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Section 22 - Information Intended for Future Publication

Chapters: 01 | 02 | 03 | 04

Chapter 01: The exemption under Section 22

Stating the exemption

Section 22 of the Freedom of Information Act provides that:

Information is exempt information if -
- (a) the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not),
- (b) the information was already held with a view to such publication at the time when the request for information was made, and
- (c) it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to in paragraph (a).
The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1 (1)(a) would involve the disclosure of any information (whether or not already recorded) which falls within subsection (1).

Introduction

1.1 Section 22 relates closely to section 21:

both recognise that it is desirable for public authorities to proactively place information in the public domain and that this should be encouraged;
both mark out the role of the FOI right of access as being 'supplementary' to the existing information provision.

1.2 While section 21 gives dominance over the access rights to both existing legal regimes for access to information and published ('reasonably accessible') information, section 22 can be regarded as to some degree 'preceding' section 21 by displacing the access rights in the case of information which is intended for publication but which has not yet reached that stage. (There are some other differences of detail between the two provisions, and these are considered below).

1.3 There are two distinct policy considerations underlying this provision. Not only does the Act acknowledge the desirability of information being freely available in its own right - but also, where it is intended to make information available, public authorities must, within reason, have space to be able to determine their own publication timetables and deal with the necessary preparation, administration and context of publication. Section 22 recognises that the happenstance of individual requests for information should not determine the publication timetables of public authorities, for example by forcing them into premature publication. This protection is afforded whether it is the public authority itself or another person which intends to publish.

1.4 But nor can public authorities use publication timetables unreasonably to suppress information which would otherwise be disclosable under FOIA. And in particular section 22 does not licence public authorities to avoid disclosure under FOI by 'deciding' to publish information upon receiving an FOI request - section 22 applies only if there is already an intention to publish at the time the request is received.

1.5 Section 22 is subject to two important qualifications:

it must be reasonable in all the circumstances to withhold the information until the date of publication; and
the public interest test must be satisfied.

These conditions recognise that in some circumstances, there will be a genuine public interest in the public knowing the information prior to the intended publication date; and public authorities should not be able to avoid putting information in the public domain by adopting unreasonable publication timetables or an 'intention' to publish where there is little prospect of that intention being realised within the reasonable future.