmental information). Others apply only to information to the extent that it is held by particular bodies - but it may be disclosable if held by other bodies. Some work by making the Act subject to legal prohibitions on the disclosure of information set out in other legislation; some apply to information of a particular description; others focus on the effects of disclosure.
Absolute and qualified exemptions
Some exemptions are 'absolute', that is, if the exemption applies then there is no obligation under the Freedom of Information Act to release the requested information (although there may be scope, or obligations, for other reasons outside the Act to do so).
For other exemptions, public authorities are required to assess the balance of the public interest for and against disclosure. These exemptions are often referred to as 'qualified', because they do not justify withholding information unless, on a proper assessment, the balance of the public interest is against disclosure.
The absolute exemptions are listed in section 2(3) of the Freedom of Information Act. They include some exemptions designed to place the disclosure of information entirely within the ambit of separate access regimes (for example, the Data Protection Act 1998, or the procedures for disclosing court records) or subject to the control of a separate body (for example Parliament or the courts). Some make the freedom of information right of access subject to existing legal prohibitions on disclosure (for example under the law of confidence or under statute or by reason of European law).
However, most of the exemptions are subject to a test of the balance of public interest as set out in section 2(1)(b) and 2(2)(b) of the Act. This means that it is not sufficient to establish that the information falls within the terms of the exemption. It is necessary to consider whether the public interest, in all of the relevant circumstances of the particular case, requires the information to be released or withheld. For more information, see the public interest test.
Duration of the exemptions
Most of the exemptions are time limited. Part VI of the Freedom of Information Act makes provision for many of the exemptions to expire in relation to information held in certain records, often when those records become 30 years old.
Applying more than one exemption
Because the exemptions take many different forms (sometimes focusing on the content of the information, sometimes on who is handling it, and sometimes on the effect of its disclosure), and because the interests they protect are usually broadly defined, there is considerable potential for overlap.
There will often be scope for more than one exemption to apply to information which it is not in the public interest to release. You can cite more than one exemption (except in the specific cases outlined below) when responding to an information request if you decide to withhold the information. The overlap of qualified exemptions will often indicate the relevance of several dimensions of the public interest which ought to be taken into account in considering whether to disclose the information. You must ensure that each exemption relied upon is satisfied on its own terms.
Certain exemptions cannot be applied together
In a very few places, the Act specifically provides that certain exemptions cannot apply simultaneously to information for example:
- section 24(1) (national security) does not apply to information already exempt under section 23(1) (information supplied by or relating to a security body)
- section 31 (law enforcement) does not apply to information which is already exempt under section 30 (investigations and proceedings)
- section 36(1) (prejudice to the effective conduct of public affairs) does not apply to information which is already exempt under section 35 (formulation of government policy, and so on).
All these interrelationships are explained in the relevant sections of the detailed exemptions guidance.
In some cases, although no express provision is made, there will be a clear implication that certain exemptions cannot be applied simultaneously. This is particularly noticeable where, for example, the structure of the Act makes it unlawful to disclose certain information, but a qualified exemption could also apply to that information. Clearly, if there is no possibility of lawful disclosure of the information, it is not appropriate to consider at large the public interest in disclosure. So where a statutory bar to disclosure exists, the information will be exempt under section 44. It may be that other (perhaps qualified) exemptions apply but need not be considered. This may also be the case where the effect of an exemption is to require a request to be considered under a separate access regime such as the Environmental Information Regulations.
Citing exemptions in the alternative
In cases where it is impossible to rely on the specified exemptions at the same time. Where it is not clear that one or the other exemption applies, that is, there is room for debate as to which would be the more suitable, the exemptions may be relied on in the alternative. For example, it is possible to claim that information falls within the scope of section 35 (formulation of government policy etc), but that if the Information Commissioner concludes that this is wrong, nevertheless release of the information would have one of the effects set out in section 36 (prejudice to effective conduct of public affairs) and it is therefore exempt under that section.
Exemptions engaging separate access regimes
Several exemptions make reference to separate legislation, and apply the rules of those pieces of legislation (complete with their exemption provisions) to the information in question.
The most important access regimes set up under other pieces of legislation are the Environmental Information Regulations 2004 (EIRs) and the Data Protection Act 1998; these are dealt with in sections 39 and 40 of the Freedom of Information Act. In each case the application and interpretation of those regimes is affected by the fact that both implement EU Directives.
Chapter 3 of the procedural guidance considers the practicalities of dealing with requests for information which in whole or in part require decisions to be made in accordance with the EIRs or Data Protection Act regimes. It also explains where further guidance specific to those regimes may be obtained.
Exemptions that depend on the effect of disclosure
The application of some exemptions depends on the effect, or likely effect, of disclosure. They may, for example, provide that information is exempt if its disclosure would, or would be likely to, prejudice certain matters. An example is section 36 - prejudice to effective conduct of public affairs.
In evaluating the effect of a disclosure, it will be necessary to consider the full context of that disclosure, and to make what is, in essence, a risk assessment. It should, in particular, be borne in mind that a public authority may have very little control over information once it is disclosed, and that the effect on which the exemption turns may be achieved in a number of direct or indirect ways, including:
- the combination of that information and other information with which it may be linked or
the risk it produces that certain action will be taken, or events take place, as a result of it.
- The assessment which needs to be made is, in all the circumstances, how likely the prejudicial effect is to happen, how much or how serious the prejudice might be, and how close to (or remote from) the disclosure the effect would be.
It is also, however, necessary to consider to what extent the risk in question is one which is to any degree under the public authority's own control. If an authority could, itself, reasonably prevent or diminish the risk, or limit the effect, it will be expected to consider that as part of the disclosure decision. It may, for example, be able to put the disclosure in an explanatory context, or consult others who might be affected, or take straightforward preventative action. What may be reasonable will depend on the circumstances of the case.
Most of the exemptions that depend on the effects of disclosure are qualified by reference to the balance of the public interest for and against disclosure. The likely effects of the disclosure will usually trigger the application of the exemption. It will then be necessary to consider the likelihood, nature and magnitude of the effect within the context of the public interest as whole.
As a general rule, a more minor, remote or speculative risk will weigh lighter in the balance against the public interest in disclosure - but it should always be borne in mind that the interest prejudiced may itself be so fundamental or important that very little risk ought reasonably to be taken. Again, it is imperative that all relevant considerations be carefully weighed in the circumstances of each case. For more information about the public interest test, see the public interest test.
Ministerial and other certificates
Some of the exemptions make provision for a certificate to form part of the process of relying on an exemption. For example:
- section 23(2) and section 24(3) provide for a Minister to certify that the exemption applies, and for such a certificate to be conclusive evidence that it does
- section 34 and section 36(7) provide that a certificate signed by the Speaker of the House of Commons or the Clerk of the Parliaments, as appropriate, is conclusive evidence that the parliamentary privilege exemption or the relevant part of the exemption relating to prejudice to public affairs applies.
In these cases, the certificates are never in themselves necessary prerequisites to relying on the exemption or to taking the decision to refuse disclosure. However, they can form a very important part of the subsequent process of defending such a decision if necessary. They are considered further in the guidance on the relevant section.
General provision is also made by section 53 for a minister to certify that an exemption applies. Such a certificate can only be prepared, however, in response to enforcement action by the Information Commissioner, and is considered below in that context.
Where the Information Commissioner has issued a Decision Notice or an Enforcement Notice, section 53 enables a Cabinet Minister, in certain circumstances, to 'veto' the notice, meaning that it ceases to have effect.
The veto may be applied in any case where the Decision Notice or Enforcement Notice finds that the public authority:
- wrongly found that the public interest in confirming or denying that information was held favoured denial or
- wrongly found that the public interest in withholding or disclosing information favoured withholding.
The veto will only apply where the Minister certifies that he or she has, on reasonable grounds, formed the opinion that there was no failure in respect of those matters.
This power does not arise until the Information Commissioner has issued a decision and should only be exercised after extremely careful consideration of the wider implications of doing so. It should be noted that:
- the Act requires the Minister to inform the requestor of the reasons for his or her decision
- a copy of the certificate must be laid before Parliament
- Government has decided that this power should be used collectively by Cabinet
- use of the veto will be subject to challenge by judicial review by the courts.
The veto will only be a possibility in very exceptional circumstances; the MoJ Freedom of Information Policy Team: firstname.lastname@example.org should be informed immediately of any case where use of the ministerial veto is being considered. For more information on the Information Commissioner see the procedural guidance