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Introduction to exemptions

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Chapter 08: When would I have to use an exemption?

There are two parts to the right of access to information on request under the FOI Act. An applicant has:

the right to be informed in writing by the authority whether it holds the information requested and;
if that is the case, the right to have that information communicated to him/her.

If you or your public authority determine either that an absolute exemption applies to the information requested, or that a qualified exemption applies and it is in the public interest not to release information requested, you can withhold the information.

If you refuse a request for information you must inform the applicant. An exemption must be stated and an explanation provided why that exemption applies to the information they have requested.

Applying an exemption:

All but one of the exemptions (section 21) include both an exemption from the duty to communicate the information requested and an exemption of the duty to confirm of deny whether the information is held.

If an exemption of the duty to confirm or deny whether the information is held applies to a request, then the duty to communicate the information does not arise.

In practice, public authorities are more likely to:

determine whether the information is exempt from the right of access to the substance of the information; and
subsequently go on to consider whether the duty to confirm or deny whether the information is held is also excluded.

(i) Withholding the information requested:

Public authorities can only withhold information if:

the information requested falls within the terms of an exemption; and
if a qualified exemption applies, the balance of the public interest comes down in favour of not disclosing the information.

Several exemptions turn on the effect, or likely effect of the disclosure of the information being requested. The exemptions provide that information is exempt if its disclosure would, or would be likely to, prejudice certain matters.

Information cannot be withheld simply because it is felt its release would embarrass public authorities or officials.

In evaluating the effect of disclosing information that may fall within such an exemption it will be necessary for you to consider the full context of that disclosure, and to make a risk assessment of the disclosure.

If you are uncertain about whether an exemption should apply to the information request you receive, you must refer the case to your FOI team within your department.

(ii) Neither Confirming nor Denying that the information is held:

All the exemptions apart from section 21 (information accessible to applicant by other means) also provide an exemption to the duty to confirm or deny whether the public authority holds the requested information.

There may be situations where, even though information is exempt from the duty to communicate it the applicant, there is no reason why the public authority cannot confirm or deny whether the information is held.

For example:

Details of the technical specifications of a military aircraft is likely to be exempt from the right of access to the content of the information by virtue of section 26 of the FOI Act. Its disclosure might prejudice the defence of the British Isles or the capability, effectiveness and security of the armed forces. But the same harm may not result from confirming or denying whether the information is held.

Such a request may therefore be responded to by:

confirming that the technical specification is held; and
refusing to communicate the specification to the applicant

However there may remain circumstances in which even to confirm - or deny - that information is held could in itself be contrary to the public interest.

For example:

For a public authority even to confirm or deny that it holds information supplied by the Secret Intelligence Service would itself indicate the involvement or non-involvement of the Secret Intelligence Service and the duty to confirm or deny would be excluded in respect of that information under section 23.

Such a request may be responded to by:

refusing to confirm or deny whether the information is held.
it is not necessary to go on to cite an exemption from the duty to communicate the information.

To refuse to confirm or deny whether information is held is a distinct decision from withholding the information itself and needs to be taken entirely on its own terms.

An exemption to the duty to confirm of deny whether information is held may also be subject to a public interest evaluation in the same way as an exemption to communicate the information itself.

A decision to neither confirm nor deny that the information is held must consider whether:

the exemption of the duty to confirm of deny if the information is held is engaged; and
(if that exemption is subject to a public interest test) the balance of the public interest is for or against confirming or denying that the information is held.

Where an authority reaches the conclusion that it has no obligation under the Act to state whether it holds the information requested, the usual manner of doing so is to say that the authority 'will neither confirm nor deny whether it holds the information'.