Chapters: 01 | 02 | 03 | 04 | annex A
2.1 Section 33 is a prejudice-based exemption. Thus the test for exemption will be whether or not the functions referred to in this section would, or would be likely to, be prejudiced by disclosure. Section 33 is also subject to the public interest test set out in Section 2 of the Act.
2.2 Under section 33 (3), the obligation to confirm or deny does not arise in relation to exempt information under section 33(1).
2.3 Under Section 63(1) information contained in a historical record cannot be exempt by virtue of section 33. That means that this exemption cannot apply to information which is contained in a record more than 30 years old.
2.4 While much of the information that an auditor holds could be disclosed and may be prepared with a view to publication, there may be cases where disclosure would prejudice the audit function.
2.5 Disclosure might prejudice audit functions, for example, in the following ways:
2.6 If it is decided that information subject to an FOI request would potentially be covered by section 33, public authorities will need to consider the public interest test. The balance to be struck is to whether the public interest in withholding information outweighs the public interest in disclosure. Applications will, in practice, need to be determined on a case by case basis and may, in difficult cases, require legal advice.
2.7 There is a strong public interest in ensuring that auditors can effectively carry out audits of public authorities. Much of the information that auditors produce is made available for the same general public interest reasons that support the principles of the FOI Act. These include:
2.8 While the nature, degree and probability of any likely prejudice must always be taken into account, there is a clear public interest in good audit of public authorities. The audit process facilitates the accountability and transparency of public authorities for decisions taken by them, which in turn facilitates accountability and transparency in the spending of public money. And most value-for-money audits lead to a public report with these express aims. There is therefore a clear public interest in protecting the effectiveness of the audit process. But there is also a counter-balancing public interest in making available information which would lead to greater public confidence in the integrity of the audit process by allowing scrutiny, not only of the audited body, but also the auditor's performance. In many cases the balance of the public interest will change over time, with the key issue likely to be whether the final report has been published (subject to the issues discussed at paragraph 2.6).
2.9 In the majority of circumstances there will be a significant potential for prejudice to the audit function if details of an audit are disclosed while it is still taking place. Disclosure of information prior to publication might jeopardise effective audit and might make the audited body less likely to co-operate fully with the auditor, neither of which would be in the public interest. Even where an auditor has statutory powers to access the information necessary to perform the audit, premature disclosure might delay, disrupt or damage the audit process, or make it less likely that the audited body and third parties will volunteer useful information to the auditor.
2.10 Moreover, even after the publication of the final report, officials will have carefully to weigh the public interest when dealing with requests for background information (including draft reports) for the reasons set out below.
2.11 On the one hand there may be a public interest in disclosing information, such as background papers and draft reports, which would show the thoroughness of the auditors' work and the process by which conclusions were arrived at. However, information contained in background papers is not subject to the same consultation and checking process as a final report. This information may consequently be untrue or misleading. The process of discussing the auditors' findings prior to publication prevents auditors publishing unwarranted criticism. The effects of disclosing such material on the audit process will need to be carefully considered as part of weighing up the public interest.
2.12 There may be occasions where an auditor does not publish its final report. This is likely to be in instances where either the audited body commissions a report into some aspect of its organisation or performance, or where the auditor decides to complete a report for the management of the public body for similar reasons. There is an obvious public interest in ensuring that public bodies improve their efficiency and the delivery of services. Experience has shown that such reports are often enhanced by the frankness and candour with which the advice is given. Releasing this information might therefore reduce the effectiveness of the reports and in turn reduce their usefulness to the public body being audited.
2.13 Auditing departments and agencies will need to be aware of the confidentiality requirements of legislation that governs the particular bodies they audit. For example the external auditors of the Inland Revenue, the NAO, are bound by the Finance Act 1989, which makes it a criminal offence to disclose taxpayer's information.