Scottish Government

SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK

MODULE 12
EXEMPTIONS FROM THE RIGHT OF ACCESS - CAN INFORMATION ALWAYS BE ACCESSED? PART 1 OVERVIEW

12.1 CONTENT AND LEARNING OBJECTIVES

This module gives an introduction to the exemptions in FOISA. It explains some of the main reasons for exemptions and looks at the different kinds of exemptions which can apply, how long exemptions may apply for and how to refuse a request if an exemption applies.

Modules 16 and 17 deal with the data protection exemptions in more detail and Module 11 deals with the exemption for environmental information.

The next two modules set out the exemptions in the order in which they are set out in the Act. There is not necessarily any clear reason why the exemptions are set out in this order in the Act and therefore you are advised to understand the concepts introduced in this module thoroughly before looking at the exemptions in more detail. This should help you to understand how each specific exemption applies.

Once you have worked through this module you should understand

• Some of the reasons for exemptions
• The difference between absolute and non-absolute exemptions
• What substantial prejudice means
• What to think about when applying the public interest test
• How to refuse a request in reliance on an exemption
• How historical records are affected

SUGGESTED TIME ALLOCATION: 1 hour

12.2 LEARNING MATERIALS

12.2.1 Why are there exemptions?

However open a government or a public authority may wish to be, there will be some information which it cannot make public and therefore every access law contains exemptions. When considering exemptions it can sometimes be helpful to think first about why the exemption is there. Exemptions may be necessary for a number of reasons.

First, they may be necessary because information is already available by other means and so it would be inconsistent or unnecessarily complicated to have information available both under FOISA and elsewhere. An example of this is the exemption for personal data under the Data Protection Act 1998 - an individual already has a right of access to their own information so they do not need this right under FOISA.

Conversely, an exemption may be necessary because access is prohibited by other legislation and so it would again be inconsistent if an applicant were prohibited from accessing information elsewhere, only to be given it under FOISA. There is therefore an exemption in FOISA for information disclosure of which is prohibited by other legislation or where this would be incompatible with a European Community obligation or would be a contempt of court.

Exemptions are also necessary to protect particular interests. These may be the interests of the country as a whole, for example the exemption that relates to national security, or they may be the interests of a particular type of public authority, for example those that deal with law enforcement, or they may be the interests of third parties, for example the exemption that protects confidential information.

12.2.2 The difference between absolute and non-absolute exemptions

As we have seen above, information can be exempt from the obligation to give access on request because it is available under other rules or the authority is not legally entitled to give access. In those cases the exemption is an absolute exemption. This means that, as long as the information falls into the exempt category, the public authority does not have to disclose the information, nor does it have to consider the public interest test. The absolute exemptions are:

• section 25 - information otherwise accessible;
• section 26 - prohibitions on disclosure;
• section 36(2) - confidential information obtained from another person;
• section 37 - court records;
• parts of section 38 - in relation to personal data, for example where the applicant asks for personal data about themselves.

However, most exemptions are non absolute. In these cases the authority has to apply a two-stage test before it refuses the request:

• Does the information fall into an exempt class?

If the answer is yes

• Is the public interest in keeping it secret stronger than the public interest in making it public?

12.2.3 What does substantial prejudice mean?

Many of the exemptions only apply if the disclosure of the information would " prejudice substantially" some particular interest.

The term is not defined but it is clear that there must be some real possibility of serious harm arising to the interest to be protected before the test of substantial prejudice is met. The Freedom of Information Act 2000 that applies in the rest of the UK only refers to "prejudice" and therefore the test in Scotland for withholding information may be harder to meet, the result being that the scales are further tipped in favour of openness.

The draft section 60 Code suggests that the authority should consider disclosing the information unless the prejudice caused would be "real, actual and of significant substance".

12.2.4 What is the public interest test?

When a non-absolute exemption applies, the authority must apply the public interest test. It must decide whether the public interest in disclosing the information is outweighed by the public interest in withholding the information by claiming the exemption. Only then can it withhold.

There are a number of factors that can be considered of general application when considering what is in the public interest. Some suggestions are set out in the draft section 60 Code. These include:

"• The general public interest that information is accessible i.e. whether disclosure would enhance the scrutiny of decision making processes and thereby improve accountability and participation;
• Whether disclosure would contribute to the administration of justice and enforcement of the law or would prejudice the prevention or detection of crime or the apprehension or prosecution of offenders;
• Whether disclosure would affect the economic interests of the whole or part of the United Kingdom;
• Whether disclosure would contribute to ensuring effective oversight of expenditure of public funds and that the public obtain value for money;
• Whether disclosure keeps the public adequately informed of any danger to public health or safety, or to the environment;
• Whether disclosure would impact adversely on safeguarding national security or international relations; and
• Whether disclosure would contribute to ensuring that any public authority with regulatory responsibilities is adequately discharging its functions;
• Whether disclosure would contribute to a debate on a matter of public interest;
• Whether disclosure would prejudice the protection of an individual's right to privacy."

This list is not exhaustive. When thinking about the public interest, think about issues of democracy and of openness - the public is entitled to know what is being done in their name by those who govern them and to see that appropriate standards are being met.

Other considerations may apply to specific types of information. For example, it may be in the public interest to have access to figures relating to the treatment of cancer or the incidence of heart disease.

What is in the public interest is not static, it can change over time and in some cases, one consideration may be more important than others. It is for each authority to work out, on the facts of the case, whether the public interest favours disclosure or withholding of information.

There are some things that an authority should not take into account, for example, possible embarrassment to officials, possible loss of confidence in a public authority, seniority of persons involved and the risk of the applicant misinterpreting the information.

12.2.5 What a refusal notice should include

People do not always have a clear idea of what information public authorities hold and it will probably be quite common for authorities to be asked to supply information which they do not have. If an authority receives a request for information, which it does not have, it usually has to notify the applicant, in writing, within the 20 working day period.

If an authority decides that it does not have to provide information because an exemption applies it must give the applicant a written notice of refusal. This will trigger the right of the applicant to apply to the authority for a review of the decision and then to make a complaint to the Scottish Information Commissioner. The first step in the appeal process is always for the applicant to ask the authority to review its own decision as is described in Module 19.

The refusal notice will explain that the authority holds the information but that it does not consider that it has any obligation to disclose because a particular exemption applies. The authority must explain which exemption applies and why. If the exemption includes a public interest test the authority must explain why it considers that the public interest is best served by withholding the information.

In any response refusing information the authority has to tell the applicant of his or her rights to apply for a review of the decision or to make a complaint to the Scottish Information Commissioner.

The position can be more complicated where certain types of exempt information are concerned. A request for information could be made to find out what the authority actually knows about something, for example about something sensitive which could affect national security and be of use to terrorists. It could be detrimental to the public interest if the authority had to write back and admit that it held no information. In such cases the authority can respond without having to say whether it holds particular information.

Such a response is available for the following exemptions:

• sections 28 to 35 - for example relations within the UK, international relations and national security;
• section 39(1) - health and safety;
• section 41 - communications with Her Majesty.

In addition, an authority does not have to explain why an exemption applies if to do so would itself disclose exempt information.

12.2.6 Historical records

Exemptions will not continue to apply forever . Part 5 of the Act deals with historical records and provides the means for the falling away of certain exemptions under the Act. A record becomes an historical record at the end of a 30 year period which starts at the beginning of the calendar year after the record was created. If there is a file of documents kept together but created at different dates then the file becomes a historical record at the date that the last created document in the file becomes a historical record. This avoids an authority having to segregate individual documents artificially.

Once information becomes an historic record, certain exemptions can no longer be claimed. These are the exemptions for:

• relations within the UK (section 28);
• formulation of Scottish Administration policy (section 29);
• prejudice to the effective conduct of public affairs (section 30);
• safeguarding national security (section 33(1));
• confidentiality (section 36);
• court records (section 37);
• audit functions (section 40); and
• communications with the Royal Family (section 41(a)).

Until the point that information becomes an historical record, these exemptions may apply in the usual way, after the 30 year period they can never be claimed.

Other exemptions fall away after longer periods. After sixty years the exemption that relates to the exercise by the Queen of her prerogative of honour (for example relating to knighting people) no longer applies (section 41(b)). After 100 years information relating to inquiries under the fatal accidents legislation (section 34(2)(b)), law enforcement (section 35), personal census information (section 38(1)(c)) and deceased persons' health records (section 38(1)(d)) can no longer be exempt.

The Scottish Ministers can, by order, only reduce these time periods.

12.4 SUMMARY

The aim of the Act is to provide access to information held by public authorities. However, some information will not necessarily have to be made available as it will be covered by an exemption. There are two types of exemptions: absolute and non-absolute. If an absolute exemption applies, the authority will not have to release the information. Absolute exemptions may apply to information which is available via another route, for example if information is contained in an authority's publication scheme, as well as to information that is not available elsewhere, for example where there is a prohibition on disclosure. If a non-absolute exemption applies then the authority will have to apply a public interest test to establish whether the information should be disclosed or withheld.

12.5 KEYWORDS

12.6 REFERENCES

Section 2 FOISA Effect of exemptions
Section 16 FOISA Refusal of requests
Section 17 FOISA Notice that information is not held
Section 18 FOISA Responses to requests
Section 20 FOISA Requirement for review of a refusal
Sections 57 - 59 FOISA Historical Records

12.7 RESOURCES

Section 60 Code:
www.scotland.gov.uk/about/FCSD/MCG-NW/00018022/Code60.pdf

12.8 SELF ASSESSMENT CHECKLIST

1. Where a file consists of documents created at different times, the file becomes an historical record at the date at which the most-recently created document becomes an historical record. TRUE or FALSE ?

2. Where information would be exempt but in fact a public authority does not hold the information requested, the authority cannot serve a refusal notice on the applicant as the authority does not have the information. TRUE or FALSE ?

3. The test of "substantial prejudice" is not defined but in determining whether it would apply, authorities should consider in the first instance disclosing the information unless the prejudice caused would be real, actual and of significant substance. TRUE or FALSE ?

4. In determining what is in the public interest, authorities should take into account the following :

• the seniority of persons involved in the subject matter;
• possible loss of confidence in government or other public authority; and
• the risk of the applicant misinterpreting the information.

TRUE or FALSE ?

5. If an authority serves a refusal notice in respect of a request for information that is exempt, the authority is not necessarily required to give reasons as to why the exemption applies. TRUE or FALSE?

Click here for answers

12.9 WHAT THEY SAID

"….where does the greater public interest lie? Does it lie in telling the information or keeping it back". (Gordon Jackson - MSP)

"Harm that is claimed to be caused should be real, actual and of significant substance. One does not need to be a lawyer to know that this is a pretty substantial test. There must be a probability of significant prejudice". (Brian Fitzpatrick - MSP)

12.10 CASE STUDY

"The "public interest" has been described as something that itself is of serious concern or benefit to the public not merely of individual interest. It has also been stated that public interest does not mean "of interest to the public" but "in the interest of the public". The term is not defined in the Act and may change over time and according to the circumstances of each situation. Because of this, authorities will need to make a subjective judgement based on the circumstances of each case and in the light of any emerging guidance or best practice".

draft Section 60 Code of Practice

Task

Make a list of 5 things that a public authority may wish to take into account when determining whether to disclose in the public interest. Make a list of 5 things that an authority should not take into account when deciding whether a disclosure is in the public interest.

MODULE 12 - EXEMPTIONS (Continued from Module 7 flowchart)