2.1 The starting point for section 22 is that it exempts information which is held by a public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not).
2.2 "Publication" includes any speech, writing, programme or other communication in whatever form which is addressed to the public at large or any section of the public.
2.3 This is a very broad term which embraces speech, print and electronic media and both commercial and non-commercial publication. It includes but is not limited to the following:
There are no formal limitations on the form of publication. It is not necessary, for example, for the intended publication to be in recorded form or in a form which will inevitably thereafter be 'reasonably accessible' for the purposes of section 21 of the Act.
Nor is the provision formally limited to the intended publication of unpublished material; information may be capable of falling within the terms of section 22 even if it has already had some limited, perhaps unauthorised publication, for example, the material may have been prematurely 'leaked'.
"With a view to publication"
2.4 Section 22 will apply only if the information is held with a view to its publication at some future date. This will plainly cover a case where there is a firm intention on the part of a public authority that the information will be published, although the date of publication does not have to be pre-determined. Equally plainly, the fact that a decision on whether or not to publish is pending will not suffice: there must be an actual view to publication.
2.5 Section 22 will not apply if the intention to publish is formed only after the FOI request has been received: unless the information is exempt under another provision, it will have to be supplied in response to that request. It is not open to public authorities to refuse to comply with FOI requests by forming a view to publication - it must already have that view. Having formed the view, however (and complied with the original request), if future requests are received prior to the date of publication, section 22 may apply.
2.6 It is reasonably clear that the view to publication need not be the sole purpose for which the information is held by the public authority. The better view is also probably that so long as the information is in fact held with a view to publication, it does not matter for how many, or what, other reasons the information is also held; publication does not, in other words, have to be the, or a, main reason for holding the information.
2.7 Section 22 provides expressly that the public authority which holds the information does not have to intend to publish the information itself. It clearly applies, therefore, where a public authority intends to pass the information to some other person in order for it to be published - for example where material is not published 'in house' by a department but is instead published through an agent or other publisher. It is also arguable that it applies in cases where, although the public authority has no intention of its own to publish, it holds information because, or where it is aware that, someone else intends to publish it.
Example:
2.8 The 'view to publication' must be a current and continuing view. Information contained in draft documents intended for publication will be covered by section 22 whilst that document is the 'current' draft. However, once a draft has been superseded, it is unlikely that any information which was rejected and not included in the subsequent draft will continue to be exempt under this provision (though other exemptions, including in particular section 36, may well apply) because normally it will no longer be possible to say that the rejected material is held with a view to its publication. The same applies once the final text has been published: any information contained in previous drafts which have not made it into the published version will not be exempt under section 22 (unless there is a separate intention to publish that information).
2.9 Similarly, if, at any time, a public authority changes its mind about publication, section 22 will thereupon cease to apply to subsequent FOI requests which are received. The same will apply if it is a third person who intends to publish; once the public authority knows that it no longer holds the information with a view to its publication, it ceases to be exempt. This does not undermine previous refusals of FOI requests for the information on the basis of section 22, provided that there was a genuine intention to publish at the time the request was received.
2.10 There may be circumstances in which a public authority had intended to publish information on a certain future date, but where it subsequently appeared to it that bringing forward the publication date was desirable, perhaps as a result of reconsidering the matter in the light of the request. Although section 22(1)(c) depends for its application on its being reasonable to withhold the information until the date originally thought of, there is no reason to construe it so narrowly as to operate on an all or nothing basis - publication on the original date or immediate disclosure to the applicant. The evident emphasis is on the view to postponing publication, and so long as the intention to publish is clear, it may be possible to regard an intention to delay for the longer period as encompassing a view to delay for the shorter period. That would allow an authority to bring forward a publication date in response to an individual request for information without jeopardising its ability to rely on section 22.
Section 22(1)(c): reasonable withholding, and the public interest balance
2.11 As explained above, there are two qualifications to section 22; a request for information may be refused in reliance on this provision only if:
2.12 The precise interaction between these two provisions is not clear, since both effectively require a judgement in the round, about the respective merits of immediate disclosure in response to an individual request on the one hand, as against subsequent general disclosure on the other. In practice, departments may find it convenient to consider all the relevant circumstances of the situation and determine whether the public interest, in immediate disclosure of the information, outweighs the public interest in delaying until general publication, paying particular attention to the reasonableness of the date of publication.
2.13 The public interest balance which needs to be undertaken in the context of section 22 is of a rather special nature. It focuses principally on the question of timing. The crucial test is whether it is reasonable to withhold the information until the intended date of future publication, whether or not that date is specified. The key issue is not whether to disclose (that is a foregone conclusion) but when (and how). The point of principle is not in issue. The Act therefore allows the public authority a measure of handling latitude. But that latitude is subject to limitations of reasonableness.
2.14 The public interest in permitting public authorities to publish information in a manner and form and at a time of their own choosing is important. It is a part of the effective conduct of public affairs that the general publication of information is a conveniently planned and managed activity within the reasonable control of public authorities. Where they have taken the decision in principle to publish, public authorities do have a reasonable entitlement to make their own arrangements to do so.
2.15 The following are examples of the sorts of consideration which may also be relevant.
2.16 Departments should also bear especially in mind in this context that the FOI right of access is to information, and not documents. It may for example be in the public interest to disclose some of the information contained in a report due to be made public without disclosing all of the information contained in the report.
The duty to confirm or deny
2.17 The duty to confirm or deny imposed is excluded if confirmation or denial would, in itself, involve supplying information to which section 22 applies. The public interest test applies to this exclusion also.