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3.1 The exemption is subject to both a prejudice test and a public interest test.
3.2 The exemption can only be used where the release of information would, or would be likely to cause prejudice to the relations between administrations.
Prejudice means more than embarrassment; the release of information would have to be sufficient to risk harm to relations - current or future. It is important, to consider the possibility that the disclosure of seemingly innocuous information against the will of another administration could damage the relationship of trust between the administrations and balance this against the case for disclosure.
3.3 To that end, it is very important that there is consultation with other administrations where the information has come from that administration and where disclosure may affect its interests. Consultation will provide the most reliable evidence of whether there is or is not likely to be prejudice to relations within the UK.
3.4 The prejudice likely to be caused by the disclosure of information will have to be considered as each case arises. In addition to those mentioned above, the following are examples of disclosures where there might be prejudice:
3.5 Once it has been ascertained that information would potentially prejudice relations between administrations, departments must assess, in all the circumstances of the case, whether the balance of the public interest comes down for or against disclosure. Does the public interest in having the information disclosed outweigh the public interest that would be protected by non-disclosure?
3.6 The public interest is not a fixed concept and changes over time and from case to case. What will be the correct course of action in one case may not be correct in another. Each case must be treated on its merits. It is important to draw a clear distinction between what is in the public interest, and what the public are interested in. On the other hand, embarrassment and potential confusion are not legitimate reasons for withholding information. The presumption in the Act is in favour of release. Therefore to withhold information, the public interest in applying an exemption must outweigh the public interest in disclosure. If the two are evenly balanced, the information must be disclosed.
3.7 The imperatives for disclosure must be viewed against the reality that the devolution settlement relies on an atmosphere of trust, co-operation, sharing information and respect between the four administrations. The disclosure of information which damaged the fundamental basis for the settlement is likely to be a very significant factor in determining whether information should be disclosed because it may result in the breakdown of relationships thus compromising the effectiveness of the settlement.
3.8 Especially where there has been consultation with another administration, and that administration is opposed to disclosure on reasonable grounds, it is likely that disclosure will only be warranted where there are strong public interest considerations in favour of disclosure. Nevertheless, the case should be considered on its own merits; although the views of another administration one way or the other are likely to be very relevant, they cannot be determinative.
3.9 In weighing up the public interest in the case of section 28, it is important to consider, for example, the following factors:
3.10 As indicated in chapter 2 (above) the MoU between the four administrations make clear that there is a strong commitment to freedom of information whilst respecting (in a way consistent with the Act) confidential information shared between bodies.
3.11 Examples of cases where the public interest might favour withholding information might include requests for:
3.12 Examples of cases which might favour disclosure might include:
These examples are for illustrative purposes only and individual cases must be considered on their merits.
3.13 The MoU sets out the understanding of the United Kingdom Government and Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee of the principles that will underlie relations between them. Annex A provides a full list of relevant statutes and policies.
3.14 When contemplating the release of information under Section 28, appropriate consideration should be given to the views of the other administration(s) (e.g. to give them time to make sufficient representations about the disclosure of the information). As noted above, consultation is likely to provide the most reliable evidence of whether or not there is likely to be prejudice to relations within the UK. Consultation is also clearly envisaged in the MoU between the four administrations. Nevertheless, decisions on disclosure are, ultimately, a matter for the public authority which receives the request.
3.15 Under section 63 of the FOI Act, information contained in historical records (that is to say records over 30 years old) cannot be exempt information under section 28.